Where's the anti-Trump resistance? In the courts, where liberal judges are resisting abusively.

I hear liberals complaining constantly that other liberals are rolling over for Trump. Where’s the resistance of yesteryear, they moan.

It’s true that the resistance of 2017 hasn’t quite mustered. As far as I know, there are no riots and the current protests don’t approach those of eight years ago in magnitude.

The federal bureaucracy (the Deep State, if you prefer) isn’t resisting all that vigorously so far, either. This time, Trump beat it to the punch. A counter-punch may be coming. But with so many Trump loyalists in place where once roamed the likes of James Comey, it’s likely to be more passive and subtle in nature.

The liberal mainstream media is resisting about as strongly as before. Left-liberal organs like the Washington Post don’t have a Russia collusion fake story to peddle, but they are complaining non-stop about Trump. CNN and MSNBC talk show hosts are as upset with Trump as ever, though the CNN panels do have more intelligent and articulate dissenting voices than they did in 2017.

As for congressional Democrats, they are doing what they can, which makes it hard to understand why some left-liberal pundits are complaining about them. They vote as a bloc against confirming Trump’s controversial nominees. It’s not their fault that, other than Mitch McConnell, the Republican members lack the backbone to vote against even the most ridiculous and unqualified nominees.

The bad news for those opposing Trump is that they don’t have the votes in Congress with which to mount an effective resistance. The good — and more important — news is that they have left-liberal judges and smart lawyers who can get cases before them.

I have no problem with taking Trump to court. The judicial branch exists, in part, as a check on abuses of power by the executive branch.

So far, however, the abuse is coming from the judiciary — specifically from the handpicked liberal district court judges before whom the opposition is bringing cases.

Mike Fragoso explains this abuse here. He writes:

This past week district judges have issued sweeping temporary restraining orders (TROs) against the Trump administration, purporting to stop various agencies and officers from executing the president’s orders. The tactic of judges granting unreviewable relief to manage the internal affairs of the executive branch is a shocking escalation in judicial lawfare. . . .

TROs are the most extraordinary form of relief in the judiciary — sometimes, even here, granted before the defendant has an opportunity to argue his case. Because they are supposed to be temporary and unusual, they also can’t be appealed. If you don’t like a TRO all you can usually do is seek a writ of mandamus, itself an extraordinary form of relief that is rarely granted.

If these were preliminary injunctions, the government could appeal and seek an administrative stay — that is a pause of the order until the appeal has been resolved. In multimember circuit courts the odds of getting an administrative stay are considerable, which would allow the president to carry out his initiatives while the litigation proceeds.

In other words, by issuing TROs and removing an avenue for appeal, these judges aren’t just ruling against Trump, they’re also making sure that he is stuck with the order for as long as the trial judge sees fit.

(Emphasis added)

Very clever. Very unprincipled. And largely unprecedented as a means of combatting the executive:

Even the much-maligned Texas district judges [who heard cases challenging Biden administration overreach] didn’t behave like this. . .Would they rule against [Biden] and enjoin his initiatives? Sure. But they often went so far as to keep their own opinions from going into effect to give Biden time to appeal and seek a stay. That judicial courtesy is nowhere in sight today.

The unwillingness to give Trump’s team time to appeal and seek a stay is all the more egregious given the highly intrusive nature and, indeed, the dubious constitutional footing of the rulings being issued against it:

Many of these TROs implicate core executive power. Cases like the USAID personnel reforms in D.C., or the fork in the road in Boston, or Treasury access to information in Manhattan, are cases about how the executive branch shall function as a matter of administration and personnel.

These aren’t suits challenging rules under the Administrative Procedure Act, where Congress prescribed a justiciable process for some agency actions. Nor are these three cases suits about enforcement policies which implicate the rights of third parties against the government. They’re suits about the inner workings of the executive branch.

Generally questions of bureaucratic management are dealt with ex post and not ex ante. That is, you remedy legal violations in this context after they happen; you don’t prevent them. The legal structures in place allow someone wrongfully terminated to be reinstated or given back pay and they don’t contemplate judges preventing them from being fired. There’s a whole process for adjudicating personnel matters via the Civil Service Reform Act that goes through the Merit Systems Protection Board — not through trial judges. In fact, the D.C. Circuit has held that federal district courts lack jurisdiction over “personnel matters.”

But some of these orders go well beyond interfering with the executive by misapplying civil-service protections and in fact strike at the heart of Article II of the Constitution. Restricting the Senate-confirmed Treasury Secretary from reviewing information within his agency’s control fundamentally frustrates his ability to “take care” that the laws be enforced. It’s a staggering intrusion on presidential power from the judiciary.

(Emphasis added)

What will be the outcome of the left’s lawfare against the executive? Fragoso warns that if the issuance of abusive TROs persists:

the executive branch will start treating [them] like it treats congressional subpoenas: worthy of some respect but, in the end, not superseding core executive power. And if Secretary Scott Bessent is therefore held in contempt, Attorney General Pam Bondi won’t be sending her Marshals to arrest him. . . .

Eventually, says Fragoso, “the Department of Justice will find a way to get these orders in front of the justices, perhaps through disfavored mechanisms like mandamus, and certainly on the emergency or “shadow” docket. When it does, the Court needs to send a strong message to trial judges: the president controls the executive branch, not you.” (Emphasis added)

I believe the Supreme Court will send this message. Where Trump truly has overstepped by infringing on Congress’ power or by being on the wrong legal side of a constitutional question (e.g., birthright citizenship), I think the Court will say so. Where, as seems to be the more usual case, it’s the lower courts that have overstepped, I think the Court will say that.

I think it more likely than not (but far from certain) that Trump will abide by orders of the Supreme Court in these cases. I hope he does.

If he doesn’t we’ll have that constitutional crisis that liberals keep saying is upon us. Part of the blame will rest with the judiciary for precipitating it.