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The Legal Resistance to President Trump

Josh Blackman

Hillary Clinton was destined to shatter the glass ceiling and
pack the Supreme Court with liberal lions. The Left dreamed of the
day when federalism, the right to bear arms, and religious liberty
would be exiled from the Constitution, replaced by the progressive
jurisprudence they not-so-patiently waited for. Instead, on
November 8, 2016, Donald Trump shattered those dreams. The Left
awoke from this unfathomable nightmare to a painful hangover: The
45th president would shift the Supreme Court, and the entire
federal judiciary, to the right. Rather than advancing our
constitutional law closer to Justice Sotomayor’s wing of the Court,
the new judges would entrench Justice Scalia’s jurisprudence.

Refusing to accept the outcome of the election, progressive
legal groups rallied around a hashtag that soon became a movement:
#Resist. The New York Times reported that advocacy
organizations “put aside institutional rivalries” to make “legal
resistance one of the defining attributes of the Trump era.” There
is nothing novel about sore-loser litigiousness. Republicans
resorted to this strategy over the last eight years. What is
remarkable, however, is the breadth and speed of the successes of
the anti-Trump lawyers in impeding a presidency. Their movement was
advanced by Obama-administration holdovers within the executive
branch, and even by federal judges, who abandoned their traditional
role out of a fear that Donald Trump posed an existential threat to
the republic.

The self-professed resistance must be understood for what it is:
a thinly veiled legal revolt. Our Constitution has built-in safety
valves to remove an unfit president, whether through impeachment or
through a declaration of incapacity. But the exercise of those
powers was not assigned to the judiciary. Judges can call balls and
strikes; they can’t throw the president out of the game.
Fortunately, the Supreme Court has remained a voice of reason
within the federal judiciary — a role that it must maintain
even as President Trump continues to disrupt legal norms. This
administration will come to an end sooner or later. But the
precedents set during this period will linger far, far longer.

The thinly veiled legal
revolt against President Trump playing out in the courts will set
lasting and dangerous precedents.

The first conflict came very early. Trump’s January 27 executive
order, which restricted entry into the United States, sent
shockwaves throughout our legal order. For 90 days, the admission
of certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria,
and Yemen — whose admission was deemed “detrimental” to
American interests — were to be kept out. Almost immediately,
lawyers filed suit on behalf of travelers from these nations who
were being detained at airports, yet the policy would receive no
meaningful defense in court.

Because Democrats had delayed the confirmation of Senator Jeff
Sessions as attorney general, the agency was still headed by Sally
Yates, a holdover from the Obama administration, when Trump signed
the executive order. Finding that the order was not “wise or just,”
she instructed the Justice Department to stand down. Rather than
resigning — the honorable choice if she believed the policy
to be unconstitutional — she simply stood by as federal
courts ruled against the government. President Trump had no choice
but to fire Yates, who willingly served herself up as the first
martyr of the legal resistance.

Then the resistance spread. The Washington Post
reported that lawyers within the Justice Department and other
federal agencies sought to “push back against the new president’s
initiatives” as part of a “resistance from within.” Concerns about
the so-called Deep State have been greatly exaggerated, but lawyers
in the civil service are all too willing to talk to the press about
their efforts to resist the president’s agenda. The public effects
of such internal insubordination are hard to calculate because they
are largely unseen.

Soon, the Washington State attorney general sought a temporary
restraining order to halt the travel ban nationwide — a
challenge that was planned well before the order had even been
signed. With Yates now out of the picture, administration lawyers
mounted a good-faith defense of the policy, though one that was not
victorious in court. After only an hour of oral argument, U.S.
district judge James L. Robart in Seattle ruled that the federal
government must immediately cease enforcing the executive
order.

Robart’s seven-page order offered only the most threadbare
analysis, giving no indication whether he thought the policy
violated the due-process clause, the equal-protection clause, the
establishment clause, or the free-exercise clause. Solely on the
basis of this hasty and incomplete opinion, immigration officials
around the country and consular officials around the globe were now
enjoined from implementing the order. Less than a week later, a
panel of the Ninth Circuit Court of Appeals affirmed the district
court’s order — even though temporary restraining orders are
not subject to appeal. The court nonetheless reached out to resolve
difficult constitutional questions in this preliminary phase of the
litigation.

