THE LEGAL RESISTANCE.

Author:Blackman, Josh
Position:Symposium on Executive Power
 
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  1. INTRODUCTION

    It is my pleasure to speak at the Faulkner Law Review's symposium on the role of the Executive in the Anglo-American Legal Tradition. (1) No doubt, this topic was selected well in advance of the 2016 presidential election. Had Hillary Clinton been chosen, as most people assumed she would, I would likely be talking about the principles of administrative law, or deference to executive-branch agencies. But this did not happen. Instead, over the past eight months--and yes, it has been only eight months--President Donald J. Trump has rocked our legal order, setting up frequent and bitter clashes with Congress, the states, the judiciary, and the people.

    At the outset, I should note that I oppose much of President Trump's agenda as a matter of policy. I disagree with many of his views on immigration, economics, national security, civil rights, shall we say "decorum," and other areas. Before the election, I joined a prominent letter of law professors who opposed Trump's election (2)--a decision that has not inured to my personal benefit. But with my cards on the table, I remain in the somewhat lonely minority of law professors who find that many--not all--of Trump's actions are supported by his constitutional and statutory authority. These are matters I have written about at great length elsewhere.

    My remarks today will focus on the so-called "legal resistance" to the presidency of Donald J. Trump in the context of the travel ban.

  2. THE BIRTH OF THE LEGAL RESISTANCE

    During the summer and fall of 2016, by all accounts, it seemed that a President Hillary Clinton and a Democraticcontrolled Senate would confirm a Justice who was more liberal than Justice Scalia. Had Justice Scalia been replaced by Judge Merrick Garland, or perhaps someone even further to the left, on the most pressing issues, the conservative wing of the Court would have been unable to muster four votes for certiorari, five votes for a stay, or five votes for a majority opinion. The future looked bleak. However, as election night wound to a close, and Hillary Clinton eventually conceded, those fears and hopes quickly reversed. For conservatives, a once unthinkable victory salvaged their legal movement--and it may have done more. For progressives, defeat was snatched from the jaws of victory. Soon, a broad movement to "resist" the new President formed. A subspecies of this movement would focus on the courts.

    On January 21, 2017, the day after the inauguration, progressive lawyers convened at the Rise Above conference, hosted at the Mayflower Hotel in Washington, D.C. The mission: how to thwart the Trump administration in the courts. (3) Jamie Raskin, a former constitutional law professor who was elected to Congress, called on the group to coordinate a "new movement" and to "plan legal resistance to the incoming Trump administration and Republican-controlled Congress." (4) I don't know that Raskin invented the term "legal resistance," but this movement would not have to wait long to make its mark.

    President Trump's January 27 Executive Order on immigration sent Shockwaves throughout our legal order. (5) For 90 days, certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen--deemed "detrimental" to American interests--would be denied entry. (6) For 120 days, the Refugee Admissions Program would be suspended. Syrian refugees in particular would be denied entry indefinitely.

    On Monday, January 30, Washington Attorney General Bob Ferguson sought a temporary restraining order to halt the policy nationwide. (7) Ferguson and Noah Purcell, the state Solicitor General had planned this challenge well before the Executive Order was even signed. (8) According to a report in the Wall Street Journal, Purcell's office "raced to get a complaint filed by that Monday." (9) Ferguson recounted, "We were having internal conversations about a potential action by the president along those lines... [i]t wasn't like we were starting from ground zero." (10) After an hour of oral argument on February 3, 2017, U.S. District Judge James L. Robart ruled from the bench that the federal government must immediately cease enforcing the Executive Order. (11)

    With that victory, Ferguson was feted as the "vanguard of resistance against President Donald Trump's travel ban." (12) The Nation noted that President Trump's "refugee ban sparked a new kind of legal resistance group into being." (13) Over the following year, Ferguson and other Democratic Attorneys General would bring suits against the Trump Administration's travel bans, restrictions on sanctuary cities, cancellation of President Obama's deferred action policies, and many other initiatives. The New York Times noted that New York Attorney General Eric Schneiderman's office "has been transformed into a bulwark of resistance amid an unusually expansive level of confrontation with the federal government." (14) On his blog, Schneiderman celebrated "[a] [y]ear of Legal Resistance," in which he filed over 100 challenges "[t]o [p]rotect New Yorkers from Washington's Harmful Agenda." (15)

    The Attorneys General were joined by liberal advocacy groups, who, the Times observed, were "[d]etermined to make legal resistance one of the defining attributes of the Trump era." (16) The article noted that shortly after the inauguration, these progressive organizations "put[] aside institutional rivalries and organiz[ed] to work together on litigation." (17) National Public Radio reported that David Cole, the legal director of the American Civil Liberties Union, is "[t]he man at the heart of the legal resistance to the Trump agenda." (18) CNN observed that the "[l]egal resistance to Trump's actions is also growing, and already has octopus-like tentacles with different groups seeking to unravel or block the most controversial aspects of his executive actions." (19) Throughout the first year of the Trump Administration, the legal resistance secured many victories.

  3. THE LEGAL RESISTANCE AND THE COURTS

    There is nothing irrational about state Attorneys General and advocacy groups on one side of the aisle challenging the policies of a President on the other side of the aisle. During President Obama's eight years in office, Republican Attorneys General launched a fusillade of legal challenges to his health care, environmental, immigration, and other policies. Texas Attorney General Greg Abbott, who sued the Obama Administration more than two dozen times, would often boast, "I go into the office, I sue the federal government and I go home." (20) Nor is there anything novel about courts accepting these challenges, and ruling against the incumbent administration. Abbott and his colleagues amassed numerous legal victories, securing nationwide injunctions against several of President Obama's policies. (21)

    The Legal Resistance against President Trump, however, has differed in three important respects. First, the nascent movement was birthed in the cradle that Trump was not, and could not, be a legitimate President. This guiding principle was used to justify a departure from the usual modalities of argumentation. Second, because Trump was sui generis, courts were openly called upon to modify their "screens of deference" against the incumbent administration; that is, to refuse to "normalize" President Trump. Third, and most significantly, the lower courts have largely abandoned the presumption of regularity that had traditionally been afforded to the President. To date, at least, the Supreme Court has consistently brought the inferior courts back into line.

    1. The...

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