by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Refusing to accept the outcome of the election, progressive legal groups rallied around a hashtag that soon became a movement: #Resist. The New York Times reported that advocacy organizations “put aside institutional rivalries” to make “legal resistance one of the defining attributes of the Trump era.” There is nothing novel about sore-loser litigiousness. Republicans resorted to this strategy over the last eight years. What is remarkable, however, is the breadth and speed of the successes of the anti-Trump lawyers in impeding a presidency. Their movement was advanced by Obama-administration holdovers within the executive branch, and even by federal judges, who abandoned their traditional role out of a fear that Donald Trump posed an existential threat to the republic.
The self-professed resistance must be understood for what it is: a thinly veiled legal revolt. Our Constitution has built-in safety valves to remove an unfit president, whether through impeachment or through a declaration of incapacity. But the exercise of those powers was not assigned to the judiciary. Judges can call balls and strikes; they can’t throw the president out of the game. Fortunately, the Supreme Court has remained a voice of reason within the federal judiciary — a role that it must maintain even as President Trump continues to disrupt legal norms. This administration will come to an end sooner or later. But the precedents set during this period will linger far, far longer.