The growing judicial resistance to an unlawful regime

May 30, 2025

[Note: I will hold my regular Substack livestream on Saturday, May 31 at 9:00 am Pacific / 12 Noon Eastern. Open to all on the Substack App.]

Dozens of judicial decisions have enjoined or invalidated most of Trump's executive orders since Inauguration Day. I outlined a few of the significant victories in yesterday’s newsletter, Today’s Edition, Why I am optimistic about the long term.

Collectively, those decisions constitute a significant part of the resistance to Trump's illegal and unconstitutional regime. We are indeed fortunate that the judiciary has faithfully executed its role as a check on a coordinate branch of government that has attempted to abandon the Constitution.

Rulings by federal judges and related appeals have been so numerous that keeping track has been a challenge. Adam Bonica has performed an analysis of the cases filed against the Trump administration on his Substack, Data and Democracy.

In an essay entitled, The 96% Rebellion: District Courts Mount Historic Resistance, But the Supreme Court Looms, Bonica reveals the following:

1. Judges are ruling against Trump at an accelerating pace, with the monthly percentage of losses by Trump from February to May trending upward: 53%, 74%, 76%, and 96%.

2. Judges appointed by presidents of both parties are ruling against Trump: 72% of Republican appointed judges ruled against Trump in cases before them, while 80% of Democratic appointed judges ruled against Trump in cases before them.

Bonica’s data is worth a moment of reflection. In May, 96% of the cases filed against the Trump administration were decided adversely to the president. There can be no clearer or stronger signal that Trump is operating in violation of the Constitution and the laws of the United States.

It has been a while since I have said so, so I will repeat it here: Trump is attempting a slow-rolling coup. Part of that coup is his de facto refusal to abide by the dozens of court orders compelling him to cease his illegal conduct. In some instances, he has obeyed those orders; in other instances, he claims to be honoring those orders while doing the opposite; and in other cases, he is simply ignoring the orders entirely.

Remember that time—49 days ago—when the US Supreme Court ordered Trump to facilitate the return of the wrongly deported Kilmar Abrego Garcia? Trump still has not complied with the Supreme Court’s order, but has instead invoked the “state secrets” doctrine to conceal its reasons for not returning a man the administration admits was wrongly deported.

The ability of Trump to temporize and evade is one of his few native skills. But the odds are against him. The sheer number of adverse decisions (more than one hundred) effectively ensures that Trump or his cabinet officers will be held in criminal contempt.

The question of whether Trump can pardon himself or his cabinet officers if convicted of criminal contempt is a complex issue beyond the scope of this newsletter. But see, for example, Congressional Research Service Legal Sidebar, Can the President Pardon Contempt of Court? Probably Yes.

But even if criminal contempt is pardonable, neither Trump nor his cabinet officers want to be in the position of needing to be pardoned. And, as a public service announcement reminder, the true remedy against a cabinet official or the president for violating a court order is impeachment, conviction, and removal from office.

Although enforcement remains problematic, the good news is that federal courts are acting as a supplemental line of defense against Trump's lawless regime. It could have turned out otherwise, so we should acknowledge that the courts have remained steadfast in their fealty to the Constitution.

---

Further developments regarding the Court of International Trade decision that the Trump tariffs are illegal.

Yesterday, the US Court of International Trade ruled that Trump's tariffs pursuant to the IEEPA were unconstitutional. The court also ruled that the government must return tariffs to the parties from whom they were collected.

On Thursday, the US Court of Appeals for the Federal Circuit stayed the decision of the Court of International Trade (CIT) pending appeal. The Court of Appeals indicated that it was prepared to decide the appeal on an expedited basis.

While some might be tempted to view the temporary stay by the Court of Appeals as a setback, I don’t believe it should be viewed as such. Issuing a stay of the decision by the CIT was a pragmatic decision that will prevent importers from enduring a “on-again-off-again” situation with tariffs. By issuing the stay, the Court of Appeals maintained the status quo (tariffs in effect) until and unless the decision of CIT is affirmed on appeal.