This judicial blitz was a dry run of the legal resistance’s game
plan. It would be repeated again and again with respect to the
second iteration of the travel ban, sanctuary-city policies, and
efforts to unwind the Obama administration’s regulatory agenda.
First, President Trump takes an executive action. Second, litigants
file suit in multiple friendly forums. Third, the court disregards
prudential barriers that restrict suits against the executive
— a role exactly opposite to the one that the judiciary
usually plays. Fourth, looking beyond the four corners of the
policy, the court throws out the policy by psychoanalyzing the
commander-in-chief based on his tweets, cable-news interviews, and
even campaign statements. Finally, without affording the president
the traditional deference his office is due, the court issues a
nationwide injunction, stretching far beyond the judges’
jurisdiction.

By March, with several victories under its belt, the legal
resistance had been fortified. National Public Radio anointed David
Cole, the legal director of the American Civil Liberties Union, as
“the man at the heart of the legal resistance to the Trump agenda.”
Harvard Law professor Laurence Tribe was confirmed as the “Citizen
Attorney General” of a progressive group calling itself the “Shadow
Cabinet.” CNN enthused that the “legal resistance … already has
octopus-like tentacles with different groups seeking to unravel or
block” President Trump’s agenda.

But over the summer, their winning streak would come to an end.
On three separate occasions, the Ninth Circuit Court of Appeals
ruled against the Trump administration concerning the travel ban.
And on all three occasions, the Supreme Court — without
recorded dissent — pushed back on the San Francisco-based
court. While the decisions were not unqualified victories for the
president, the justices consistently voted to restore the scope of
Trump’s executive power to deny entry to aliens he deemed
detrimental to American interests.

Justices Thomas, Alito, and Gorsuch would have allowed the
travel ban to go into effect in its entirety while the appeals
process played out. They explained that the “government has made a
strong showing that it is likely to succeed” on its claim that the
order was lawful, and that a decision against the government would
“interfer[e] with its compelling need to provide for the Nation’s
security.” This opinion, according to Jack Goldsmith of Harvard Law
School, served to “turn down the temperature, and to interject a
better model of behavior into our corroded institutions and
discourteous civil discourse.” The lower courts, alas, have not yet
taken the hint. As it stands now, the justices are considering
whether to dismiss the appeals in light of the president’s
September 24, 2017 proclamation, which imposed a quasi-permanent
travel ban for aliens from seven nations.

The legal resistance often repeats the refrain that our polity
must resist “normalizing” Trump as president. Courts,
unfortunately, have followed the lead. When judges treat this
president as anything other than normal — such as when they
engage in law-office psychiatry — it sends a signal to the
public that the chief executive is not as legitimate as his
predecessors. Trump was elected through the same constitutional
process by which judges received their lifetime commissions. He
should be treated as such. It is true that Trump consistently
disrupts all political norms. The courts should not respond in kind
by disrupting judicial norms.

In Federalist No. 78, Alexander Hamilton wrote that
judges can exercise “neither FORCE nor WILL but merely judgment.”
Judge William H. Pryor Jr. of the Eleventh Circuit Court of Appeals
observed that “Hamilton’s point was that we must depend on the
persuasiveness of our written opinions to command the respect of
our fellow citizens.” As a result, he wrote, judges have “the
foremost responsibility of safeguarding [their own]
independence.”

The nationwide injunctions against President Trump are grounded
far more in “will” than in “judgment.” They reflect a sincere
concern that the 45th president poses an unprecedented risk and
that his acts warrant far more scrutiny than did those of his
predecessors. This approach, though well intentioned, is profoundly
flawed. In a recent speech, Justice Gorsuch offered some important
words of wisdom for the rest of the judiciary: “Judges should wear
robes,” he explained, “not capes.” Only the political process, and
not what was designed to be the least dangerous branch, can save us
from the consequences of our own decisions.

Josh
Blackman
is a constitutional-law professor at the South Texas
College of Law in Houston, an adjunct scholar at the Cato
Institute, and the author of Unraveled: Obamacare, Religious Liberty, and
Executive Power
.