In August, Trump ordered that the door-to-door census count stop a month earlier than scheduled, interference intended to create an under-count that would benefit the GOP in future elections. On Saturday, a federal judge said, “Wait a second, chump” and told the Census to keep going.
Earlier in the summer, Betsy Devos ordered public schools to kick some of their pandemic money to private schools, money that Congress had not allocated for private schools. It was Devos’s way of juicing her family’s business interests. On Friday, a federal judge said, “Stop right there, lady” and smashed her order to little bitty pieces. Last week, a Maryland court blocked Trump’s abortion referral restrictions.
These three slap downs are only the most recent legal reversals of Trump policy. In July, judges reversed a Trump executive order stripping migratory bird protections, as well as a Trump order denying trans people ACA protections. July also saw judges stop a Trump order which screwed Native Americans out of mineral rights and halt an order regarding zero tolerance asylum policy. And, while the Trump Administration has had some legal victories, especially with McConnell’s hand-picked judges, Trump’s success in achieving policy goals through executive fiat is unimpressive.
Where Trump undoubtedly succeeds with these orders is in the propaganda game. He talks up an “order” and if it gets run in the right-wing press and condemnation in the mainstream media, he has staff hastily draft something. He announces the order and if that goes over (cheering from the right, fear and outrage from the left), his people stage a signing ceremony. A bunch of hired stiffs and attention-hungry dupes stand behind Trump as he flourishes his Sharpie, scribbling his jagged up-and-down on a piece of paper. At no time is that executive order more impactful than right then when Trump play acts the presidency.
Once the order is logged, the ACLU, NAACP, Earth Justice, National Resources Defense Council, National Immigration Law Center, Human Rights Campaign, Lambda Legal, or some other public interest law group sues to stop Trump’s treachery. Often, they are joined by one or many state attorneys general. Sometimes the mainstream press reports on the legal fight against Trump’s actions, but most of the time the challenges become a footnote, reported only on news-sites focusing on legal matters, single issues, or “identity politics.”
When a ruling against Trump gets press, it is usually restricted to a few political news venues – Washington Post, Politico, Lawfare, etc. – legal journals, and local press in jurisdictions impacted by Trump’s orders. When an anti-Trump ruling hits the network television –even PBS NewsHour and CNN – the report is limited to a brief “Today, a federal judge struck down blah blah blah.” There is usually no further explanation and certainly not a deep dive.
Trump’s orders and actions are easy targets for challenge thanks to four things: First, contrary to the hype, it is difficult to rule by executive order. As with Trump, every President Obama’s order were challenged in lower courts, not by liberal or civil rights group, but by conservative legal groups. Often, the cases made their way to the Supreme Court. President Obama’s SCOTUS success rate was 50.5%, a historic low but also part of a trend that started with the Reagan administration. Granted, not all of these SCOTUS fights were over executive actions, however the legal success rate of Obama’s actions illustrates the difficulty of a president working around Congress. (By the way, the conservative claim that Obama was exec order happy is untrue.)
The second reason for Trump’s executive order failures is due to the man’s impulsiveness and short attention span. As noted above, Trump’s orders often originate from the hasty demand that a brain fart be crafted into an executive order NOW. His people wait to see if Trump’s interest exceeds his attention span before they rush to cobble something together. Because their main goal is to have something for Trump to sign before the boss starts screaming, little care is made in crafting sound orders. More important for Trump’s staff is getting words on the page.
In contrast, the Obama administration was pretty deliberative about everything they did, leaving very little to chance. This was especially the case with executive orders. Obama knows Constitutional law and employed top lawyers who had experience crafting policy. He tapped experts who spent as much time on an order as need so that the order had a chance of getting through court challenges unscathed. Obama and his team were patient in their persnickety. And, even though they never cut corners in a rush to “get things done,” often, Obama’s orders were stopped in court.
Trump’s idea of a legal genius is Rudy Giuliani, a delusion which illustrates his third problem: Trump does not have the “the best people” drafting and vetting his orders. This is especially apparent in his immigration orders. Trump has Stephen Miller and his immigration chop-shop continuously trying to craft cruel and unusual punishment into law. Though Miller’s horrorshow spends a lot of time making Brown people’s lives miserable, it is not “quality time,” simply because Miller doesn’t have quality people. The attorneys that he employs are at the extreme of right-wing immigration policy, not Constitutional superstars. What the kooks grind out often relies on fringe legal theory with large gaps in logic, easy targets for legal challenges.
Lastly, Trump’s fear of losing keeps him from following through when an order is successfully challenged. While other presidents use a court loss as a tip sheet to strengthen an order, Trump’s legal eagles rarely go back for a second shot. One exception is immigration – probably because it’s Miller’s baby. Trump’s first order as president was the Muslim ban. It was squashed. Trump had it reworked and signed a revised order. When the second shot failed, the order was revised again. The much watered-down third try made it through the courts. Trump’s persistence on the Muslin ban is the exception to the rule. Usually, when Trump fails, he yells “Rigged” and retreats.
