How we will fight back, Part 1

Three critical strategies for delaying, deterring, and defeating the Trump agenda -- and how we can begin acting on those strategies today, right now.

Two weeks. It has only been two weeks since Election Day, and I imagine I am not alone in feeling like I have aged considerably more than two weeks in that time. I am also sure that you are not alone if you have felt anguished, furious, reeling, at a loss for words, unsure what we can possibly do that would change anything, and perhaps above all, absolutely exhausted from having to mount a seemingly endless fight against this metastasizing madness of fascism, fraud, and corruption.

And yet fight it we must. They are banking on us to give up at some point. Trump’s strategy for attack is to barrage the media and opposition with so many aggressive moves, so many provocations, so many publicity stunts, that it seizes all the available oxygen for news and information and monopolizes the narrative. And Trump’s strategy for co-opting weaker players in politics is to use that monopolization of the narrative — and the threat of having that publicity machine turned against them — that they fall in line rather than fight him.

If we do not mount our own counteroffensive, trumpet our own narrative, and realize and deploy our own power, then they will win the battles to come — and we may lose our ability to keep up the fight at all.

Preparing the strategy to fight fascism, 1941. Needless to say, our team today will be just a tad more diverse, though if someone wants to design uniforms, I won’t say no.

Yet it is one thing to say that we need to fight. It is another thing entirely to lay out the roadmap for how we fight — and exactly where, and by what means.

That effort begins today.

Let’s start with three macro strategies that will both defend the system and commence the counteroffensive that we so badly need. We’ll begin with Part 1 today, and Part 2 tomorrow.

1 - Litigation: every illegal action of the administration must be challenged in court, either slowing or stopping them, allowing us to limit the damage. Yes, we have already begun calling out the impending illegalities of the incoming administration — but we will ultimately need to do much more than that. We need to take legal action to halt or at least delay the worst excesses, and thankfully there are tools at our disposal to accomplish this, if we would only recognize them and use them assertively.

The most important weapon we possess here is something we all need to learn about and be ready to rally behind: the Administrative Procedure Act (APA). It is the most critical federal law you’ve probably never heard of — because it regulates how federal agencies make decisions and how those decisions can be challenged. For one thing (at 5 U.S.C. 706), it allows those affected by an agency decision to sue, claiming that the decision was:

arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law;

contrary to constitutional right, power, privilege, or immunity;

in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

without observance of procedure required by law; [or]

unsupported by substantial evidence

In other words (though at risk of oversimplification), the APA allows court challenges of federal actions that violate the rule of law. The executive branch cannot do whatever it wants for any random reason it feels like — or for a partisan political or ideological reason — and if it violates the APA, a federal court can stop the executive agency’s action. Moreover, the court can issue an injunction, halting the action, pending the full review of the case, and pending an appeal process.

So a single federal district court judge can stop an agency action — indeed, this is exactly what right-wing legal groups have done the past four years to stop President Biden’s student loan relief initiatives, to restrict access to mifepristone, and most recently, to halt Biden’s efforts to expand the pool of workers eligible for overtime pay. And indeed, this was how we stopped or slowed initiatives during the first Trump administration — saving the ACA, preserving the census, preventing the elimination of DACA, and slowing the Muslim ban, just to name a few examples.

Those court challenges can take years to resolve. So even if the Supreme Court ultimately rules for the Trump administration,¹ it may take two or three years or even longer for that process to play out. This allows us to do what Trump just did to the criminal justice system — delay, delay, delay, until you can win the next election.

How do we accomplish this? Pro-democracy organizations fought these battles the first time and are about to fight them again. Large law firms sometimes join these fights with free pro bono legal services, but not always, and not sufficiently; and there is always a risk that these firms will shy away from such fights for fear of alienating the administration or their large corporate clients.

We will need to help fight this fight, by supporting these legal battles — both with fundraising and also by amplifying these cases, shining a light on them, informing our friends and family members and allies and the larger Resistance on what these cases mean and why they’re so important.

We’ll return to this subject a great deal in the weeks, months, and years to come.

And in the meantime, we’ll cover the other two strategies tomorrow — including a new organizational effort to begin building these new structures immediately.

Until then, stay strong, stay on Twitter if you can — but if you can’t, I can definitely understand that, and you can find me daily at Bluesky, or right here on Notes on Substack.

1. And we should not necessarily believe that it will, at least not every time. John Roberts led the Court as it used the APA to strike down Trump’s efforts to corrupt the census and to kill DACA. I am deeply skeptical of SCOTUS — but I do think that on at least some of the legal battles to come, Roberts and Barrett could be two votes against what will undoubtedly be blatantly arbitrary and capricious actions by the administration, yielding some narrow 5-4 majority victories for the rule of law. And again, even if we lose at SCOTUS more often than we win, much of the goal of this strategy is to cause delays — giving us enough time to win the midterms in 2026 and the presidency in 2028.