The Fight for the Rule of Law is On
Don't be deceived by carnival hucksterism. The Trump Train is already derailing.
Over the last twenty years, I’ve written nearly 2,000 articles, including some long ones that took many days of research, revision, and editing. Some find an audience, others don’t. That’s the nature of the business.
Earlier this week, though, I spent about fifteen minutes on a spontaneous Facebook post, only to watch it go viral (>16k 19k 21k 32k shares and counting). You never know! So I’ve edited and enhanced that post here.
Hello!
I'm posting in response to the many sincerely anguished claims that nothing is being done to stop Trump. The anguish is totally understandable, but the claim is not reflective of the facts. Actually, a lot is being done. Here’s a very partial list, with an over-emphasis on lawsuits since I am, at present, a law professor:
Represented by Public Citizen Litigation Group and State Democracy Defenders Fund, the Alliance for Retired Americans, the American Federation of Government Employees (AFGE), and the Service Employees International Union (SEIU) filed suit on Monday against the Treasury Department for sharing confidential data with Elon Musk’s DOGE gang. Go to Public Citizen's website to learn all about this lawsuit, which is very likely to prevail, even in front of conservative judges.
On the illegal and unconstitutional closure of USAID, appearing with other Democratic lawmakers outside USAID offices on Monday, Representative Jamie Raskin (D-Md.) shouted, “Elon Musk, you didn't create USAID. The United States Congress did for the American people… like Elon Musk did not create USAID, he doesn't have the power to destroy it. And who's going to stop him? We are… This a constitutional crisis that we are in today.” That is exactly correct. The rule of law has not evaporated, and neither the president nor his unelected advisors can simply disobey laws passed by Congress. Lawsuits have also been filed in this matter, and are also likely to prevail. (It’s possible that these suits will test doctrines of the “unitary executive” and “impoundment.” We’ll see.)
On the war on trans people, on Tuesday, a judge has slapped a temporary injunction against Trump's cruel and anti-science attempt to move trans women into men's prisons. This is just an incremental victory, but it is a victory nonetheless, and was not a close case, according to the judge.
Hakeem Jeffries, who has been speaking with moral clarity and strength, has announced lawsuits have been filed regarding the firings of inspectors general.
National Security Counselors filed a suit arguing that DOGE meets the requirements to be a federal advisory committee and is therefore legally required to have "fairly balanced" representation, keep regular minutes of meetings and allow public access to meetings. Clearly accurate.
Eighteen state attorneys general and a slew of immigrants' rights groups brought swift legal action against Trump after he signed his executive order seeking to ban birthright citizenship for some children born in the U.S., arguing that it violates the Fourteenth Amendment. Obviously, clearly unconstitutional. A judge immediately enjoined these actions. Said the judge (a Reagan appointee), “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.”
Trump’s plan to make non-at-will federal employees easier to fire, “Schedule F,” has been challenged in court by the National Treasury Employees Union, which represents employees in 37 agencies and departments. I wrote about the strong likelihood that this scheme would fail back in November.
Several immigrant rights groups in the United States, as well as the American Civil Liberties Union (ACLU), have filed a lawsuit challenging President Donald Trump’s ban on asylum claims.
GLAD Law and the National Center For Lesbian Rights (NCLR) have sued to stop Trump's ban on trans people in the military.
That’s just a sample. Here’s a compendium of all the lawsuits against the last two weeks of Trump administration actions, by Just Security.
Yes, there are Trump judges in the courts, and if Aileen Cannon types get these cases, Trump may prevail. But most judges are not like her. These actions are clearly illegal and/or unconstitutional, and they WILL be stopped.
It’s not even clear that these actions are meant to take effect. Like Trump’s outrageous suggestion to ethnically cleanse Gaza, or his tariffs on Canada and Mexico, a lot of these actions seem like reality show hucksterism. This does work, of course; I think Trump “won” the tariff battle, since even though anyone reading the fine print knows that he didn’t extract any new concessions from Canada and Mexico, most people don’t read the fine print. That’s a “victory.”
It’s also a victory if we’re overwhelmed. The pace and frequency of these offenses is meant to flood the zone with shit, as Steve Bannon put it; to confuse, bamboozle, and immobilize us. This is “Wizard of Oz” type carnival trickery. They promised that they’d do "Shock and Awe" and that's what they’ve done. Nothing here should be surprising. Do not lose your composure. Shock and Awe is up to YOU. I am not shocked, I am not in awe. You don’t have to be either.
