State Lawsuits Threaten Trump’s Executive Orders

Is the President Tied down by Lilliputians?

PHOTO 12 / ALAMY STOCK PHOTO

President Donald Trump’s executive orders and agency directives are terrorizing Washington’s insiders, but the most consequential are provoking legal actions that could delay their implementation or eviscerate them altogether. Trump speaks as if he is the biggest bully in town, but he may soon find himself a Gulliver tied down by Lilliputians.

The constitutional design of the federal system presents a fundamental challenge to the Administration’s agenda. According to long-standing legal doctrine, the Constitution gives sovereign power to both the federal government and the several states, giving states the authority to challenge federal actions. When different parties are in power at the state and national level, conflict between tiers of government escalates—and the winner is for the courts to decide, not the man residing inside the Oval Office.

A federal system induces moderation and compromise. “The different governments will control each other” in the 21^st Century, just as they did when James Madison first penned these words.

Within days of his inauguration, Trump announced the elimination of units engaged in “diversity, equity and inclusion” activities, fired senior staff at the FBI, cut federal grants, reduced university research funding, and began the deportation of those who lack proof they entered the United States legally, and much more.

But the design of the federal system may preclude the president from achieving many of these and other declared objectives. In 23 states, including California, New York, Pennsylvania, Illinois, and North Carolina, the attorney general was either elected as a Democrat or appointed by a Democratic governor. The office of the attorney general is responsible for defending the interests of the state against any perceived abuse of federal power.

Democratic attorney generals are just as prepared as the Trump team for the current political struggle. Coalitions of attorney generals formed prior to election day so coordinated responses to executive orders could be mounted within days, sometimes hours, of presidential announcements. Forty lawsuits and counting have been filed so far, a hefty share emerging from the offices of attorney generals. “We saw this coming. . . ., We started preparing . . . almost two years ago,” explained former Oregon attorney general Ellen Rosenblum. “I believe that there’s no group better prepared to push back,” confirms Letitia James, New York’s attorney general and gubernatorial hopeful. She takes pride her ‘office has been preparing…I am ready to do everything in my power to ensure our state and nation do not go backwards.”

Coalitions of attorney generals have numerous advantages in the upcoming legal battles. For one thing, they do not need to worry much about standing to sue. An attorney general has the duty to defend the state whenever federal action appears to impinge on its sovereignty. As California’s attorney general, Rob Bonta, put it: “It’s hard work, but . . . that is what we signed up to do.” Oregon’s legal head views Trump’s actions as an “existential threat.”

Just as important, attorney generals, as plaintiffs, are generally able to pick the judge who will hear the case. Democratic presidents nominated 60 percent of all the judges sitting on the federal district court bench. Attorney-general coalitions need not hunt far before finding one likely to bend a friendly ear.

A temporary injunction by a district judge will halt the impact of executive orders and agency actions. That ruling stands until overturned by a higher court, a process that can take months, even years, especially if the matter is to be determined by the Supreme Court. Meanwhile, the district-court decision applies nationwide. A district judge in Rhode Island can hand down a ruling that applies in California, Florida, and everywhere in between.

With all these advantages, plaintiffs against the Trump Administration have won 9 out of 10 decisions in district courts thus far, a completion rate most quarterbacks will take. If anything close to this rate continues, it will hollow out Trump’s boast to make America great again.

The president can hope to win back early defeats as decisions are appealed up to higher federal courts. Eventually, a conservative Supreme Court may be convinced by the arguments offered up by the President’s Solicitor General. But months, even years, pass before the highest court in the land finally decides. Even then, district judges can, if so disposed, interpret the Supreme Court’s ruling in creative ways that undermine the administration purposes. It took decades before the Brown decision took effect in southern states determined to resist its impact.

A term-limited president cannot wait that long. Theodore Roosevelt became a lame duck the day after he announced he would not run for re-election. Trump cannot avoid the same fate, as the Constitution’s 22^nd Amendment precludes another term. That Trump regularly cracks jokes about serving beyond his second term reveals how much the passage of time is on his mind.

Time will run out quickly if Democrats win control of the House of Representatives in the mid-term elections. In 21 of the 24 most recent mid-terms, the party of the president has lost ground in the lower chamber. If history repeats itself, Trump will find himself knotted down firmly by potent Democratic opposition.

Tiny majorities in both House and Senate help explain Trump’s reliance upon constitutionally problematic executive actions. In all but financial measures, Republicans have to attract at least 7 Democratic votes to end filibusters necessary to pass any bill not enacted via the reconciliation process, which is exempt from the 60 percent cloture rule. Reconciliation bills are (for the most part) limited to fiscal matters, and they may not increase government expenditure, making them a complicated vehicle for introducing policy change. Any small group of Republicans can kill a reconciliation bill that includes material not to its liking. After all the deals are made, much of the Trump agenda could find itself left on the cutting room floor.

Stalled on Capitol Hill and with time running out, Trump must use the power of the pen, as Barack Obama put it, to effectuate his policies. That Trump cannot afford delay explains the frequency with which his signature is appearing.

Executive orders can be written on day one, but they last only as long as the executive branch is in friendly hands, as Trump discovered when his successor canceled Trump’s first round of orders. Unless Republicans consolidate their national majority, they will undoubtedly happen again.

This is not to say that Trump’s actions will have no impact. Genetically male athletes may not participate in female sports during Trump’s time in office. “Diversity, equity, and inclusion” initiatives may wane under federal pressure, though institutions may practice what they don’t preach. Undocumented immigration may slow, but actions taken by cities, states, and lower courts will depress deportation rates. Government spending will retract from its Covid high, even if it remains above pre-pandemic levels. Pennies will disappear from cash registers, but nickels will become more expensive to produce.

In sum, the pace of change in American government will be more measured than current rhetoric suggests. Democrats shall become increasingly grateful for federalism’s inherent, impassive, massive strength.

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Paul E. Peterson is a senior fellow at the Hoover Institution, Stanford University and a professor of government at Harvard University.