Keep calm and court challenge on

The main antidote to Trump's poisonous executive orders and abuses of power is to challenge them in court. Those challenges are coming, and many will succeed. Here's how they work and how we can help.

It has not even been a full week of the new administration, and it already feels like a decade — but we have to resist that feeling, resist the exhaustion, resist being overwhelmed by the noise, and be confident that our counterpunches are coming.

We are currently in the “shock and awe” part of the plan mapped out in Project 2025. This barrage of executive orders and other actions are meant to confuse and to disorient us, to make us feel small and helpless, to cow us into submission.

Don’t let them do that to you.

What I’d recommend instead is to remain as cool and collected as possible, watching all of these attempts to project autocratic power, and looking for signs of overreach, of sloppiness, of poor execution, of desperation, of hubris.

First, by trying to look like a strongman, Trump actually outs himself as weak: he is delivering these policies as executive orders precisely because he would have difficulty getting them passed in Congress, as they are too extreme, and Republicans’ majorities are too narrow and internally fractious.

Those who can pass legislation, do. Those who can’t, draft executive orders.

Second, speaking of Congress, look for those members on the Hill who are willing to sound notes of discontent or hesitation with Trump’s actions. It won’t happen all the time, or sometimes it will happen but will get walked back under pressure. But it will happen, and we must exploit those cracks in his coalition.

The latest example: Chuck Grassley, Republican senator from Iowa, stating that Trump’s attempt to fire 17 inspectors general from a wide array of government departments was illegal, because it lacked the legally required 30-day notice to Congress along with good cause for the terminations. Grassley is right.¹ And it opens the door for possible pushback from Congress — you know, actually doing the whole check-and-balance thing that they’re supposed to do under the Constitution. Plus it bolsters the court challenges that are potentially coming to stop or to slow the terminations.

Third — yes, the court challenges. I’ve alluded to these multiple times before now, so let’s go deeper and unpack how they will work.

By and large, these challenges will be brought (a) on either administrative or constitutional grounds, (b) either by pro-democracy legal advocacy organizations representing various plaintiffs, or by states or cities whose citizens are affected, (c) seeking an initial court order to stop the executive action, followed by a longer set of court proceedings and appeals.

There are a variety of legal claims that can be brought against a lawless executive action, but two of the biggest categories are administrative law and constitutional law. The administrative claims say this was against the rules, as you can’t just govern by presidential whim. The constitutional claims say my constitutional rights are being violated, so the unconstitutional action must be stopped.

The administrative claims will mostly center on the Administrative Procedure Act (APA), which empowers a court to strike down executive actions that are arbitrary and capricious, exceed legal authority, constitute an abuse of power, etc.; in other words, if the executive action does not have a plausible policy-based rationale, or if it goes beyond the limits of executive authority (like, say, doing something by executive order that in fact requires legislation and thus congressional approval), it must be rejected.

The constitutional claims will cover a broad array of provisions — everything from First Amendment free speech claims, to Fourth Amendment claims regarding proper searches and seizures, to Fifth Amendment claims regarding detention without due process of law, to the battles that will now arise around the Fourteenth Amendment and Trump’s attempt to purge the birthright citizenship clause and excise it from the plain text of the Constitution (more on that soon).

In either situation, the first prerequisite for a court challenge is standing. The plaintiff must have standing to sue, or the case must be dismissed. Standing requires what the law calls an “injury in fact” — which must be “concrete and particularized” (i.e. a particular harm is in fact coming to the plaintiff, rather than the plaintiff just not liking what’s happening). And it must be “actual or imminent” rather than “conjectural” or “hypothetical” (i.e. the plaintiff is either already suffering the injury or is about to, rather than maybe suffering it someday, eventually, if such-and-such occurs).

Moreover, many executive orders are just the president calling upon a federal agency to do something — rather than the executive official or agency actually taking the action.

So we should not be surprised or alarmed that there have not been more court challenges to Trump’s executive orders, quite yet. Those challenges are absolutely being prepared, right now — but they will not be filed until the various plaintiffs have standing.

Washington State AG Nick Brown, who led the first successful effort to get a court order stopping one of Trump’s executive orders.

The first challenge to a Trump executive order shows how all this works in practice. Trump’s executive order purporting to redefine birthright citizenship had an immediate legal impact on any child that was born in the United States and did not meet the new exclusionary criteria (basically, requiring that a child’s parents be citizens or permanent residents, in clear circumvention of the 14th Amendment).

Washington State’s Attorney General, Nick Brown, sued the federal government with three other states² and won a temporary restraining order (TRO) halting the executive order — because, as the court ruled, births occur all the time, and those newborn babies were being injured by having their legal status redefined. So there were injured parties among the People of the State of Washington, and they successfully sued via their attorney general.

The TRO stops the birthright citizenship order for now, and it shows that the court is likely to rule that the order is unconstitutional — part of the analysis for a TRO or a preliminary injunction is to show “likelihood of success on the merits,” basically the court giving a spoiler on how it views the case.³ That deeper analysis will take time. At some point the court will make a final ruling. And then there will be appeals — to the Ninth Circuit, then possibly to a larger panel of Ninth Circuit judges, and then likely to the U.S. Supreme Court.

This process may take years to unfold. And yes, there is certainly a possibility that SCOTUS will ultimately rule in favor of the administration and gut the birthright citizenship clause (and we will discuss that in more detail soon), but for right now we should take at least some lukewarm comfort in the initial victory and the overall soundness of the strategic blueprint here.

It is certainly not perfect, and the structure may not hold. But without majorities in Congress, our best positions from which to fight — right now, before the midterms — are in the courts and in the states. And we now get to take advantage of what Trump managed to do to his various prosecutions: use the power of delay. Just as Trump delayed his legal cases until he could squeak out a political victory, pro-democracy forces can do the same, delaying everything as much as possible until after 2026 or beyond.

And what can we do in the meantime? The other battleground right now is that of public opinion. We must shine the brightest of lights on all the revolting and illegal excesses of the administration. We must be loud and direct, telling the stories of the people being hurt by these evil actions, with as much emotional resonance as possible. We must make our voices heard, online, among our friends and families and neighbors and colleagues, at town halls, and among our elected officials — and we must support these pro-democracy legal efforts however we can (more on that soon).⁴ There are moderate and independent voters who can and will be swayed, but only if we sway them.

1. Not a sentence I write often.

2. A second group of 19 states filed a parallel case in federal court in Massachusetts. The tactic here is to get multiple cases going to increase the odds that one of the courts will move speedily.

3. And here it is even more clear how the court will rule, as Judge John Coughenour (a Reagan appointee), called Trump’s order “blatantly unconstitutional” and noted: “I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear.” To put it lightly, it would appear to be likely that Judge Coughenour will be issuing a preliminary injunction to replace the TRO (the TRO is meant to be just that, temporary, lasting a few weeks or months; the preliminary injunction is meant to be more durable, lasting for the entire pendency of the case).

4. We also should be rewarding those elected officials who exhibit boldness and effectiveness in this time of peril — and we should be discarding those elected officials who show weakness or wariness.