Elie Mystal, The Nation - Many of Trump’s orders are illegal, and unconstitutional, and brazenly so. Most good-faith lawyers can see that, but “good faith” does not describe the current state of the federal judiciary. Trump and MAGA have captured and corrupted the courts: They have seeded the lower courts with federal judges more loyal to Trump and his white-supremacist movement than they are to the law. They have stacked the Supreme Court with justices hostile to civil rights and equality. This doesn’t mean that cases brought by the ACLU, AFL-CIO, or Democratic state attorneys general are destined to fail. Their cases are righteous (and, legally speaking, right) and must be brought. Some might even succeed.
But the courts will not “save” us. They will not be the backstop protecting us from the Trump-Musk takeover, and any person who tells you otherwise, especially if that person is an elected Democrat in Congress, is selling you an excuse for inaction and complacency. Trump and Musk are barbarians at the gate; calling in the lawyers to tell them they’re trespassing isn’t going to halt their advance. Courts are not known for their harm prevention—they’re best used when trying to hold someone accountable for the harm they already caused.
The most obvious reason for this is that the courts move slowly. They are designed to move slowly. A court has to wait for a bad thing to happen (a “case or controversy”), then gather evidence on the bad thing that happened (a “trial”), then listen to one side argue that the bad thing wasn’t actually that bad (the “adversarial system”), then enter a judgement that can be appealed, and appealed again (to the Circuit Court and the Supreme Court, respectively). If we’re very lucky, in a year or two we’ll get final rulings on whether Trump is allowed to do the bad things he started doing two weeks ago.
The quickest tools the courts have at their disposal is the “temporary restraining order” (aka “TRO”) and the “nationwide injunction.” You’ve likely heard these terms before. These are temporary orders issued by a court that purportedly prevent the implementation of new laws or policies pending a full trial (or hearing) and ruling on the “merits” of a legal challenge. Often, these temporary orders themselves are appealed all the way to the Supreme Court (which potentially delays the timeliness of these emergency actions), with the administration trying to lift the temporary stops so it can implement its policies while the courts sort out whether the policy is legal.
The Trump administration has already been hit with TROs over a number of its illegal and insane executive orders —including its unconstitutional revision of the 14th Amendment to end birthright citizenship, its illegal funding freeze on money already appropriated by Congress, and its immoral and dangerous prisoner transfer of trans-women to male prisons.
In theory, these orders should be effective stopgaps. The problem is that the court has no enforcement mechanism. It has no army, no police force, no power to impose its will. Instead, the executive—in this case the president—is supposed to enforce the court’s orders. But what if Trump doesn’t? There is little reason to believe that Trump will enforce an adverse court ruling against himself. There is no reason to believe he’ll enforce one against Musk. More
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