Backstopping the courts!
February 11, 2025
Here is the topline: Defenders of the rule of law are on a judicial winning streak. At the same time, it appears unclear whether Trump and Musk are complying with existing orders compelling them to cease their unlawful behavior. The ‘overwhelming question’ that confronts our democracy is, “What happens if Trump and Musk refuse to obey court orders?”
Legal analysts and political commentators are focusing on that question and often conclude their analysis with something like, “It will be a constitutional crisis.”
That is a highly unsatisfying and incomplete answer. None of the analysts or commentators mention the role of American citizens in pushing back against the ongoing billionaire coup. Yes, we may indeed end up with a constitutional standoff between the executive and the courts, but to pretend that the people have no say in the outcome is an oversight of profound dimensions.
As I wrote yesterday, a system in which the leaders claim to be exempt from the rule of law contains an inherent instability: If the rule of law does not apply to the leaders, it does not apply to the people. That is not a threat but an observation of how other nations have brought dictators to heel. Trump and Musk should, therefore, stop their lawless spree well short of mass action by citizens fed up with a lawless “government.”
The power of mass protests, strikes, stoppages, and boycotts will be particularly potent in America. The US is the largest economy in the world because its markets are stable, its political climate is (relatively) corruption-free, and the rule of law is enforced.
Business thrives on order, predictability, and risk management. If the rule of law is overthrown, business profits will take a nose-dive. The bond market is acting in an unnatural manner, suggesting a deep-seated suspicion that something bad may be happening. The markets are not worried only about Trump's tariffs increasing inflation. They are beginning to price in a risk premium for political instability. (That is my personal opinion based on reading the financial press; I am not an economist.)
Moreover, the full faith and credit of the US depend entirely on American citizens' belief that their tax dollars are spent under the system established in the Constitution—appropriations made by Congress through legislation, signed into law by the president, and implemented by the executive departments and agencies. If Trump and Musk break that system, it raises the obvious question: “What’s in it for the American taxpayer?”
I raise these points not to frighten anyone but rather to give us confidence by following the logic of the current crisis to its inevitable conclusion: The people will prevail.
Even if Trump and Musk lack the emotional intelligence or self-awareness to intuit that fact, the business community that is providing Trump a free pass at the moment is keenly aware of the consequences of breaking the social compact.
I don’t think the crisis will get that far because I believe those around Trump understand the consequences of “crossing the Rubicon” of disregarding court orders. But if it does get that far, I feel pretty good about the prospects of the American people in a political tug of war with Trump and Musk.
With that background, let’s look at how the major developments fit into the narrative.
Courts continue to enjoin illegal and unconstitutional actions by Trump and Musk
As noted above, those defending democracy and the rule of law are on a winning streak against Trump and Musk. But there is worrisome evidence that Trump and Musk are already disregarding court orders. See NYTimes, Judge Says White House Defied His Ruling, as Showdown with Trump Nears (Accessible to all.)
As explained in the Times article,
A federal judge said on Monday that the White House had defied his order to release billions of dollars in federal grants, marking the first time a judge has expressly declared that the Trump administration is disobeying a judicial mandate.
The ruling by Judge John J. McConnell Jr. in Rhode Island federal court ordered administration officials to comply with what the judge called “the plain text” of an ruling he issued on Jan. 29.
That order, he wrote, was “clear and unambiguous, and there are no impediments to the Defendants’ compliance.”
The flicker of hope in the above description of the “freeze” lawsuit is that the DOJ is appealing Judge McConnell's ruling. It could have been otherwise; the White House could have simply announced that it was not going to abide by the ruling. The appeal from Judge McConnell's order may be the vehicle that brings the conflict to the Supreme Court.
But, to be absolutely clear, the White House did not say it would comply with Judge McConnell’s order, so the possibility remains that Trump is defying a binding court order as we speak. Time will tell.
Similar cases are trailing behind, including restraining orders or injunctions against executive orders purporting to take the following actions:
Trump's buyout offer to federal workers: USA Today, Judge blocks Trump buyout offer to federal workers.
Trump's massive cuts to healthcare grants (by limiting overhead to 15%). See Politico, Judge temporarily blocks Trump cuts to health research grants.
And new lawsuits are challenging other Trump executive orders:
Public Citizen filed a lawsuit seeking to block the shutdown of foreign aid: Politico, First lawsuit targets Trump’s foreign aid freeze.
A union has sued Trump to prevent the CFPB shutdown. See Axios, Union sues Trump admin over CFPB shutdown attempt and DOGE access
The takeaway is that these legal challenges are headed to the Supreme Court—if we are lucky. Getting to the Supreme Court means that (a) Trump is losing and (b) he recognizes that the courts have a role in resolving the disputes.
Trump expands his campaign of lawlessness and corruption
Trump is pillaging and burning his way through laws and agencies designed to protect consumers from deceitful, misleading, and dishonest practices by American businesses in the US and businessmen making deals abroad.
