By using the courts to combat Trump’s agenda, the DNC risks defanging the presidency that they hope to win back in four years.
By Timothy K. DesJarlais, University of Arizona
Having lost control of Congress and the White House, Democrats are left to defend their agenda and oppose the Republicans in the courts.
So far, they have actually been quite successful. First, courts blocked not one, but two of President Trump’s travel bans. Then, the judiciary system struck down an executive order that would have allowed President Trump to defund “sanctuary cities” that refused to enforce or respect immigration law. Finally, even as I type, more lawsuits are springing up against President Trump that involve suing him over building a wall along the southern U.S.-Mexico border, changing the Bear Ears National Monument and more.
But, while President Trump’s opponents may be victorious for the moment, they may not like the long-term repercussions of their actions. Unlike legislation and executive orders, judicial decisions are very hard to undo. A new Congress or president can easily overturn previous laws and orders, but court rulings have to be overturned by another judge, and remember—judges serve for life. What’s more, as the judiciary finds success in blocking Trump’s various efforts to govern as he sees fit, the courts’ victories only embolden the branch, which exacerbates the problem. The more judicial rulings passed now, the weaker the executive branch will be in the foreseeable future.
While many Democrats and anti-Trump voters welcome the idea of a toothless tyrant, they overlook the fact that these court-ordered inhibitions will also apply to future presidents, some of whom would ideally be from their party. So yes, even though using the courts as a last line of defense against what they feel like executive oversight is working, they are only hamstringing their own efficacy in the long run.
What makes the situation direr is that the particular political method Trump is employing, known as the “carrot or stick” technique, is a favorite of presidents from both sides of the aisle. The method is a common practice when the executive branch is trying to influence spheres of government, usually at the state level, that are technically not under its jurisdiction. Since the federal government lacks the legal authority to actually affect its will in these cases, they shadow-box the state into doing their bidding through either enticing or punishing the governing body into doing so. When using the carrot, the federal government incentivizes conformity, usually though monetary rewards; when using the stick, the federal government punishes dissidence, usually though monetary reallocations.
An example of the stick method that may hit home with college students concerns the age at which it becomes legal to purchase alcohol. Technically, the state government retains the right to set the age at which young adults can legally buy booze. But, in 1984, Congress passed the “National Minimum Drinking Age Act,” a law that stipulated that any state that allowed citizens under twenty-one to purchase alcohol would have their federal highway funds cut by 10 percent. In doing so, they ostensibly respect the right of the state to make their own vice laws, but they all but strong-arm the local government into agreement by threatening to literally take them off the map.
More recently, President Obama and his administration employed the carrot and stick method in their attempt to make bathrooms transgender-friendly. To convince local school districts to adopt their proposed policies, Obama threatened to remove federal grant funding from state schools if they failed to properly modify their restrooms. Sure, technically the states could refuse the request and continue to operate as their constituency saw fit, but they would do so at the expense of billions of education dollars that the state, at this point, relies heavily on.
As you can see, depending on your political bent, the tactic can seem either authoritarian or efficient; it’s really just a matter of perspective.
The irony is that President Trump’s attempt to use the same technique is actually less radical than both of the previous examples. In the aforementioned cases, the president and Congress sought to add rules or requirements to existing state policies. In the alcohol ruling, the federal government wanted the minimum age risen to twenty-one, and with Obama and the restrooms, the Democratic president wanted schools and public buildings to spend money on infrastructure changes and education initiatives. However, in President Trump’s case, his executive order calls for no new deportation forces or immigration laws, nor does it demand that cities even assist in enforcing the pre-existing immigration law. Instead, all his injunction promises is a reallocation of funds away from cities that refused to enforce federal law, a move that, as I’ve evidenced, has plenty of juridical precedence.
As a result, as long as this most recent court ruling isn’t overturned, the new legal precedent it creates will pose a severe threat to all future presidential administrations. Going forward, if any president or Congress attempts to coerce a state, city or local jurisdiction into adopting their policy changes by threatening a reduction in funding, the challenged governing body can easily sue them in court, using this very case as legal blueprint for their argument against the federal government.
So, even though it is understandable that the Democrats would use any and all means necessary to fight what they consider to be a life-or-death battle, it pays to keep everything in historical perspective. If the DNC goes all in now, they risk shooting themselves in the foot later. While no one envies their position between a rock and an orange place, the Democrats had best understand that winning the war is more important than winning every battle. If they steal back the presidency in 2020, what good is it if they themselves have sapped it of its potency?