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Judges are starting to restrain Donald Trump and Elon Musk, doing the work the legislative branch and activists seem unable to muster. The number of rulings pushing back against the President’s barrage of executive actions keeps climbing, as courts have halted plans to shut down congressionally authorized agencies, transfer transgender women in the prison system to male-only prisons, and offer unfunded buyouts to millions of federal employees. Judges were even working on it over the weekend, with one issuing an emergency order early Saturday to temporarily restrict Elon Musk’s team from access to the highly sensitive Treasury Department’s payment system. At least 40 lawsuits are rushing the legal system to oppose some aspects of the administration’s efforts.
Brian Schatz was counting on all of this. The senior Senator from Hawaii has emerged as one of Democrats’ standout fighters in the first three weeks of the second Trump era, thanks in part to his meeting the moment with hair-on-fire passion while still stressing a steady-as-she-goes long view. Schatz is working off a playbook that assumes the courts, remade over the last two decades to be decidedly right-of-center, will stick to the law as the mainstream legal community has long interpreted it.
“I’m not here to suggest that people shouldn’t be alarmed,” he told The New Yorker. “I think they should be alarmed, but I also think that one of Trump’s great advantages is that he’s a very effective bluffer. And most of this stuff is going to cause a ton of damage, but will eventually be found to be illegal.”
It’s lost on few in Washington that Schatz is having a moment. As many Democrats in Congress have struggled to respond to the fire hose of disruption—at times seeming downright doddering in response to the White House’s potential upending of the constitutional order—the 53-year-old Schatz has helped his party find their footing.
Yet even Schatz understands his form of The Resistance is only nibbling at the edges. “There’s very little we can do but to scream about it and cause delays at the margins,” Schatz told New York last week. He pointed to Senate Democrats recently refusing to give Republicans a unanimous go-ahead on a procedural vote. The net cost: “all of 12 minutes” of delay. “So people need to understand there is no magic button called ‘courageously obstruct,’” he said.
Schatz’s background as a former aid worker in Africa is proving especially apt for this moment, making him possibly the most effective spokesman for the pushback against Trump’s assault on foreign aid, despite some prominent Democrats arguing it’s a fight their party should concede. Even then, Schatz is stressing that the center will hold thanks to the resiliency of the courts.
“A stable world means a stable America,” Schatz said a week ago in front of the headquarters of the U.S. Agency for International Development, doing his level best to buck-up soon-to-be-fired employees who at that point had only been abruptly locked out of their office. “They are counting on some sense of inevitability. This is a bluff. It is a harmful, dangerous, killer bluff. But they don’t have the law on their side.”
That was last Monday. On Friday, workers riding a cherry-picker removed the signage outside of U.S. AID at the precise spot where Schatz had delivered his pep talk. They also put wide black tape over U.S. AID’s name on signposts around the headquarters, effectively vanishing it from the map. And then that very afternoon, a district judge nominated by Trump in 2019, blocked the administration’s plan to put 2,200 U.S. AID employees on administrative leave and withdraw nearly all of the agency’s workers from overseas. The ruling was to allow the court to hear arguments from the administration and unions representing many of the agency’s workers about the legality of shutting down an agency authorized by Congress.
Yet even if Trump doesn’t get to, as Musk crowed, feed “U.S.A.I.D. into the wood chipper,” the agency’s work and reputation has still been damaged. And the fact that desperately needed food and medicine has been made into a political football says as much about this moment as anything.
And of course, it’s worth remembering, it’s only been three weeks.
Which is why so much of Washington is looking to the courts as the bulwark against Trumpism’s total domination. But assuming the judiciary knocks down the administration’s most disruptive efforts—no sure thing—there’s still the fear that Trump might barrel forward with what a judge expressly told him he could not do. At that point, the debate over whether we’re in the midst of a constitutional crisis will be over. So, for now, plugged-in players in D.C watch as a far-flung coalition of anti-Trump forces look to obstruction as a tool but not an answer, and hold to the belief that judges can curb most of the President’s overreach.
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