As noted above, Trump has effectively shut down the Consumer Financial Protection Bureau—an agency created and funded by Congress. Trump has no authority to unilaterally shut down an agency created by statute.
The unseemly end for the CFPB is bad for consumers. Very. See NBC, What's at stake for consumers as Trump officials target the CFPB (“Congress granted the CFPB the power to supervise banks with more than $10 billion in assets and to regulate lending by nonbank entities, including mortgage, auto, payday and private student loan issuers.”)
As the result of a CFPB rule, consumers saved $6 billion (not a mistake: $6 billion) in check overdraft fees charged by banks. The House Banking Committee has proposed legislation to eliminate that protection.
Trump has also announced suspension of enforcement of a federal anti-bribery statute that prohibits the use of bribes in securing foreign contracts. See The Independent, Trump orders Justice Department to stop enforcing foreign anti-bribery law.
In a truly stunning talking point on a White House “fact sheet” seen by The Independent, the Trump administration seemed to be giving the green light to bribes as a means of doing business overseas.
Per The Independent:
The fact sheet states the White House view that American corporations are disadvantaged by prohibitions on bribing corrupt foreign officials because such activity is common in international business transactions.
(Expletive deleted!) The American economy thrives partly because its markets are viewed as orderly and (relatively) corruption-free. If doing business in America includes bribing suppliers overseas, guess who will most assuredly lose: American consumers.
Bribing foreign producers will deter market-based behavior that rewards honest competition. Instead, the company most willing to engage in criminal bribery will win the contract. Unbelievable!
Speaking of encouraging bribery, Trump pardoned former Illinois governor Rod Blagojevich, who was convicted of soliciting bribes to fill Barack Obama’s seat in the Senate when Obama was elected president. See CBS Chicago, President Trump officially pardons former Illinois Gov. Rod Blagojevich. (“I didn't know him, other than I believe he was on 'The Apprentice' for a little while," said President Trump).
Even worse, Attorney General Pam Bondi ordered the US Attorney for the Southern District of New York to dismiss the federal indictment against New York City Mayor Eric Adams. See AP News, Top Justice Department official orders prosecutors to drop charges against New York Mayor Eric Adams. (“[I]n a remarkable departure from long-standing norms, [the DOJ argued] that the case was interfering with the mayor’s ability to aid the president’s crackdown on illegal immigration.”)
But here is a ray of hope amidst the sudden collapse of the legal profession in the Trump administration: The American Bar Association released a statement calling on lawyers to uphold the rule of law! Read the entire statement here: The ABA supports the rule of law.
The statement says, in part,
Moreover, refusing to spend money appropriated by Congress under the euphemism of a pause is a violation of the rule of law and suggests that the executive branch can overrule the other two co-equal branches of government. This is contrary to the constitutional framework and not the way our democracy works.
The money appropriated by Congress must be spent in accordance with what Congress has said. It cannot be changed or paused because a newly elected administration desires it. Our elected representatives know this. The lawyers of this country know this. It must stop. [¶¶]
We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.
Well done and well said! We need other organizations and leaders to follow the example of the ABA!
Opportunities for Reader Engagement
Join me at an Airlift event on Tuesday at 5:00 pm PST / 8:00 pm EST. Here is the write-up from Airlift:
Airlift is proud to announce that Robert Hubbell will headline Live From the Frontlines: Winning the Ground Game, Tuesday, February 15, 5:00 PM PT / 8:00 PM ET. In addition to an overview of the 2024 landscape, our focus will be on Nevada, a critical state in 2024 with six electoral college votes, a must-win Senate seat, and multiple down-ballot races and ballot measures.
We will also hear from leaders of One APIA Nevada, which organizes one of the fastest-growing yet overlooked constituencies–Asian Americans, Native Hawaiin, and Pacific Islanders. With its innovative, multi-lingual, and multi-generational engagement, One APIA Nevada effectively mobilizes this powerful emerging voting bloc to help us win the ground game in Nevada. Register here for what promises to be a great evening.
This is a fundraiser for One APIA Nevada, but you do not need to donate to register.
Concluding Thoughts
I continue to be mystified by the insistence of the media in using euphemisms to describe our current situation. On Monday, Rachel Maddow described Trump ignoring the authority of the courts as “autocratic breakthrough.” Huh? Other commentators are calling it an “autogolpe.” Surely, they jest! Elizabeth Warren (on Rachel’s show) described the situation as an “existential crisis” for democracy. While true, Warren’s statement belongs in a law review article, not a manifesto for action. (To be clear, I have great admiration for Elizabeth Warren’s leadership during this time of crisis.)
If we want to communicate with people about the urgency of the crisis, we must use words that they understand, words that convey the truth of matter in simple, direct terms.
I believe we are witnessing a coup. Some readers have objected to that term, saying it is not a coup because “The military is not involved,” or “Trump won the popular vote.” Those comments miss the point: The coup is against the Constitution and the rule of law, not against Joe Biden or the Democratic Party.
