Winning!
If the Trump administration maintains discipline and message control, it will win most of the 80 (and growing) Democrat-progressive-unhinged lawsuits against it. Seeking to stop the president from managing the executive branch, compel racial discrimination and Biden’s delusions about body dysphoria, or shelter illegal aliens, are constitutional and statutory non-starters. Maine Governor Janet Mills, and other blue state politicians will soon learn that the Supremacy Clause of the Constitution overrides unpopular sanctuary laws.
It has become de rigour for the party and ideology defeated in presidential elections to seek to overturn the will of the people through litigation. Practitioners of this anti-democratic strategy use the Administrative Procedures Act to assert that a regulation is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” The APA, however, does not apply to the president. To stop executive orders, the plaintiffs argue that he lacks authority under the Constitution or federal statutes, though they often also assert that his actions are arbitrary and capricious.
The attacks thus rely on political arguments. The plaintiffs are effectively asking an unelected, federal district court judge to substitute his judgement for that of the president or Cabinet secretaries.
Until last year, that was a winning strategy for attacking conservative efforts to change agency actions. In the Chevron case in 1984, the Supreme Court held that courts should defer to an agency’s interpretation of legal ambiguities. Since most federal employees are to the left, that created the all-powerful progressive Administrative State. Last year, over the Biden administration’s objections, the Court overruled Chevron in Loper Bright Enterprises v. Raimondo, ending the reign of federal apparatchiks.
Article II of the Constitution vests all executive power in the president. Except where his directives contravene the Constitution, he decides how the executive branch will be managed. That does not mean he can ignore contracts, treaties, or all federal statutes. But, it does mean that he has very broad authority over hiring, firing and similar matters.
The president is also the commander in chief, and in most matters of foreign policy his authority is plenary. In United States. v. Curtiss-Wright Export Corporation (1936), the Supreme Court held that the president is “the sole organ of the federal government in the field of international relations.”
Add to this that DEI is unconstitutional and violates more than 100 years of federal civil rights statutes and Supreme Court decisions; and that transgender fanaticism is contrary to fact, violates religious rights established by the First Amendment, and is a creation of the Biden administration’s lawless expansion of federal law (back to Loper Bright).
When plaintiffs file cases attacking an administration, they do so in hospitable districts where they are likely to find supportive judges. Hence, it is no surprise that more than 20 judges have issued temporary restraining orders barring Trump’s orders. This underscores that, as Justice Clarence Thomas recently observed, the time has come to end the right of a federal district court judge to tell the president what to do through a national injunction.
Nonetheless, for the most part, Trump’s executive orders are on solid legal ground, and the agencies are on firm enough ground for follow-up rulemaking.
That is why federal judges have allowed Trump to “decimate” the USAID, refused to block Elon Musk’s appointment as head of DOGE, and even Trump hater Tanya Chutkan declined to block DOGE’s access to federal data. A federal judge in Massachusetts ruled unions don’t have standing to stop Trump’s buy-out offer to federal workers, and another federal judge refused to reinstate fired inspectors general, though still another federal judge temporarily reinstated Hampton Dellinger to lead the Office of Special Counsel and the Supreme Court declined to step in on technical grounds. Another federal judge refused to restore the Associated Press’ access to certain White House events.
Federal courts have barred portions of Trump’s transgender reset. Federal Judge Adam Abelson found that Trump’s orders canceling federal contracts that include DEI violate free speech of corporations and universities. His overbroad order is inconsistent with the Biden administration’s actions and the infirmities of DEI. It will be largely reversed on appeal, though its prohibitions on limiting mere speech likely will survive.
A Massachusetts federal judge barred a poorly vetted spending pause, and Judge Amir H. Ali temporarily restored some USAID spending, delaying implementation of the cuts.
By contrast, though drafters of the 14th Amendment likely never intended to grant birthright citizenship to the children of illegal aliens, ending that practice may requires Congressional action and, even if for only that reason, Trump’s executive order may lose in a Roberts Supreme Court concerned about its legacy.
The president’s funding cuts don’t follow the requirements of the Impoundment Control Act of 1974 (ICA). Though the administration asserts it is merely “pausing” payments, and that the ICA is unconstitutional, that may be an uphill battle in light of the Supreme Court’s decision in Train v. City of New York (1974), which reigned in President Richard Nixon. With a Republican majority in both houses, Trump can achieve his goals by complying with the statute.
Trump is moving with uncommon speed. Despite some hiccups, he is doing far better in court than the plaintiffs, or the media, want to admit. With some adjustments in messaging about DOGE’s authority, improved tactics on spending cuts, and a few appeals, he will vanquish the big spending, racist, open borders resistance.
Kenin M. Spivak is founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and a frequent speaker and contributor to media, including The American Mind, National Review, the National Association of Scholars, television, radio, and podcasts.
This article was originally published by RealClearPolicy and made available via RealClearWire.
