How Do We Resist?

Political Notes

by Jon Fuhrman

Friday, August 8. Lots of political news lately – Kamala drops out of the California Gubernatorial race, Roy Cooper drops into the North Carolina Senate race, President Trump’s approval rating tanks to the high 30’s, Democrat’s lead in the generic horserace polls increases to match early 2021 numbers (despite all we hear about the Democratic “brand” being in the toilet). Yet all this begs the essential question: how do we resist now? What can we do to force change now?

In one sense, the unsatisfying answer is not much. The Trump forces control the executive and the Congress. Simply put, they have the votes; we don’t. Even after all the dramatic threats about deficits and trampling legislative prerogatives, even after saying the reconciliation bill was terrible and needed to be changed, the GOP members of Congress all caved, marching forward in lock-step.

Pretty much the only recourse we have now are the Courts. In fact, we’ve won temporary holds in multiple cases at the District Court level. That’s hardly surprising, given the insouciant boldness with which the Administration simply ignores traditional norms, let alone actual federal law and Constitutional strictures.

The Supreme Court has been less willing, repeatedly ruling that these holds must give way while the merits of the cases percolate through the system. But in at least two cases, we are nearing a showdown on the actual merits, with the Administration on shaky grounds.

First, the tariffs. Oh how the President loves his tariffs. It’s like a monopoly game, with him ruling the roost, using sudden tariff changes to bend the entire world to do his bidding. The only problem is that the Constitution, in Article 1, explicitly assigns to Congress the power to “lay and collect Taxes, Duties, Imposts and Excises”, and to “regulate Commerce with foreign Nations.” Congress did, by law, grant to the President the power to levy tariffs in emergencies, and Trump has tried to make this loophole big enough to accommodate his new Air Force 1 747.

The US Court of International Trade has jurisdiction over tariff and trade issues, so when these tariffs were challenged, the case fell into their laps. Their cases are normally highly technical and of modest import, heard by one of the nine judges on the Court. But not this one – they had a panel of three judges hearing the case, including one appointed by President Trump during his first term. Those judges, unanimously, said no way. This was clearly an abuse of the discretion granted the President; one cannot describe conditions which have persisted for years, if not decades, as an emergency allowing extraordinary Presidential latitude.

So this was a clear ruling, on the merits (as opposed to procedural issues), rebuking the Trump Administration. The Administration, of course, appealed, and they were granted a stay pending the appeal, but the appeal was heard on July 31 in the U.S. Court of Appeals for the Federal Circuit. Rather than using the normal 3-judge panel, the Court sat en banc with 11 of the 19 Judges. (This means any appeal would go directly to the Supreme Court.)

These Judges seemed no more inclined to buy the Government’s specious justifications. They may render a formal opinion on the merits of the case before the end of this month. A stay will likely be granted pending appeal to the Supreme Court, but we might well have a ruling, on the merits, by the Supremes early next year. The logic of the Government’s case seems so patently weak and flawed that it would be quite a stretch for anyone (other than Justices Thomas and Alito) to find it compelling (but we’ve been unpleasantly surprised before, so who knows).

Should the Government lose, the tariffs would be reversed, and perhaps even the collected funds would have to rebated back to the importers. It would be quite a mess, and even more so, it would rip to threads President Trump’s aura of invincibility and royal “l’etat, c’est moi” arrogance. The political impacts could well be substantial. I don’t think the MAGA crowd signed up for an Emperor with no clothes.

In the second case that has moved along, a Federal District Judge issued a temporary restraining order, applicable only in our area, blocking Immigration and Customs Enforcement from arresting suspected undocumented residents based just on their being at a Home Depot looking for work, or pushing a food cart in a Latino neighborhood, or simply driving while looking Hispanic. The Court rightly found that the 4th Amendment does require some particularized grounds for suspicion, and that simply speaking Spanish or looking Hispanic does not meet the long and well-established criteria for search and seizure.

Even though this order applies only in Central California (and thus avoids the whole controversy about District Court Judges making law for the entire country), the Government sought a stay of this order. The 9th Circuit panel swatted them down in short order, noting the straightforward argument that the Government needs a specific reason, or articulable suspicion, before they can arrest someone.

This case is still in the very early stages. The District Court Judge will have a hearing on Sept. 18 to consider a permanent restraining order, at which time the merits of the case will be discussed (as if they weren’t inherently obvious to anyone not on the MAGA bus). The Government will argue that immigration enforcement is fundamentally different than regular and traditional law enforcement – that ICE isn’t bound by the traditional 4th Amendment requirements for particularized suspicion or evidence. After the District Court rules, it will be back to the 9th Circuit (very possibly for an en banc hearing), and then on to the Supreme Court.

This case really gets to the heart of the Trump Administration strategy on immigration enforcement – to instill terror and fear in the undocumented community, so many will “self-deport” and others will be swept up in the mass actions without having to worry about minor niceties like the right to counsel or even “accidentally” arresting – and even deporting – people who are actually citizens.

A third case is even further from resolution, but is perhaps the most straightforward – birthright citizenship. Several District Court Judges have already ruled on the merits that the President’s Executive Order eliminating birthright citizenship is plainly in violation of the 14th Amendment. This case too will work its way up the appellate chain, but it’s less directly impactful on the MAGA agenda. If the Administration loses the ICE case, their whole strategy for enforcement is really up in smoke. If they lose the tariff case, it’s a huge international embarrassment that will also resonate domestically. So it may be that the Courts, as maddeningly slow and impotent as they sometimes seem, will in the end rescue us from the insanity of President Trump.

Meanwhile, how do we nourish the troops, keep the enthusiasm up, prepare them for the 2026 mid-terms when we can right the boat? Protests do work, because they create a sense of togetherness and action (if not achievement). Local events with political leaders work. Letters to the editor, posts on social media, donations to local political leaders (who can usefully direct those funds to Democrats who do need the funds) all add to the sense of involvement and action. It’s hard, knowing that whatever we do won’t change things right now, but will be laying the groundwork for greater change in the next year or two or three. Simply telling folks to be patient is not an easy message. But to say or imply anything else is not really being honest, as unhelpful as that may feel.