After listening to Rachel describe the coup as “an autocratic breakthrough,” I asked my wife if I had turned into the crazy conspiracy theorist yelling at kids to “Get off my lawn.” Her reply, “Not yet,” was cold comfort. (That was a joke! Lighten up!)
No, neither my wife nor I believe I am crazy for calling the unbroken series of illegal acts since Inauguration Day a coup. Instead, we believe that politicians and (most) political observers are suffering from a lack of imagination about the situation that is staring us in the face. There is a reasonable basis to believe that Trump is defying court orders as you read these words. The relevant questions are, “What will the courts do about it,” and “What will we do about it.”
Here's the most important part: We should not wait for the courts to reach their moment of maximum crisis with Trump. Why? Because the question of whether Trump will blink in a showdown with the courts will be informed, in part, by his sense of what is happening in the resistance movement.
If Trump thinks, “Oh, a few scattered protests are nothing to worry about,” that is bad. If he thinks, “If this keeps up, the economy will implode, I will lose money, and my rich friends will be mad at me,” that is good. Let’s give the courts that moral authority for the coming showdown with Trump.
So, the time to act is now! We are allies of the judiciary. We give judges legitimacy and power. Let’s backstop the courts!
Daily Dose of Perspective.
I am still feeling like Chipped Beef on Toast due to a cold. (Those with a military background know the colorful expression for the culinary delight of Chipped Beef on Toast, but that nickname is not suitable for a family newsletter.)
All by way of saying that I again failed to set up my telescope to capture new images. My archive image of Epsilon Orionis below shows a blue super giant star that is part of Orion’s Belt. The image is miscaptioned; it should just refer to “Epsilon Orionis,” the star. The nebulosity surrounding the star is secondary to the image.
The nebulosity to the upper right of the star is a small portion of a much larger dust cloud near the star. My image captured only a small bit of the cloud because of the short exposure necessary to capture the bright Epsilon Orionis.
Yes, a coup yesterday didn't stop being a coup today. Thank you for perservering with this, Robert. You are more than fine. That said, Maddow's phrase is not incorrect, particularly in the sense that Anne Applebaum and others use autocracy (Maddow has a PhD in poli sci). More to Robert's point, Tim Snyder also correctly uses autocracy, yet has said out loud to call this coup a coup -- it's both public and conceptual clarity that must prevail together for us to fight back effectively. Maddow's phrase is infelicitous for this moment that requires quick and sharp understanding, and for an invaluable star of the media ecosystem we now rely upon.
There's a growing divergence between the formidable backstop of affirmative court rulings, and authoritarian / P2025 fabricated defenses. We will continue to see a pattern of helpful Monday court activity, after suffering through more weekends of executive malfeasance. Rather than reiterate all of the minutiae of growing caseloads, a few important patterns:
--We actually benefit from being able to see court proceedings and coverage flow through social media, and occasional independent media, in real time. And one thing that strikes me is how terribly constructed DOJ / GOP defenses are (it's called lying), against the strong cases brought by pro-democratic litigants and state AGs. In other words, yes, we are inundated by madness. But in an age of radically accelerated social media, we are also privy to accurate updates that shine a light on the impressive strength of our legal / constitutional narrative. That narrative of rule of law and constitutional order isn't being broken in the courtroom -- it is being strengthened now. And most importantly, judges are *increasingly affirming suits brought against the new regime, which reinforces the immune system of the constitutional order.*
--Another important pattern of divergence, also noted today by Jay Kuo: we cannot help that Trump's reputation doesn't drop as fast with his base as it does with the rest of the world. And especially dropping with CEOs, as reported by the WSJ. But he's still Teflon Don, for now. However, Elon Musk's reputation is taking a major nosedive. Musk is utterly toxic and oblivious. And it seems Musk's rep is not going to recuperate with anybody, save for his most extremist fanboys. That's a space to watch closely, because the first signs of rift and fallout may be coming sooner rather than later. And mass public pushback will help this. It is already helping.
I loved the Super Bowl. More than half the attendees aggressively booed Trump. In the South, in front of the most macho group of citizens, many people were visibly angry and yelled at and booed him. The halftime show was a clear message to Trump and was delivered by Black Lives Matter via Serena Williams, Samuel Jackson and Kendrick Lamar, and all the Super Bowl Commercials were anti Trump and supported DEI. I think his walls are caving in and we have to keep up the pressure. It is becoming very obvious that he is full of it...his walls are crumbling every time he breaks the law...He puts the Kebbler elf (Mike Johnson) on a plane to the Super Bowl to cozy up to him but I am sure there are many in Congress that are not loving this rule breaking. Including GOP members of Congress. It is like watching a train wreck and we are on that train. I have to believe that Trump cannot take down my country and I will fight every day to keep that from happening. Thank God I live in Santa Monica, CA...and thank God I have all of you and dear Robert Hubbell to keep me from going off the deep end.