U.S.

The Anti-Trump Resistance: Lawyers Lead the Fight Against the White House

Trump immigration ban
02/24/17
In the Magazine
President Donald Trump sits in the Oval Office of the White House in Washington, D.C. on February 8. REUTERS/Joshua Roberts

Updated | Bob Ferguson was ready. It was the end of January, and the Washington state attorney general had been concerned that President Donald Trump would soon issue a sweeping executive order targeting immigration. A bespectacled former chess champion, Ferguson had been plotting for weeks with various immigrant rights groups in the state about how to combat Trump’s first move. Then, on the last Friday in January, the White House issued its now infamous executive order targeting immigration from seven predominantly Muslim countries.

Ferguson was home that weekend but went into his office to work on an appeal. His solicitor general, Noah Purcell, a former U.S. Supreme Court clerk, guzzled coffee from a full-sized Starbucks box in his office, as opposed to the chain’s ubiquitous white cup. Within a day, they had lined up two of the state’s most prominent employers, Amazon and Expedia, to sign on, and soon they had persuaded a federal judge in Seattle to put the Trump ban on hold nationwide. Just before that ruling, Ferguson told Newsweek, “I’m going to keep going where the law takes me.”

Related: U.S. Appeals Court Refuses to Reinstate Trump's Travel Ban

On February 9, the law dealt the Trump administration a major blow when a federal appeals court panel unanimously denied the Trump administration’s request to reinstate its restrictions on the seven countries in question: Syria, Somalia, Yemen, Iran, Iraq, Libya and Sudan. The case will continue to work its way through the courts, and perhaps some form of the immigration restrictions might pass judicial review at a later date. But for now, it’s Lawyers of the Resistance 1, Trump 0.

The Trump revolution was born out of an explosion of anger at politics as usual, but it may be thwarted by something more banal—the diligent, daily work of attorneys filing briefs, injunctions, suits and complaints. State attorneys general and public interest groups have had some notable successes. Not only did the courts halt the travel ban, but a Trump administration attempt to rescind a Labor Department rule requiring retirement advisers to put their clients’ interest first is being held up as well. This legal battle on many fronts will test not only the system of checks and balances that’s a staple of Schoolhouse Rock but also American judges’ willingness to insert themselves into the fray between a galvanized opposition and a president who has a fetish for litigation. If you want to clock the fate of Trump’s presidency, watch the courts and the lawyers determined to tie the New York real estate mogul down like the Lilliputians binding the giant Gulliver.

Of course, legal challenges to presidents are nothing new. The Supreme Court stopped Harry Truman from seizing America’s steel mills during his labor-strike-prone tenure. Richard Nixon fought all the way to the highest court to keep his Oval Office tape recordings private—a battle he lost and one that led to his resignation. Bill Clinton’s impeachment was driven by a private sexual harassment lawsuit that the Supreme Court ruled was permissible. When Clinton prevaricated in that proceeding, Congress began trying to toss him out of office for perjury. And, of course, the executive branch is sued all the time. The Obama administration faced challenges on everything from immigration rules to recess appointments.

The Trump administration is likely to be in court even more than its predecessors. “The courts are going to be a major avenue for checks and balances,” says Michael Waldman, who heads New York University’s Brennan Center for Justice, a public policy and legal advocacy institute that has tangled with several Republican governors over issues like voting rights. A big reason why is that liberals and Democrats now don’t have much recourse when it comes to Congress, where both chambers are controlled by Republicans.

We haven’t seen the full onslaught of litigation, but more than 50 lawsuits are already in progress. One involves the emoluments clause of the Constitution, which bans government officials from profiting from foreign interests. Two former White House ethics czars, Norm Eisen from the Obama administration and Richard Painter from George W. Bush’s White House, are helping lead a lawsuit charging that the president’s failure to sell his business interests and put them in a blind trust violates the constitution. The suit is being filed by Citizens for Responsibility and Ethics in Washington (CREW), and the group enlisted famed Harvard Law professor Laurence Tribe to be part of the legal team.

But the suit illustrates the difficulties awaiting those trying to sue President Trump. Courts have been loath to get between the branches of government on a thorny issue like the constitutional gift ban. And it can be hard to find plaintiffs who have what the courts call “standing”—proof that they were harmed by the president’s actions. It’s not enough just to be a citizen registering a complaint. You have to show that you were personally injured. CREW is arguing in court that having to sue Trump over the gift ban is costing it money by diverting its limited resources from its usual work of chasing government scandal. The court may not buy that kind of reasoning. Finding another plaintiff—say, a major hotel chain that claims it’s losing customers to Trump hotels because foreign diplomats want to curry favor with the president—won’t be easy.

One thing the lawyers of the anti-Trump resistance have going for them: The president has been sloppy. The travel ban from those seven Muslim-majority nations was so poorly crafted that it gave lawyers an opening to block it in federal court. Department of Justice lawyers kept insisting it wasn’t a Muslim ban, but on Fox News, former New York Mayor and Trump adviser Rudy Giuliani said the policy emerged from an effort to take the sweeping Muslim ban Trump touted early in the campaign and then make it legal.

In another case, Trump-resistance lawyers found an opening with the administration’s carelessness. Trump’s executive order declaring that two regulations should be nixed for every new one that is enacted made for a snappy campaign promise, but it runs afoul of administrative law, a somewhat sleepy area of jurisprudence that’s likely to get a lot more attention during the Trump years as public interest groups work overtime to make sure that every rule change is legal. “Administrative law is suddenly glamorous,” says Jeffrey Rosen, president of Philadelphia’s National Constitution Center.

On February 7, the Natural Resources Defense Council, the Communications Workers of America and advocacy organization Public Citizen sued Trump and his new director of the Office of Management and Budget over the two-for-one rule. Public Citizen v. Donald J. Trump argues that the president has exceeded his constitutional authority and that the proposed rule would prevent agencies from faithfully executing the laws.

Allison Zieve, who heads the litigation group at Public Citizen, has been astounded by what she jokes is the “wackiness” of the Trump rule-making so far, noting that the administration has ways to scale back regulation that are not so vulnerable to legal challenge. She adds that all of the Trump efforts to reverse years of safety, environmental and other litigation can be head spinning at times. “We’re feeling a little overwhelmed every day,” she says.

After the appeals court upheld the temporary restraining order on the Trump immigration ban, the president chirped in a tweet, “See you in court.” Purcell, the Washington state solicitor general, seemed more than eager to take up the president’s challenge. And after the decision, Ferguson hailed the victory, saying, “No one is above the law, not even the president. The president should withdraw this flawed, rushed and dangerous executive order which caused chaos across the country. If he refuses, I will continue our work to hold him accountable to the Constitution.”

Join the Discussion