Because the CIT ordered the return of illegally collected tariffs as part of the judgment issued against the Trump administration, the remedy of restitution will remain if the Court of Appeals upholds the decision by the CIT.

In short, don’t read anything negative into the decision by the Court of Appeals to stay the Court of International Trade’s ruling.

Separately, US District Judge Rudolph Contreras issued a preliminary injunction against the tariffs issued by Trump under the IEEPA. See Learning Resources v. Trump | Memorandum Opinion | 5/30/25.

Judge Contreras delayed the effective date of his order for fourteen days to allow the government to appeal.

Many commentators are dismissing the ruling in Learning Resources as “narrow” because it applies only to the parties in that case, whereas the decision by the Court of International Trade invalidated the tariffs as to everyone.

But the holding by Judge Contreras is fascinating and goes to the heart of Trump's unlawful conduct in issuing tariffs under the IEEPA. Together with the holding by the CIT, the decision by Judge Contreras puts the Trump administration in a legal vice.

Here’s why: The Trump administration argued that Judge Contraras should have transferred the case to the Court of International Trade (CIT) because the CIT has exclusive jurisdiction over cases involving tariffs.

Judge Contreras ruled that the CIT does not have jurisdiction over the case because the IEEPA statute used by Trump does not authorize the imposition of tariffs!

If the ruling by Judge Contreras makes its way to the Supreme Court, the justices on the Supreme Court will be forced to decide if the IEEPA authorizes the president to impose tariffs. If the Supreme Court decides that the statute does not allow Trump to impose tariffs, then the CIT case will be dismissed for lack of subject matter jurisdiction and the case before Judge Contreras will be upheld on the merits.

Here's my point: Between the two decisions issued over the last 48 hours, the odds are extremely high that the Supreme Court must rule that the tariffs are illegal. As with the 100+ other decisions adverse to Trump, the more cases he must fight, the more likely he is to trip over his own feet.

We are fortunate that the federal judiciary has stepped up to defend the rule of law. The judiciary has become an integral part of the resistance!

---

The Byrd Rule will block portions of the reconciliation bill

I continue to receive emails from readers expressing concern about the provision of the reconciliation bill that would allow a defendant to ignore an injunction unless the plaintiff posts a bond to cover the defendant’s potential damages if the injunction is reversed on appeal.

As I have previously explained, the Byrd Rule would effectively block the “bond requirement” in the reconciliation bill. Under the Byrd Rule, provisions that do not directly affect expenditures or revenues must pass by a 60-vote margin. That won’t happen in this Senate.

The details and operation of the Byrd Rule are explained by Jonathan Gould in Slate, The one thing that could still torpedo Trump’s big beautiful bill.

If you are worried about one of the outrageous, extraneous provisions inserted into the Byrd Rule, I highly recommend Gould’s article in Slate to help calm your fears about those provisions.

And it is at this point that worried readers say, “But Republicans will just ignore the rulings of the Parliamentarian and pass the bill with 51 votes instead of 60.” The Slate article addresses that likelihood as follows:

Yet there is reason to think Republicans will allow the parliamentarian’s judgments to stand, even if they lead some provisions to be dropped from the bill. Making it easier to pass legislation would serve Republicans today, but it would likely aid Democrats in the future. For this reason, former Senate Majority Leader Mitch McConnell long believed in maintaining the filibuster and railed against expanded use of reconciliation. John Thune, his successor, has indicated that he intends to take a similar approach.

---

Elon Musk announces the end of his reign of terror at DOGE.

Good riddance!

And, BTW, congratulations to all the protesters who brought economic and reputational pressure to bear on Elon Musk’s prized possession, Tesla. It is because of you that Musk is retreating to his lair in Texas, licking his wounds, and trying to rationalize his failures in Washington.