As Ezra Klein put it in a recent piece, Don’t Believe Him. Executive orders aren’t a sign of strength; they’re a sign of weakness. Trump can’t get these things through Congress, and has no real mandate. All the talk of vibe shift is rhetorical bullshit; don’t believe it and don’t comply! Meanwhile, these guys are wildly overreaching, alienating key constituencies and not focusing on the issues that actually put them into office in the first place. Even the price of eggs is soaring — Waffle House just instituted an egg surcharge. This is very good news. The honeymoon is already over.
Oh, and the much-maligned “mainstream media” has reported on all of these. I’d love it if progressives would stop attacking journalists when we are being threatened by SLAPP suits and FBI investigations. Who do you think you're helping by doing that?
Yes, of course, people are already being harmed: trans people who can’t access life-saving medical care (if I hear one more person talk about trans kids playing sports, I’m going to scream; that is a fake issue, but taking away meds from thousands of people is real), people who depend on USAID programs, migrants and people who look like migrants, federal workers, and many more. I sympathize with the dread and angst. I’ve written about such feelings in these pages, and I think it’s healthy to feel them.
But I have friends who have crossed over into fear, panic, and hysteria, and I’m reading many journalistic takes that are similar. So let’s get a grip on ourselves. I’m not saying things are fine; they aren’t. I’m saying that many, many people — NGOs, politicians, federal employees — are already fighting back. Some are already winning.
It’s time to stop with the doomsaying and gloomsaying. Want to make a difference? Give money to Public Citizen, GLAD, Indivisible, MoveOn, the ACLU, and similar groups. Stop whinging about Democrats not doing enough, read what they actually are doing, and then do more yourself. Show up at marches. Help protect innocent people from ICE. Do simple symbolic things, like changing your social media pictures to support people who are not as safe as you are. Recognize that maintaining composure is, itself, a form of resistance to state terror.
Just like we should not obey in advance, we should not panic in advance either. This is not the end of democracy. That’s just what the bad guys want you to think. The fight is on. Join it.
Here’s some great stuff I’ve been reading.
Here’s a piece similar to this one, with a whole other set of things people are doing to stop the Trump onslaught, in
.Another similar piece by my colleague Noah Feldman at Bloomberg argues that our legal system is indeed up to the Trumpist challenge.
The newly independent
is on a tear this week. Here’s one of his excellent Trump takes.The New York Times did a great data-driven piece showing how the climate crisis is causing home values in many areas to plummet.
My friend
, who’s been focused on AI before it was fashionable, has a bit of advice about how you might prepare for the economic world as we know it to end.Here’s that Ezra Klein piece I mentioned.
- has a strongly-worded reminder to Not Vibe-Shift in Advance. (My phrase not his.) Totally, totally agree. Fuck the damn Vibe Shift, I’m not going along with it and neither should you.
Reliably,
has a thorough, attentive look at the Trump-Musk odiousness.Finally, if you don’t want to read anything about politics,
is in peak form in his new essay. “Consensus reality shatters into a hypermediated hall of mirrors shot through with elite cruelty, revivified occult forces, tangible conspiracies, nihilistic youth cultures, mindfuck technologies.” God that’s good.
I truly appreciate your positive, activist call to to action. I also loved Ezra Klein’s rousing Don’t Believe Him audio essay (I listened to it three times.) Connecticut senator Chris Murphy, AOC, and Bernie have also been communicating well on social media, encouraging people to take action and not be intimidated.
I worry that while the long list of lawsuits are important, relying on the courts may be insufficient. The grafting of Musk and the tech oligarchs on to the existing MAGA movement is creating a true climate of fear. Not of Brown Shirts, as we might have previously imagined, but of the loss of livelihoods. Threats of losing a job if you speak up, of mass firings, and the withdrawal of federal funds to institutions in the nonprofit sector are gaining momentum and are extremely intimidating. This type of fear is not something we’ve seen in this country since McCarthyism.
In the medium term It’s possible that Trump’s circus will be too disorganized to get much done legally. We just have to hope we’re still a nation of laws.