This Was a Very Good Week to Resist Trump

Photo by Fernando Andrade on Unsplash

There is a common phrase in left-wing activist circles, “when we fight, we win.” To be honest, I have never liked this phrase. Personally, I have lost a lot of campaigns that I fought damn hard on, and I don't appreciate the implication that the reason I lost is because I didn't actually fight. Further, any student of history who knows that when you look over the grand course of thousands of years of human civilization, lots of bad things have happened that lots of people have fought against.

That said, I do agree that you can't win if you don't fight. Over the last week, it is becoming increasingly obvious that, while there is no guarantee you will win if you fight back against Trump and defend your rights instead of caving to his demands, there is a very real chance that you might win. Here are three good examples of that from the past eight days:

1. Harvard is winning in court—and in the court of public opinion

On May 23, when the Trump administration retaliated against Harvard by suspending its ability to enroll international students, the oldest university in America quickly won a reprieve in in court:

A federal judge blocked the Trump administration's attempt to ban foreign students from attending Harvard within hours of the university filing its lawsuit Friday.

This isn't remotely surprising. Everyone knows that Harvard is not being targeted for breaking the law, but for refusing to give in to Trump's demands. Even Donald Trump more or less openly admits this.

Harvard's refusal to surrender their legal rights is clearly irking Trump, and causing him to make poor political decisions. On Wednesday, he ranted about Harvard during a press conference on an unrelated topic. Further, he has now convened a government-wide brainstorming session about how to further punish the impudent university. Of course, brainstorming ways to punish an organization for not bowing to your demands is a way to make you look petty, dictatorial and unhinged, not a way to come up with anything legal that will actually stick either in a court of law or in the eyes of the public:

The relentless focus has some inside the administration worrying that the longer the fight the greater the risk that the White House overplays its hand.

“We’re fighting a losing battle,” one of the administration officials said, acknowledging that the university has the narrative upper hand when it comes to the effort to revoke Harvard’s student visas. “We’ve [...] made them the victim.”

An Associated Press poll from earlier this month showed that only 27% of the country supported pulling university funding for not giving into Trump's demands, with 45% opposed (the rest of the respondents did not have an opinion). That is a pretty big plurality opposed to Trump's actions, but he seems determined to only dig deeper.

2. All the law firms who didn't cave to Trump are winning

In the early days of the Trump administration, numerous prominent law firms chose to bow to Trump's threats instead of fighting his obviously illegal actions in court. Collectively, nine prominent law firms made concessions on how they operated while also pledging $1 billion in pro bono legal work for causes that Trump supports. Only three of the firms targeted by Trump chose to defend themselves in court instead of caving.

Now, however, it is starting to seem as though the firms who caved made the wrong choice. For one thing, the law firms who chose to fight Trump and defend their democratic rights are universally winning in court:

A federal judge today [Wednesday, May 28] blocked Trump's executive order targeting the firm WilmerHale over its relationship with former special counsel Robert Mueller.(...)

Trump is now 0-3 in suits involving the handful of firms that opted to defend themselves in court after Trump targeted them with executive orders that threatened to cripple their businesses.

Further, there are early hints that caving to Trump will cost the nine firms who capitulated a lot more money than exercising their democratic right to defend themselves:

Paul, Weiss—the first major firm to capitulate to Trump—lost four of its most powerful senior partners last week. The attorneys, who represented some of the firm's biggest clients, including Amazon and Apple, plan to start their own firm, the New York Times reported.

Is it possible that self-respecting people don't like working for, and prominent businesses don't like being represented by, lawyers who quickly cave to obviously illegal governmental pressure? I think it is, and I think that lesson is starting to catch on.

3. Trump loses a lot of his leverage in his bullying trade negotiations

The biggest victory of all against Trump this week came from groups of business owners and Democratic state attorneys general who fought against Trump's arbitrary, destructive, and costly tariffs in the U.S. Court of International Trade. On Wednesday evening, that court struck down Donald Trump's 10% tariffs on all countries worldwide, the “reciprocal” tariffs of 20-50% he had imposed on dozens of countries, as well as his tariffs on Canada, Mexico and China. (All sector specific tariffs, such as those on automobiles, steel and aluminum, remained in place, as they are derived from a different legal authority and were not challenged in this specific court case.)

This was a unanimous ruling, on the merits of the case, from a panel of three judges that included two judges who were appointed by Republican presidents—one of whom has appointed by Trump himself. The crux of the ruling is that Trump exceeded presidential authority given in the 1977 International Emergency and Economic Power Act. The lawsuits against these tariffs were brought in two separate cases, one by a group of business impacted by the tariffs and the other by 12 Democratic state attorneys general.

Later on Thursday, a federal appeals court reinstated all the tariffs through at least June 9. Despite this, it is highly unlikely that the Trump administration will ultimately prevail in its appeal. This is because the U.S. Court of Trade ruled on the merits of the case, their ruling was unanimous, and it came from a panel of judges that was appointed mostly by Republican presidents. So, the days of the reciprocal tariffs on individual countries really are numbered.

Trump knows this, and so last night he lashed out at Leonard Leo, a leading figure in the Federalist Society. Trump's beef with Leo is that the Federalist Society largely selected the judges who were nominated by Trump during his first administration from 2017-2020, and those judges are just not ruling however Trump wants them to rule.

Short-term, the Trump administration will keep the country-specific tariffs in place for as long as they can via appeals. After that, they are likely to use a different legal authority to set tariffs of up to 15% on all imports for up to 150 days. During the intervening time, they are likely to work on imposing more industry and sector specific tariffs, which take longer to install but which are on much more solid legal ground.

As I see it, the main upshot of all this is that Trump's attempt to bully every country in the world into negotiating new trade agreements—which are conducted with him personally, rather than through any actual laws—is now severely weakened. Every single country in the world now knows that Trump likely lacks the legal authority to slap whatever tariffs on individual countries that he wants. Now that he lacks that threat, we should all expect it to start raining tacos on a regular basis.

Let's keep up the fight. If you are able, split a $10 donation to the Democratic state Attorneys General Association (DAGA) and Bowers News Media PAC. Democratic state attorneys general are leading the lawsuits against Donald Trump's tariffs–and winning.