Trump Faltering in Face of Lower Courts

The rule of law is proving to be stronger than he thought

Donald Trump no doubt underestimated the power of lower federal courts, which may be the single biggest obstacle to his autocratic ambition. The Contrarian has covered a number of these humiliating court defeats, including failed efforts to repeal birthright citizenship, deploy National Guard to Chicago, and fire Federal Reserve Governor Lisa Cook.

The list of Trump defeats grows longer by the day. Consider:

• The 3^rd Circuit’s decision upholding disqualification of the faux U.S. attorney for New Jersey Alina Habba;

• U.S. District Court Judge James Boasberg’s resumption of criminal contempt proceedings in the District of Columbia; and

• Rulings from 225 judges in more than 700 cases striking down ICE’s policy that “deprives people of an opportunity to seek release from an immigration court.”

These losses (in addition to his plunge in polls, the mass retirements of House Republicans, the Nov. 4 election shellacking, and more well-founded chatter about his mental and physical deterioration) may account for the increasing frequency of his unhinged outbursts.

In the Habba case, a 3^rd Circuit panel of three judges (two appointed by President George W. Bush) unanimously ruled that since the 120-day period for the president to fill the U.S. attorney position with his appointed interim U.S. attorney (Habba) had run without Senate confirmation, she could not legally remain under the guise of “Acting U.S. Attorney.”

The court disallowed the maneuvers to preserve Trump’s power to appoint his personal attorney to the post after it became obvious that she would not be confirmed by the Senate. As recounted by the court: “(1) the President withdrew Habba’s nomination for U.S. Attorney; (2) Habba resigned as Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as ‘Special Attorney’ to the Attorney General,” which purported to give her the same powers as a U.S. attorney.

The ruling disallowing Trump’s chicanery is critical in two respects. First, it serves to rebuff Trump’s frantic efforts to expand executive authority, thereby preserving the separation of powers (i.e., the Senate’s power to confirm nominees) that can block egregiously unqualified nominees. Second, the precedent will likely have ramifications in other cases challenging similarly unlawful maneuvers, including dismissal of the James Comey and Letitia James indictments based on the illegal appointment of Lindsey Halligan as U.S. attorney in the Eastern District of Virginia. Thwarting Trump’s attempts to unlawfully elevate cronies eager to conduct his legal war of vengeance against his opponents is a major blow to Trump’s dictatorial game plan.

Meanwhile, Judge Boasberg is proceeding full steam ahead with a probe of the regime’s allegedly intentional violation of his order to pull back planes with deportees headed to El Salvador. ABC News reported on Boasberg’s order that the Trump regime submit declarations from everyone involved in the decision:

Justice Department attorneys had urged him to abandon the probe, but Boasberg said he must determine whether Homeland Security Secretary Kristi Noem or anyone else “should be referred for potential contempt prosecution.”

“In other words, the Court must decide if: (1) the court order was ‘clear and reasonably specific’; (2) ‘the defendant violated the order’; and (3) ‘the violation was willful,’” he wrote.

Justice Department attorneys said in a filing that Noem made the decision not to abide by the court’s order based on advice of the DHS’s acting attorney general. The DOJ’s declarations (or its failure to submit information as required) will determine if witnesses will be called to court to testify.

Noem’s assertion that she, not the courts, decides what is legal is precisely the sort of lawlessness and unconstitutional usurpation of Article III courts’ power that Boasberg’s inquiry may sanction. Frankly, the Trump regime’s habit of ignoring court orders has become all too frequent. Even absent a finding of criminal contempt, Boasberg’s investigation may empower other courts to crack down on Trump officials’ contemptuous conduct.

Finally, in addition to the slew of losses Trump has racked up in cases concerning deployment of the national guard and misconduct by federal agents, Politico reports that Trump’s unprecedented policy to “systematically lock up nearly all immigrants facing deportation proceedings” has been rejected by over 220 judges appointed by presidents of both parties (including 23 Trump-appointed judges) while only 8 judges (6 of whom Trump appointed) have sided with him. Politico’s report explains:

Courts, increasingly aware of the one-sided rejection of the administration’s policy, have grown exasperated by the deluge of litigation that has flooded their dockets. Some have made a partial accounting of the sheer volume of rulings against the administration. But even those don’t capture the breadth of rulings against the administration revealed on dockets across the country.

We have reached this point because the regime has abandoned 30 years of precedent “when it concluded that millions of immigrants who have lived in the U.S. for years could still be treated as ‘seeking admission’ to the country—subjecting them to mandatory detention typically only meant for new arrivals.”

Public opinion reflecting disapproval of Trump’s draconian immigration policy that plainly is not aimed at deporting the “worst of the worst” and his serial failures in court bode well for the rule of law and Americans’ long-standing belief about the positive role immigrants play in our communities.

If Trump thought his election was a green light to engage in a massive, lawless, and brutal reign of terror—with a goal of “reimmigration” (a term favored in European far-right parties for policies that amount to ethnic cleansing)—he misjudged the tenacity of lower federal courts and the decency of Americans (who have risen to the occasion in protests, rallies, and ongoing efforts to warn neighbors about ICE raids).

Perhaps Trump has been freaking out more frequently because he senses his power draining away at an accelerated clip. Among others, the lower courts have had it with him. Politically, some Republicans in Congress tentatively have begun standing up to him (e.g., insisting on the release of the Epstein files and an investigation into an alleged war crime or murder in the Caribbean), while voters and Contrarians like you have emphatically rejected him and MAGA at the polls.

The lower courts’ and voters’ refusal to be cowed amounts to a calamity for a narcissist whose grip on power depends on fear and an aura of invincibility.

Expect the temper tantrums to get worse.