Jay Kuo writes a delightful blog called The Status Kuo. He is a lawyer with a sense of humor, and he writes clearly for the public, not for other lawyers.
This post is important because Kuo shows that the courts are blocking Trump’s overreach and cautions us not to assume that the Supreme Court will act as Trump’s echo chamber.
He writes:
Trump’s losses in the federal courts continue to pile up, and this week saw a number of critical rulings go against him. Judges from D.C. to Texas to California rejected the Trump regime’s illegal overreach on tariffs, deportations, military law enforcement and even his invocation of the Alien Enemies Act.
Let’s do a legal lightning round to summarize these rulings, any one of which frankly is important enough to have warranted its own stand alone analysis. Today I’ll cover
- A major ruling from the Federal Circuit invalidating most of Trump’s “Liberation Day” tariffs;
- A long weekend emergency ruling stopping planeloads of unaccompanied children from being deported to Guatemala;
- Trump’s big loss after a bench trial in California over his unlawful use of federal troops in that state; and
- The Fifth Circuit smackdown of Trump’s invocation of the “Alien Enemies Act” to justify summary deportation of alleged gang members.
Make no mistake: These are big losses that carry major implications for Trump’s plans to isolate the U.S., impose a police state, and conduct mass detentions and deportations.
And if you’re now thinking to yourself, “What does it matter, the Supreme Court will reverse these?” or “Great, but Trump will just disobey the orders,” I want to hit pause and do a reality check. As I’ll explain toward the end of this piece, these arguments, while common and understandable, simply don’t match the facts on the ground….
At this point, Kuo discusses each of the above decisions. You should subscribe to read these analyses.
But these rulings don’t matter! SCOTUS will overrule! Trump will defy!
There’s an understandable tendency to hear about a big court victory for the good guys but then cynically dismiss it, claiming either that the Supreme Court will overturn it, or that the Trump White House will simply ignore the courts’s orders.
I want to encourage readers to not fall into this trap. True, the Supreme Court has intervened in a few cases to lift a few injunctions imposed by lower courts, and that admittedly has been awful to see. But it hasn’t ruled substantively on much of anything yet.
And that has allowed court victories by the good guys to produce some real progress.
For example, the Blue State Attorneys General group has been successful at using lawsuits to claw back huge sums impounded by the White House. This has occurred even while the red states, which failed to challenge the illegal withholdings, were left starved of funds.
In his newsletter today, Robert Hubbell pointed to a chart with data from KFF Health News illustrating how successful lawsuits have spared the blue states from a great deal of the blow to public health infrastructure funding:
This helps show that the Supreme Court hasn’t been able to stop every lawsuit from succeeding. Indeed, many if not most have achieved their goals.
It’s also common to believe that the government is simply refusing to comply with every single court order. This misconception perhaps arose because so much attention was on a pair of lawsuits involving deportations, where the Justice Department and Homeland Security pretty much gave the finger to the courts.
But those are the only instances I’m aware of where court orders have been defied outright. And there are now major consequences for those involved with the plan to show open contempt. Judge Boasberg is now weighing bar disciplinary referrals for the lawyers involved.
In other cases, it is also true that the government has dragged its feet, delayed, deflected, misdirected and sought immediate appellate review of preliminary injunctions. But that is not the same as open defiance. And the courts have gotten much better at holding the government’s feet to the fire, as we just saw with Judge Sooknanan’s order followed by a demand for a series of status updates, all to keep the government on the straight and narrow.
The Department of Justice wants the American public to assume that none of the orders granted by federal judges are being heeded. They want us to believe that they, and not the judiciary, are in control. But this is simply not the case. As we saw this weekend, the Justice Department doesn’t have the appetite for another round of contempt proceedings, and it is even turning planes around when ordered to do so.
Zooming out a bit, we can understand why. The Justice Department is in disarray and demoralized, it has in some instances squandered the crucial “presumption of regularity” that is normally afforded to government functions, and the Trump regime is now losing the lion’s share of the most consequential lower court cases.
Sure, the Supreme Court may eventually weigh in with a set of terrible decisions. But that won’t stop, and hasn’t stopped, resourceful civil rights lawyers from finding new and novel ways to attack the White House’s policies and orders. For example, when SCOTUS found that litigants could not obtain nationwide injunctions against White House directives, plaintiffs adjusted quickly, moving for class certification so that the nationwide part got built into the definition of the class.
And who knows? Maybe even this SCOTUS majority will draw the line somewhere—perhaps by protecting the bright line independence of the Federal Reserve or by telling Trump he can’t order federal troops anywhere he wants for whatever mission he wants.
Until then, every win in the lower courts chips away at the MAGA fascist golem, and maybe with enough blows, we can take the entire monstrosity down.
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