This is the next of our series of missives on our unfinished work to restore the promise of our country and its government. Each will focus on a single element of the many opportunities and challenges that lie ahead. .
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Trump’s plan could not be clearer. Include in your one hundred executive orders forty that your lawyers tell you are unconstitutional. Assail the courts, even judges you appointed, hoping that the fear you are generating will yield rewards. Bludgeon your friends when you feel like it, as a tool to maintain your control over them. When you do something that generates disapproval from your supporters, pretend you didn’t do it. Lie liberally and shamelessly, and craft different versions of the same lie, tailored to the audience. Say you didn’t say what everyone knows you said.
Blame the courts, Joe Biden, Congress, Jerome Powell, law firms, the media, and then Joe Biden again. Criticize Zelenskyy, praise him again, and then mock him. Deny him what he needs, causing soldiers and civilians to die. Then call yourself a hero.
Elevate revenge. Shut off the vaccines which can prevent the death of poor children around the world, then call that efficiency, or say it makes America great. Walk away from countries whose soldiers stood at our side during world wars and call your negotiating behavior an “art”. Surround yourself with sycophants. Remove your own loyal appointees if Laura Loomer has something bad to say about them. Favor dictatorships over democracy. Randomly fire people when you have no idea of what they do and how valuable they are. Praise yourself endlessly. Never apologize.
Some Help is on the Way
Too slowly but very surely, a bit of help is on the way. Liberals had decided that the courts would bow to Trump at every turn or that he would ignore any federal court order he didn’t like. Any worry about Trump is a fair worry, and District Court Judge James Boasberg is being pushed to the wall on the El Salvador prison plane. However, Trump and his minions have followed numerous temporary restraining orders and will continue to do so. There are several reasons for this.
- Federal judges have considerable powers in finding individual governmental officials in contempt, including Department of Justice attorneys, whom they can suspend or even disbar.
- Financial markets hate uncertainty and would react unfavorably to any non-compliance by Trump.
- Ironically, the Supreme Court gained some credibility with many Republicans by developing their novel and expansive view of presidential immunity in criminal cases.
- Chief Justice John Roberts has already pushed back against Trump on his attack on federal judges. The late-night Supreme Court ruling blocking ICE deportation of scores of Venezuelans has added due process to the ICE equation. So has the release of several ICE detainees by Federal district court judges.
Given the questions asked by Supreme Court Justices at their recent hearing, it is likely that there will be new restrictions on Federal District Court judges protecting plaintiffs by issuing nationwide injunctions. It is popular to say district judges are overreaching, but they are not the ones who are pretending that the Constitution and Bill of Rights doesn’t exist. The Court will make it more difficult to enjoin the Trump administration nationally but will emphasize the process by which class action suits that cover all plaintiffs can advance. If there is little immediate national protection available, lawsuits will proliferate, and injunctions providing relief to only part of the aggrieved population will materialize. There will be patchwork action by the government focusing on geographic areas where their actions aren’t stopped by court order.
The media will paint the limiting of national injunctions as a significant Trump victory, but they will overstate the case. All these court suits include a judicial finding that the plaintiffs are likely to succeed on the merits of the case. Trump has had almost no success getting appellate courts to overturn district court rulings. This will continue.
Where Legal Action Will Succeed
Trump has no chance of overturning birthright citizenship, and no chance of being able to use the Alien Enemies Act of 1798 to authorize deportations without due process. There are several areas of progress. Six months from now, constitutionalists will have had great success in two of these areas:
James Madison would be pleased that due process has been elevated in the consciousness of Americans and even has been recognized by Trump’s Secretary of State Marco Rubio, whom Trump has not recently mocked. Procedural due process is not limited to American citizens. It means the individual must receive notice of the government's action, have a hearing, and have their case decided by a neutral decision-maker.
