The only real firewall against the Trump regime

In the pending Trump regime, federal judges (most of them appointed by Democratic presidents) will form the most important firewall.

Friends,

As a practical matter, where will we find a firewall against the excesses of the Trump regime? The federal courts.

You might say it doesn’t matter because the Supreme Court will rubber-stamp whatever Trump and his cronies want to do.

Not so. The Supreme Court didn’t support all of Trump’s moves in his first administration (remember Trump’s Muslim ban?).

More importantly, fewer than 1 percent of federal cases ever reach the Supreme Court. Given the amount of federal litigation likely to be created by the upcoming Trump administration, the Supreme Court probably won’t be able to deal with even 1 percent.

Most disputes will be decided instead by 1,457 federal judges across 209 courts in the federal court system.

Most of these federal judges were appointed by Democratic presidents.

Of the 680 federal district court judges, 370 were appointed by Democrats compared to 267 by Republicans.

Of the 179 federal courts of appeals judges, 89 were appointed by Republican presidents and 89 by Democratic presidents. Judges appointed by Democratic presidents hold the majority of seats on seven of the 13 regional courts of appeal.

(Biden nominated and the Senate confirmed 235 federal judges — a quarter of all federal judges, and one more than Trump.)

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Examples of federal litigation we can expect:

1. Trump has promised to withhold, by executive action, birthright citizenship from people born in the United States to parents who are undocumented immigrants.

Yet the 14th Amendment guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The restriction, at the time of the amendment’s adoption in 1868, was widely understood to exclude foreign diplomats and native tribes. American Indians later started receiving birthright citizenship under a law passed in 1924.

2. Trump says he’ll refuse to spend money that Congress has authorized.

“When I return to the White House, I will do everything I can to challenge the Impoundment Control Act in court,” Trump has said. “With impoundment, we can simply choke off the money.”

Wrong. Congress restricted impoundments in 1974 in response to Nixon’s efforts to unilaterally alter domestic programs. Trump’s OMB is expected to argue that the 1974 Impoundment Control Act is unconstitutional. But the Constitution assigns Congress the “power of the purse” to control taxation and spending.

3. Trump wants to revive a policy from late in his first term making it easier to fire tens of thousands of civil servants despite Biden’s moves to bolster their protections.

When Trump does this, unions representing federal workers will appeal to the federal courts.

4. Trump will seek to raise tariffs across the board, arguably a move that requires congressional action.

To impose 25 percent tariffs on all imports from Mexico and Canada, as Trump says he wants to do, would require his reliance on an emergency powers law that’s the basis for U.S. financial sanctions, but not the basis for tariffs. Such executive action would almost certainly be challenged by affected businesses.

5. Trump will try to erode Social Security, Medicare, and Medicaid without congressional approval.

Vivek Ramaswamy, the co-chair (with Elon Musk) of Trump’s so-called “Department” of Government Efficiency, asserts that he and Musk could cut Social Security, Medicare, and Medicaid without Congress’ approval. “The executive branch has no obligation to send out a payment if it is wasteful,” he said.

I doubt they’ll try to take on these popular programs head-on. More likely, they’ll try to alter eligibility or, as in the case of Medicaid, impose work requirements and make block-grants to the states.

Where will this issue be decided? Again, in the federal courts.

6. Trump will seek to undo thousands of regulations through an executive order instructing agencies not to enforce them.

Musk and Ramaswamy have already boasted that this is what Trump will do. The Administrative Procedure Act requires, however, an open process if agencies want to adopt or rescind regulations.

Musk and Ramaswamy’s moves (via Trump) will be instantly appealed to the federal courts.

7. DOGE’s secrecy itself will be challenged.

The Federal Advisory Committee Act of 1972 requires outside groups advising the executive branch to hold open meetings and include a range of perspectives. (The federal appeals court in Washington upheld the requirements during the first Trump administration, when a veterans group sued the Department of Veterans Affairs for relying on a trio of advisers based out of Trump’s Mar-a-Lago Club.)

Where will this be decided? The federal courts could order disclosures or even bar agencies from using recommendations from advisers who broke the rules.

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Trump’s incipient administration is already laying plans for this tsunami of federal litigation against the regime. “Those who seek to delay or stall [Trump’s] agenda by filing litigation against the Trump administration will be subverting the will of the tens of millions of Americans who just reelected President Trump,” said Trump spokeswoman Karoline Leavitt.

Rubbish. In light of Republican control over the White House and both chambers of Congress, litigation in the federal courts may be the only way to protect the rights of the tens of millions of Americans who didn’t elect Trump and even of many who did.

Given that most of this litigation will be decided not by the Supreme Court but by federal judges appointed by Democratic presidents, there’s a fair chance that many of Trump’s initiatives will be found to be illegal.