The sheer number of brazenly unconstitutional actions undertaken by the Trump administration this term has left the legal world dizzy. Each day seems to bring fresh depredations: the investigations and prosecutions of President Trump’s political opponents, the lawsuits against media organizations whose coverage he dislikes, the attempt to end automatic birthright citizenship for children born in the United States.
For those who care about the rule of law, there is an understandable impulse to feverishly track the fate of these actions in court, tallying losses and wins, parsing judicial opinions, searching for signs of effective opposition from a besieged legal order. But that impulse is largely misplaced. As necessary as the courts are in this fight, they are far from sufficient against a figure like Mr. Trump, who refuses to honor the conventions and commitments of constitutional law.
Placing too much faith in the courts in this moment mistakes litigation for resistance. It risks obscuring the greater importance of the political battlefields where the most significant opposition to the administration’s constitutional abuses can and should take place.
Consider a recent example. Four law firms had refused to capitulate to Mr. Trump’s executive orders last year targeting them for their ties to people and causes that he begrudges. Multiple District Court judges later found his orders plainly unconstitutional. This month, when the Justice Department moved to abandon its appeals of those rulings, its retreat was promptly celebrated as a triumph of the rule of law.
But the next day, the Justice Department reversed course. By week’s end, the department was again defending the unconstitutional executive orders. Some critics read the about-face as a sign of the administration’s shambolic incompetence, others as evidence of its internal tensions.
Few said something less comfortable: The legal wrangling did not matter much. Whatever the ultimate legal outcome, the Trump administration’s broader objective — chilling corporate legal resistance — had been accomplished. In the first eight months of Mr. Trump’s first term, big law firms participated in roughly 75 percent of the legal challenges to his executive orders; in the first eight months of his second term, despite far graver abuses, that figure fell to around 15 percent.
The question raised by the law-firm cases — and by so many other gratuitous actions by the Trump administration — is not whether the orders were unconstitutional. That was never in doubt. The question is whether a legal system built on the assumption that those in power have internalized its norms can withstand a president who hasn’t.
In 1897, the judge and legal scholar Oliver Wendell Holmes Jr. introduced the figure of the “bad man” — someone who does not inquire into his moral duty but asks only what will happen to him if he disobeys the law. Law, from this perspective, is not an ethical command but a practical prediction: a forecast of the likelihood of “disagreeable consequences” like fines and imprisonment. The bad man simply determines whether the benefits to him of disobeying the law outweigh the costs of doing so.
Most areas of the law, like contract law and criminal law, can readily handle the bad man: They simply have to ensure that the consequences of violating the law are clear enough and strong enough to dissuade even those who lack moral scruples. But constitutional law is different. It is predicated not on consequences, but on the assumption that those who occupy public office will subordinate self-interest to larger obligations of service. It does not compel compliance so much as it presupposes it. Against a bad man, it has no obvious recourse.
Before entering politics, when, as a businessman, he inhabited the world of contracts, Mr. Trump was an archetypal bad man. He did not treat law as a set of obligations to be honored but as a terrain to be worked. Still, he surely had to consider the consequences of his actions, even if only to figure out how to skirt them.
Now things are different. Mr. Trump commands the apparatus of the state, and he need not worry about losing in court — for what consequences follow if he loses? An adverse legal ruling? To prevail, he only has to continue the contest: creating uncertainty, extending the illusion of legality, imposing costs on his adversaries and converting the very fact of legal contestation into coercive leverage.
What can be done? The answer is not, of course, to abandon the courts entirely. Even in the face of Mr. Trump’s disrespect for the Constitution, courts have an important role, creating some friction and issuing rulings that can furnish the basis for accountability in the future. (Though the Supreme Court, as Mr. Trump has remade it, has largely abandoned even that responsibility.)
We should place less hope in the courts and more faith in politics. The midterm elections are the next major opportunity to check unconstrained executive power democratically. Direct action can also be effective. Consider Minneapolis. When federal authorities initiated aggressive, often violent immigration sweeps in the city, courts offered little shelter. Two federal judges recognized that federal agents were most likely engaging in racial profiling, but declined to halt the operation.
Activists stepped into the space that courts left open. Mutual aid networks coordinated child care and rent relief. Community members tracked ICE operations in real time. Neighbors delivered groceries to families scared to leave their homes. Bystanders interposed themselves between federal agents and those at risk of being detained. Local organizers capitalized on the disruption to shift the political dynamics in Minnesota, weakening the prospects of Republican political campaigns that had been gaining ground in the state.
This is the kind of opposition that Mr. Trump cannot neutralize through legal bravado. Decentralized community resistance cannot be summoned to court, deprived of institutional standing or worn down through legal fees.
The liberal legal tradition has long presented the courtroom as the quintessential arena for principled political resistance. That paradigm has some basis in reality. But in a moment of genuine emergency, it is inadequate. Courts can articulate principles; they cannot supply the democratic energy that gives those principles force. A constitutional order ultimately depends less on what judges are willing to say than on what people are willing to do.
Duncan Hosie (@DuncanHosie) is an academic fellow at the Stanford Constitutional Law Center.
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