Happily, litigants are now getting traction on Trump’s illegal freezing of funds that Congress has appropriated. Here, Americans still see every announced cut as a completed act of perfidy, although some of Trump’s actions will be reversed. Among the Trump freezes that have already been thawed are $4 billion to universities through the National Institutes for Health, rules to lower University overhead, payment to USAID contractors, and FEMA funding to states. As bad behavior continues, courts will rely on the 1974 Budget and Impoundment Act, which Trump has ignored. It clearly delineates the steps a President must take to rescind appropriated funds, including gaining approval of both the House and the Senate.
Resisters can celebrate that these litigative efforts will continue. Of course, the other major front for resisters is battles in Congress. The holdup of Trump’s “big, beautiful bill” is over issues that will resonate with voters in November 2026 and thus give Democrats back the House, unless they pull defeat out of the jaws of victory.
For months, the question for Speaker Mike Johnson is whether the enormous Medicaid cuts could fly under the flag of waste, fraud and abuse and thus allow Republicans to avoid this narrative --- Republicans are throwing eight million people off Medicaid. Parents won’t be able to take their child to the emergency room even if she is screaming in pain. Republicans are comforting the comfortable, transferring any savings from Medicaid cuts to enable tax breaks for the rich Americans that least need them.
Shamelessly, Trump insists that he doesn’t support any Medicaid cuts at all. What the Senate under John Thune has realized is that by including tax breaks for the rich, an increase in the debt ceiling, and deep social welfare cuts all in one big bill, there will be no avoiding the negative narrative. An option would have been to include the tax breaks with defense and border spending and put social welfare cuts in a separate bill.
All of which demonstrates what a charade it is. Republicans want to keep Trump happy and a majority of voters happy. The only way to do both under this level of scrutiny is to lie about the impact of budget cuts. Senate and House Republicans will ultimately agree on an approach because they will need to lift the debt ceiling by mid-summer. If there are a score of moderates, they will regret the cuts as being two harsh, and scores of Republicans will label the cuts insufficiently brutal and insane.
The budget reconciliation bill(s) they pass will sink the House Republican majority in November 2026. Plenty of damage will be caused between now and then, but our mid-term success will help us prevent future damage and regain the White House in November of 2028.
Let’s do these three things now.
1) Push Democracy Forward
Attorneys General from Trump-battling states have been at the center of winning lawsuits against unconstitutional executive orders. It’s good to support nonprofit litigators too, including the coalition Democracy Forward. They have good political instincts and have filed 50 lawsuits so far. They are in it for the short term and the long term. Their coalition includes nearly every activist organization that is seeking the most robust legal strategy possible. Since misinformation and misunderstanding of threats is our enemy, it is good to know that the best guidance on legal challenges underway is the Brennan Center for Justice.
2) Ask 12 Republicans to Keep Their Word
In mid-April, twelve House Republicans wrote to Speaker Mike Johnson stressing “we cannot and will not support a final reconciliation bill that includes any reduction in Medicaid coverage for vulnerable populations.” It is time to hold them accountable. Call their offices through the House switchboard at (202) 224-3121 to remind them that we are all watching. They are Reps. David Valadao (R-Calif.), Don Bacon (R-Neb.), Jefferson Van Drew (R-N.J.), Rob Bresnahan (R-Pa.), Juan Ciscomani (R-Ariz.), Jen Kiggans (R-Va.), Young Kim (R-Calif.), Rob Wittman (R-Va.), Nicole Malliotakis (R-N.Y.), Nick LaLota (R-N.Y.), Andrew Garbarino (R-N.Y.), and Jeff Hurd (R-Colo.)
3) Keep This Person in Mind
One could fairly say that our 2024 presidential campaign effort was not without its glitches. It is also fair for this missive to wonder who might be exploring running for President at this very moment. Time to take a first look at what Governor Andy Beshear of Kentucky has to offer. He has won twice in a red state and has walked the picket line with the United Auto Workers. Yes, those two things are in the same sentence.
It's a grind, but we are starting to accumulate some wins. Luckily no one convinced us it would be easy.
David Harrison
Bainbridge Island, Washington