Yes, DOGE will continue, and the damage it inflicted will remain. But the fact that Musk is officially “out of the picture” will undermine DOGE’s momentum and power. See Reuters, Without Musk, DOGE likely to fizzle out, says ex-staffer.

---

The Department of Health & Human Services issues a report citing non-existent sources

Robert Kennedy Jr. has pushed HHS to issue bogus reports supporting his conspiracy theory approach to healthcare. Earlier this week, HHS issued a report that was apparently written by AI, as evidenced by the fact that the report cited nonexistent reports. See NOTUS, The MAHA Report Cites Studies That Don’t Exist.

The actions by Kennedy are beyond reckless. They threaten the lives of Americans and represent belligerent ignorance by Kennedy and his sycophants.

Worse, HHS has cancelled a contract for Moderna to develop a vaccine for the bird flu. See STAT, Moderna bird flu vaccine development contract canceled by HHS.

Kennedy cancelled the Moderna vaccine development effort because Moderna was using mRNA technology—the basis for the Covid vaccine. While there were some side effects from the mRNA COVID-19 vaccine (as is true of all vaccines), the COVID-19 vaccine saved 3 million lives.

As a reminder, Kennedy has no medical background. What he does have is a demonstrated history of beliefs in disproven fringe conspiracies. The decision by Kennedy may be the most reckless action by the Trump administration to date.

---

Watch my interview with Luis Miranda Jr. and Katherine Pichardo of Latino Victory

I hosted a Substack livestream today for Latino Victory with guests Luis Miranda Jr. and Katherine Pichardo. Latino Victory is one of the leading national organizations in the effort to empower Latino candidates at every level and help “get out the vote” in the Latino community in 2026 and 2028.

You can watch the video here: Substack Live: Hubbell and Latino Victory or you can read a summary of the key points here: Latino Victory Substack, Key takeaways from Luis A. Miranda Jr. & Robert Hubbell on the Latino Vote and the Road to 2026.

If you are interested in helping Latino Victory to spread the word and get out the vote, please consider (a) subscribing to Latino Victory’s Substack newsletter, or (b) making a donation to help fund the organization’s efforts: Latino Victory Event with Robert Hubbell.

The interview is both fun and educational. And we did not shy away from the hard questions about the Latino vote in 2024, 2026, and 2028. Check it out!

---

Concluding Thoughts

In another sign that the resistance is succeeding, our cosplaying Attorney General Pam Bondi notified the American Bar Association that its historical role in vetting judicial nominees would be terminated. See Reuters, Justice Department curtails ABA role in vetting Trump's judicial nominees

Bondi gave the ABA the heave-ho because it has been outspoken in condemning Trump's assault on the rule of law and attacks on the legal profession. See ABA, Bar organizations’ statement in support of the rule of law.

In an unintentionally hilarious justification for the administration’s action barring the ABA’s input in the nomination process, an administration official wrote,

"The ABA even ruled that Clarence Thomas – one of the greatest jurists of our time – was 'not qualified' to serve as a judge.”

Ha, ha! Pure comedy gold! Saturday Night Live should hire that administration official ASAP!

But I digress. When an administration is reduced to efforts to silence its critics, you know it is desperate. Moreover, the administration knows that barring the ABA is a sign of desperation. And the administration knows that trying to silence critics always backfires. Henceforth, everyone will be waiting with bated breath for the ABA’s evaluation of Trump nominee—precisely because Trump tried to suppress the ABA’s evaluation.

The signs of success are accumulating, slowly but surely. As we come to the end of another week, we have reason for cautious optimism.

I will talk to you tomorrow and hope you will join me Saturday morning for the Substack livestream.

---

Daily Dose of Perspective.

I was finally able to set up my telescope on a cloudless night to capture some new images.

Below are galaxies M 65 and 66. They are roughly 40 million light years from Earth. The second photo shows my first effort to image the galaxies—an effort foiled by a photo-bombing satellite.