Donald Trump soundly defeated Kamala Harris, regaining the presidency and winning a second, nonconsecutive term. The polls, which underestimated Trump’s support in 2016 and 2020, again undersold the breadth of his appeal.
Trump has pulled off one of the most startling second acts in American history. On January 6, 2021, in the midst of an embarrassing and politically catastrophic riot, Hope Hicks, former Trump advisor and communications director, texted an associate, “In one day he ended every future opportunity that doesn't include speaking engagements at the local proud boys chapter.” Following multiple indictments and trials, it was assumed that Trump would end his days in ignominy. Yet he rose from a reputational nadir to regain the most powerful office in the world.
It is beyond question that Trump is an electoral genius. It remains to be seen, however, whether he is as capable at politics—at governing—as he is at getting elected. Trump’s first term was obstructed even before it began, and he was unable to achieve much of his domestic agenda. For those interested in Trump II’s success, the failures of Trump I offer valuable lessons.
Upon entering office, Trump was embroiled in the Russia-collusion hoax, concocted by Hillary Clinton’s campaign, the outgoing Obama administration, and the tentacles of the intelligence community, which used a compliant media to bind Trump “seven ways to Sunday,” in the words of Senator Chuck Schumer. Trump faced constant negative press and a lengthy and tedious investigation, culminating in an impeachment whose specifics have been forgotten.
Since the Russia hoax was arguably foisted on Trump, it may be unfair to insist that he should have handled it differently. The Trump team ought nevertheless to anticipate the return of the anti-Trump “Resistance,” and prepare to counter similar legal efforts to thwart the president and his agenda as he embarks on a new term in office.
Consider the response to Trump I’s “Muslim ban.” Shortly after taking office in 2017, Trump issued a series of executive orders aimed at protecting the border and enhancing national security. Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” restricted travel from seven Muslim-majority nations, though it did not mention religion; nor did it apply to dozens of other Muslim-majority countries.
The Left’s legal advocacy apparatus leapt into action, filing suits in federal courts to block enforcement of the order. Judges issued temporary restraining orders barring its implementation, and the administration was forced to pursue appeals and recast the order to work around various courts’ injunctive language. The Supreme Court eventually declared Trump’s order constitutional, but it took nearly two years for that ruling to come down.
In his second term, Trump and his team must take a strong stand against vexatious federal lawsuits filed before pliable and friendly judges who overstep their jurisdiction to impose their views. The judicial maneuver known commonly as a “nationwide injunction”—whereby a district court judge blocks a law or order’s implementation across the country, even for parties unconnected with the case at hand—is novel in American jurisprudence, dating back only to the 1960s, when judicial activism and the administrative state expanded to meet the challenges of civil rights legislation, giving judges enormous new power. Universal injunctions were nevertheless rare until the Obama years, but they exploded under Trump, when dozens were issued. The United States entered a mirror world where Derrick Watson, a district court judge in Hawaii, continually enjoined the Trump White House’s rulemaking regarding entry of noncitizens to the country—unquestionably an exercise of executive authority. Judge Watson became a hero to the Resistance, absurdly establishing his remote courtroom as a counterweight to the presidency.
Under President Biden, however, leftist legal scholars began abandoning their embrace of universal injunctions. Following the Dobbs decision, a group of antiabortion doctors brought suit in a Texas federal court, demanding that the FDA withdraw its approval of mifepristone, a widely prescribed abortifacient. Matthew Kacsmaryk, a district court judge in Dallas known for his conservative opinions, granted the injunction, immediately creating mass confusion nationally. What is good for the liberal goose was evidently good for the conservative gander.
Liberal legal scholars thus discovered that national injunctions may be a bad idea. As the Harvard Law Review reports:
President Biden called Judge Kacsmaryk’s order “the next big step toward the national ban on abortion that Republican elected officials have vowed to make law.” Professor Nicholas Bagley asked: “[Judge Kacsmaryk is] just a single judge in a small courthouse in Amarillo, Texas. Does he really have the power to dictate national policy about drug safety? If so, should he have that power?” Dean Erwin Chemerinsky explained how “the case reveals underlying problems in the judicial system” and argued that “[l]itigants should not be able to handpick a judge who then can issue a nationwide injunction throwing the entire country into chaos.”
Justice Clarence Thomas has indicated that nationwide injunctions are likely unconstitutional. In a concurring opinion in the “Muslim ban” case, for example, Thomas wrote that judges “have begun imposing universal injunctions without considering their authority to grant such sweeping relief,” and noted that such injunctions “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.”
This round of the Resistance will likely be just as crafty and determined as its predecessor. Everyone connected with Trump II should be on notice. In his second term, Trump will need to flex executive muscle, ignoring the inevitable nationwide injunctions seeking to block his agenda and forcing the Supreme Court to address the constitutionality of district court judges setting national policy from obscure courtrooms.
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