This week’s Weekly Constitutional offers some general commentary rather than an exploration of one particular text, though it is occasioned by the court decisions this week quashing and then temporarily reinstating the US government’s “emergency” tariff policy.
Military strategists, as Lawrence Freedman describes, warn of the dangers of falling into the “short war” fallacy where “all is supposed to be decided in the first days, or even hours, of combat”. For, as aggressors find out again and again, such an optimistic approach often does have to contend with messy reality. Instead of a swift and easy short conflict there will be an endless exercise in attrition and stalemate. It becomes what can be called a “forever war”.
This is also the case in other areas of human endeavour. In the United States, the second presidency of Donald Trump began with a blitzkrieg of executive orders and other expressions of executive will. These eye-catching initiatives were intended, as the tech bro saying goes, to “move fast and break things”. They covered migration, tariffs, universities, executive bodies and even individual law firms and individuals.
To the extent that any thought was applied to these decrees being litigated, the notion appears to have been that the court cases themselves would also be quick wins. The policy would be promptly upheld by Trump-friendly judges. Or the measure would be immediately quashed by the dastardly Marxist justices who did not support Trump and these defeats could then be weaponised for campaigning. Speed would be of the essence. This must have all seemed so easy.
Yet after this busy initial phase of the Trump administration, there have been few wins, quick or otherwise. There were certainly some early dramatic gains, as unexpected things occurred and caught many off guard. There was excitement for Trump’s supporters, and exasperation for those who supported the rule of law and the separation of powers. There was constitutional drama as well as an underlying constitutional crisis.
Now, many of those executive orders are subject to the dull, low-level buzz of ongoing litigation in the lower courts. Few substantive matters have been expeditiously escalated to the seemingly Trump-friendly Supreme Court. And even that ultimate tribunal seems to be avoiding ruling where there are clash points.
Some of the policies have been reversed, but many of those reversals are, in turn, stayed and appealed. But what seems to be happening is that most of the cases are in what can be dubbed “procedural hell”, with a succession of interim hearings, temporary orders and satellite disputes. There have been few big victories either way. It has settled down into judicial trench warfare, and the various cases related to Trump’s executive orders are unlikely to be over by Christmas.
It is difficult to say whether this was the real intention when the initial flurry of presidential activity took place. Some Trump partisans may maintain that the goal was to show up the obstructionism of the judiciary, that the judges have merely played into the hands of a presidential genius. Perhaps. But few onlookers have kept much interest in the endless appeals and applications of lower tier federal courts. Even Trump seems bored.
So how has this happened? Why has a politician as adept at public manipulation as Trump, with his flair for PR and humiliating others, ended up with this ever-expanding sideshow of interminable boring litigation? There are two reasons, both to do with the nature of law and the legal system.
The first reason is that once a dispute goes before a court it converts from a bilateral to a trilateral matter and this changes the dynamic. It ceases to be entirely about how one party can intimidate or defy the other, for there is now a third party—the judge and sometimes a jury—that has power over both.
Trump is deft and ruthless in bilateral power relationships. Threatening to sue someone or even bringing suit can achieve its goal—especially in business—long before anyone gets to the courtroom doors. But once a matter is seized by the court, that immense power to intimidate goes away. The bully becomes just one party in a triangular relationship.
The use (and abuse) of litigation as commercial pressure, which served Trump well as a businessman in New York (aided by the infamous Roy Cohn) does not work so well with public interest cases that tend to go all the way. Yes, some law firms subject to executive orders have folded, to their eternal discredit. But those tactics do not work so well with the likes of Harvard University or the Institute of Peace or international businesses faced with erratic tariff hikes.
The second reason is that, well, lawyers tend to be good at being lawyers. And many judges were good lawyers in practice before moving to the bench. Like those who regularly play chess, experienced litigation lawyers and judges will know the near-infinite array of next moves at any given point: what applications and appeals can be made, what stays and orders can be asked for, what objections can be made, sustained or dismissed.
And a wise lawyer knows that a case is often won or lost before it ever gets to the public spectacle of a trial or an appeal—if it ever even gets to a trial or an appeal. The art of law here is not dissimilar to Sun Tzu’s The Art of War—and both are very different to Trump’s art (or artfulness) of the deal. A court cannot easily be bounced, as Trump is now discovering, to the extent that this expanding sprawl of litigation is keeping his interest at all.
None of this means that there is not a constitutional crisis in the US. The cavalier attitude of the federal government to legal obligations and duties to the court is a fundamental problem. There is no obvious solution, short of impeachment before the next presidential election.
It instead means that the crisis is going to quietly carry on. Federal disobedience and insolence will be addressed by thousands of court orders, rather than in one big bang hearing that can be watched on television. This is a constitutional crisis in slow motion.
All this court action and inaction is not something that can be ended by gestures or a change of mind. A lot of this litigation is now going to go on for a long time, even if all the unwelcome polices are suddenly changed, and the federal government recants. This is because a great deal of damage has already been suffered, even if an adverse policy now comes to an end. And where there is damage, there are damages.
New York Trump could always bring a case to a convenient end, but Washington Trump will find that extraction far more difficult. Bringing these cases to an end is not within the control of the federal government. Others will need to agree, who may not have any reason or incentive to agree. Trump has engineered his own forever war.