The reason all of the above is important is because it shows a pattern with Trump: The president makes a lot of noise about an issue, and then floats a very loud trial balloon. If Trump gets the desired response, he announces that he will announce an order “in a few days.” If the announcement of the announcement gets the desired response, his staff quickly drafts an order. If Trump is still interested (or needs a distraction), a signing ceremony is staged. Trump is handed a fancy binder containing the order. Trump scribbles his name on the order. Trump’s press people and his team at Fox try to freeze that moment in time.
If, after the ceremony, Trump does speak on an executive order, he brags that he signed one and lies about the “great” impact it is having (even when the order been struck down or was issued by another president). Trump has nothing to say about a court challenge, how the order fared in the courts, or even how it is enacted if it survives. Questions to Trump or one of his press flacks about an order are deflected, often with deceit. If the press follows up on an order’s fate, the report is muted, getting a fraction of the attention paid to Trump’s test balloons and the order’s signing ceremony.
The order could smashed into a zillion pieces, with fabulous flair, supreme gusto and poetic venom, still, what we remember is what is reported loudest: Trump behind a podium proposing a horrific idea while babbling nonsense, followed by the signing ceremony, a self-congratulatory stage piece where dull-witted sag-face hefts an executive order into the air while the toadies and sycophants who stand behind him applaud. What sticks with us is the threat and the fear of the order’s issuance, not resolution and relief in its defeat.
Knowing only the first half the story, the public pens a fictional ending: Trump is the strongman ruining American with his every move. Trump is a strategic genius supervillain on par with Hitler, Rasputin, and Genghis Khan. He will eat us up like bucket of fried chicken, and, like a greasy drumstick there is nothing we can do to stop him other than worry. Be fearful of the Trump coup! Cower while he steals the election! Freeze frightened: Trump is the president that will never leave! Dammit, Jim, Trump is with us forever!
Now, let’s turn a few pages and get to the real-life end of the story, the part where people step up and challenge Trump, either in the courts or on the street. Let’s start with the chapter following Trump bragging about signing a piece of paper. Rather than react in fear, people like you and me get angry. Some of the pissed-off work for public interest law firms. They rush to the courts to challenge Trump’s order. Fair-minded politicians back lawsuits and try to find ways to legislate Trump’s order away.
Good journalists dig into the order and expose its flaws. Everyday people raise a ruckus, jamming up government phone lines and protesting in the streets.
Next chapter: Trump’s order is stalled in court by a temporary injunction. The stay is an important first victory which gives opposition lawyers time to work and the people space to organize. Journalists covering the story can dig deeper, interview people who will be affected by the order, and write stories humanizing the issue. State legislatures pass laws that counter the order if it survives court challenge. All these things help turn the public against Trump’s order.
New chapter fast forwards six months: The order is still in the courts. Sensing a defeat, Trump loses interest. Trump’s legal team half-asses it, as with other “loser” cases. When those seeking to kill the order introduce motions, Trump’s team fails to counter. When Trump’s people do argue their case, their reasoning is limited to “Because” and “Says you.” The nut of Trump’s strategy seems to be running out the clock.
Turn the page: The courts reject Trump’s order. The ruling is a beat down molded out of deft reasoning and snide insults. The judges scold the administration’s lawyers for their sloppiness and absurd defenses. Trump’s order doesn’t just lie dead in ash. The ashes have been set on fire and thrown in his face. Trump loses. The people win.
The root of the people’s victory is this: Those opposed to Trump believed in their own power to change things and fought back. By challenging Trump, they refused to validate the fantasy created by Trump, his fans, and some of his enemies. They say “No!” to the lie that Trump is an undefeated, stable-genius, super-strong manly-man. They see Trump as a tomato can with a glass jaw. Trump threw his best punch and the people not only blocked it, they hit back and again and again, until Donald Trump fell flat on his back, out before he hit the canvas.
The Trump knock-out is projection, but projection based on reality, not on what Trump wants us to believe. Past battles put lie to the evidence-free absurdism that the man is an expert street fighter who battles through the worst of the worst, and wins it all every time, all the time. Fact is, we beat Trump, a lot, but instead of acknowledging our power, we are distracted by loud threats that Trump will not back up. Trump is a lazy coward who fears losing, especially if it involves public humiliation. Punch at him and he flinches; that is if he doesn’t run away.
Edmund Burke wrote “The only thing necessary for the triumph of evil is for good men to do nothing.” The easiest way to convince good people to do nothing is to scare them into inaction by framing mediocrity as might. When good people challenge the facade, evil doers puff bigger and louder, saying whatever they can to keep good people from getting close enough to see that the monster is nothing more than a conman made of chicken wire, duct tape, hair spray, and orange paint. It is horrible when good people do nothing to challenge evil. It is tragic when that inaction is induced by fear built on lies.
Over the next two months, good people must do “something.” To do anything, though, good people must believe that they can do something, not just about the November election, but over the next five months that Trump is in office, even when things get scary and the fight turns into a siege. And, if Biden is elected, it is important that we continue to do “something,” that we feel and act on our power.
History shows again and again that when the people feel their strength and act on it, things change. People power has extended freedom in our country, in our life time, as well as toppled dictatorships and corrupt governments around the world. Over the next few months, I will be writing more about how everyday people challenged the powers-that-be and changed things for the better. Stay tuned…