The second Trump administration appears to have learned some lessons from the first. For instance, even when courts eventually strike down the administration’s policies, there are tactics that can keep those policies in effect long enough to do quite a bit of damage.
The courts can do only so much when the goal of imposing a policy isn’t to win as much as it is to break things and, as F. Scott Fitzgerald wrote in “The Great Gatsby,” to “let other people clean up the mess they had made.”
For all of the judicial interventions we’ve seen in the first eight weeks of the new Trump administration, alarmingly little has changed on the ground. Much of the unlawfully frozen federal money is still frozen; many of the unlawfully fired federal workers are still out of work. Mahmoud Khalil, the Columbia graduate and green card holder arrested March 8 in New York on exceptionally tenuous legal grounds remains in an immigration detention facility in Louisiana.
The central problem isn’t that the courts have upheld legally dubious actions, or even that the White House is openly defying adverse rulings. Rather, it seems that chaos and disruption are themselves key to President Trump’s objective.
Mr. Trump’s March 15 invocation of the Alien Enemies Act in an attempt to speed up his mass deportation effort is a good example of this phenomenon. The 227-year-old statute, which was intended to give the government broad authority over a narrow class of foreign nationals present on these shores during wartime, cannot plausibly be applied to citizens of countries with which we are at peace. Although the statute applies not just during times of declared war, but during periods of “invasion or predatory incursion” as well, that invasion or incursion must be “by any foreign nation or government.”
There may be some allure in referring to unauthorized border crossings as “invasions,” but the White House would be hard pressed to identify which “foreign nation or government” is formally behind them. Labeling the Venezuelan gang Tren de Aragua a foreign terrorist organization — or even, as the executive order calls it, a “hybrid criminal state” — doesn’t mean that it is engaged in an invasion of the United States the way the 1798 Congress used, or intended future politicians to use, the term.
In any event, by invoking the 1798 act, Mr. Trump has used a piece of legislation that expressly provides for judicial oversight. That means courts immediately had a meaningful role to play in pointing out the logical shortcomings of labeling gangs invading armies. They will have a role to play, too, in the even trickier question of how the government proves that individual detainees are members of Tren de Aragua.
Invoking the Alien Enemies Act has a lot in common with a number of Mr. Trump’s other divisive undertakings — like his effort to restrict birthright citizenship by executive order; his use of the Migrant Operations Center at Guantánamo Bay, Cuba, as a short-term way station to detain a small number of foreigners pending their deportation (many of whom have quickly, if expensively, been returned to the United States); and, more recently, the case of Mr. Khalil. In all of these contexts, the odds are better than not that, by the time the litigation challenging the Trump administration’s actions has run its course, judges will rule against the actions of the administration.
Those likely victories, if we can call them that, may prove hollow. Even if the courts rule again and again against Mr. Trump, voiding unlawful immigration arrests and releasing individuals from unlawful immigration detention doesn’t undo the harm they suffered from being arrested and detained in the first place. What remains is the broader fear it instills in immigrant communities that they could be next, and the behavior that is chilled or curtailed as a result. Likewise, ordering the government to turn back on spending taps that it has unlawfully frozen can’t undo the damage suffered by recipients deprived of mission-critical funding in the interim. Blocking an executive order intended to intimidate law firms into not representing former government officials doesn’t un-send the message about other ways the government might seek to retaliate against those who don’t toe the party line. And all of that is assuming the White House actually abides by the decisions of the courts, a point upon which we perhaps cannot rely.
Typically, victims of wrongful conduct can sue for damages, a right provided not just to stop the wrongful behavior while it is happening, but also to redress the injuries they suffered during and because of that conduct. Such suits are available not only to compensate the victims for their losses, but also to punish the bad actors if their conduct was sufficiently malicious. The central idea is that damages aren’t just compensatory; they ought to provide a meaningful deterrent against knowingly wrongful conduct in the first place.
For better or worse, there is no entity in the United States against which it is more difficult to obtain damages than the federal government. Under the doctrine of sovereign immunity, the government itself can be sued for damages only when Congress has authorized it. Those authorizations have, historically, been few and far between; the last significant expansion came in 1976. To account for the difficulty of trying to sue the government directly, the Supreme Court in 1971 recognized circumstances in which victims of egregious violations of constitutional rights can seek damages from the individual federal officers who are responsible, but the court in the last eight years has all but overruled that decision.
Thus, if the courts ultimately find the government’s behavior over these past eight weeks was unlawful or even unconstitutional, it could be a largely empty form of relief, both for the aggrieved parties and the citizenry. Nothing, of course, can make up for the emotional turmoil and upheaval into which the administration has willfully sent too many organizations and individuals to count. There is also nothing to discourage the administration from trying similarly unlawful measures again.
The obvious long-term lesson is for Congress — which, among lots of other things, should make it much easier for victims of wrongful federal behavior to obtain judicial redress. But the shorter-term lesson is for we the people.
The federal courts, to this point, have done a remarkable job of enforcing legal and constitutional limits on the executive branch. And there’s every reason to expect that they will continue to do so. In that respect, the courts may well end up saving the rule of law. But to be fully effective, many of our legal rights depend upon not just judicial remedies, but also political ones. That entails both new legislation and far more aggressive oversight from members of Congress welcome to changing the partisan political environment, and reasserting checks and balances against the other branches of government. All of which will make it a lot harder for presidents to break things in the future.
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