Calling for the Views of the President-Elect

[This post is co-authored by Will Baude and Richard Re and cross-posted at Re's Judicata.]

When a new presidential administration begins, the executive branch often changes position on some cases pending before the Supreme Court. But why wait till inauguration day to hear the views of the incoming administration?

The TikTok litigation casts this question in stark relief. The statute effectively banning TikTok goes into effect on January 19, the day before President-Elect Donald Trump is slated to begin his second presidential term. Recognizing that deadline, the justices have crafted an expedited briefing schedule with oral argument on January 10.

The Biden administration will of course litigate the case. But Trump has made public statements indicating that he may be more supportive of TikTok. In this situation, it might make sense for Trump to appear as an amicus. As the imminent president, he would hardly be a run-of-the mill friend of the court.

New administrations generally try not to change the executive’s litigation position too much or too often, since doing so can undermine the Solicitor General’s long-term credibility and draw attention to the political nature of the new position. Yet these changes do happen. And when they do, the new administration’s views are often informative. The justices can be receptive to them.

For similar reasons, the justices might especially want to know the President-Elect’s views on the TikTok case. For example, they might want to know how banning TikTok would interact with Trump’s planned domestic and foreign policy plans. They might want to know whether and how the new administration will enforce the law starting January 20. Or they might simply be curious about what a different, new administration thinks about the question presented.

Of course, Amicus Trump would lack the formal trappings of office. For instance, he would not yet have taken his (second) oath of office or be fully in touch with the Nation’s national security system. Yet even with those limitations there is significant room for judicial interest in the views of the future executive branch.

In the past, presidents-elect have generally avoided trying to openly disrupt the policies of their lame-duck predecessors before inauguration day. But that norm may already be fraying, as evidenced by Trump’s stated views, and the logic behind it might be undermined in a time of sharp political polarization. If any incoming president would buck this norm, thereby creating a new one, it is Donald Trump.

It is even possible to imagine that the justices would invite Trump’s views, essentially calling for the views of the president-elect (CVPE). Such a move would also have some appeal in cases like US v. Skrmetti, where the Biden administration’s position is almost surely not the one that the Trump administration will or would adopt, and where the new administration’s position might affect the viability of the case.

The appeal of a CVPE is at its apex in the Tiktok litigation, which involves a decision almost on the eve of a dramatic turnover in the Executive Branch.

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