Legal Expert Explains Why 'Illegal and Unconstitutional Action Will Continue' Under Trump and SCOTUS

Legal scholar Erwin Chemerinsky has warned that 'illegal and unconstitutional action will continue' under President Donald Trump if the Supreme Court continues allowing challenged actions to proceed on procedural grounds without reaching their underlying legality.

The University of California, Berkeley School of Law Dean made the argument in an interview with Slate's Amicus podcast after recent rulings involving Trump.

Chemerinsky said the concern is not simply that the Supreme Court has ruled in Trump's favour, but how it has done so.

He argued that the court's conservative majority has increasingly granted the Trump administration relief on threshold procedural questions, including standing and ripeness, without deciding whether the underlying presidential action is lawful.

Why 'Illegal and Unconstitutional Action Will Continue' Matters

'If no one has the ability to go to court to challenge something, then the illegal and unconstitutional action will continue,' Chemerinsky said.

His warning followed the Supreme Court's emergency-docket order last week in a case challenging the White House East Wing replacement project and seeking to halt above-ground construction.

On 31 August, the Supreme Court voted 5-4 to stay a lower-court injunction that had restricted above-ground construction.

The majority said the government was likely to succeed in showing that the National Trust for Historic Preservation lacked Article III standing, while stressing that it was not deciding whether the East Wing project itself was lawful.

Chemerinsky's point was narrower than a claim that the court had formally approved the project. He noted that no justice in the majority said the East Wing construction project itself was legal.

Instead, the Supreme Court allowed construction to continue while further proceedings unfold after concluding that the government was likely to succeed on its argument that the National Trust lacked standing.

That distinction is central to his argument. A court can avoid reaching the merits of a dispute when a claimant does not satisfy procedural requirements, leaving the legality of the government action unresolved.

For Chemerinsky, that procedural route can be decisive because a challenge that never reaches the merits cannot produce a ruling invalidating government conduct.

Trump and SCOTUS Disputes Shift to Procedure

Chemerinsky linked the White House ruling to the Supreme Court's 24 August decision involving Trump's executive order on federal election procedures.

There, the Court stayed a lower-court injunction after concluding that standing and ripeness problems were likely to prevent the states' challenge from proceeding at that stage, without deciding whether the underlying measures were lawful.

'The most blatant constitutional violations will go unchecked unless there's a court to say no,' Chemerinsky warned. 'The reason we give courts the power to strike down executive and legislative acts is the limits of the Constitution are meaningless unless there's someone there to enforce them.'

His criticism focuses on access to judicial review. Standing determines whether a plaintiff has suffered the kind of concrete injury needed to bring a case, while ripeness concerns whether a dispute has developed enough for a court to decide it. In both examples Chemerinsky cites, those procedural questions prevented the court from reaching the core legal issue.

Why Procedural Rulings May Draw Less Attention

Chemerinsky also argued that such decisions can attract less public scrutiny because procedural doctrines are harder to communicate than direct rulings on presidential power.

'That doesn't resonate with people. It's too abstract,' he said. 'So if the Supreme Court would have handed down a ruling on Monday saying destroying the East Wing and building the ballroom is constitutional and legal, that would have, of course, gotten more headlines.'

The legal scholar's warning therefore rests on what remains undecided. In the cases he cited, the Supreme Court did not issue a merits ruling declaring the challenged actions lawful.

The Supreme Court's emergency rulings instead stopped short of deciding the merits, leaving Chemerinsky's broader concern focused on who, if anyone, can get into court to test executive action against constitutional limits.