The Legal Resistance

By Blackman, Josh | Faulkner Law Review, Fall 2017 | Go to article overview

The Legal Resistance


Blackman, Josh, Faulkner Law Review


I. INTRODUCTION

It is my pleasure to speak at the Faulkner Law Review's symposium on the role of the Executive in the Anglo-American Legal Tradition. (1) No doubt, this topic was selected well in advance of the 2016 presidential election. Had Hillary Clinton been chosen, as most people assumed she would, I would likely be talking about the principles of administrative law, or deference to executive-branch agencies. But this did not happen. Instead, over the past eight months--and yes, it has been only eight months--President Donald J. Trump has rocked our legal order, setting up frequent and bitter clashes with Congress, the states, the judiciary, and the people.

At the outset, I should note that I oppose much of President Trump's agenda as a matter of policy. I disagree with many of his views on immigration, economics, national security, civil rights, shall we say "decorum," and other areas. Before the election, I joined a prominent letter of law professors who opposed Trump's election (2)--a decision that has not inured to my personal benefit. But with my cards on the table, I remain in the somewhat lonely minority of law professors who find that many--not all--of Trump's actions are supported by his constitutional and statutory authority. These are matters I have written about at great length elsewhere.

My remarks today will focus on the so-called "legal resistance" to the presidency of Donald J. Trump in the context of the travel ban.

II. THE BIRTH OF THE LEGAL RESISTANCE

During the summer and fall of 2016, by all accounts, it seemed that a President Hillary Clinton and a Democraticcontrolled Senate would confirm a Justice who was more liberal than Justice Scalia. Had Justice Scalia been replaced by Judge Merrick Garland, or perhaps someone even further to the left, on the most pressing issues, the conservative wing of the Court would have been unable to muster four votes for certiorari, five votes for a stay, or five votes for a majority opinion. The future looked bleak. However, as election night wound to a close, and Hillary Clinton eventually conceded, those fears and hopes quickly reversed. For conservatives, a once unthinkable victory salvaged their legal movement--and it may have done more. For progressives, defeat was snatched from the jaws of victory. Soon, a broad movement to "resist" the new President formed. A subspecies of this movement would focus on the courts.

On January 21, 2017, the day after the inauguration, progressive lawyers convened at the Rise Above conference, hosted at the Mayflower Hotel in Washington, D.C. The mission: how to thwart the Trump administration in the courts. (3) Jamie Raskin, a former constitutional law professor who was elected to Congress, called on the group to coordinate a "new movement" and to "plan legal resistance to the incoming Trump administration and Republican-controlled Congress." (4) I don't know that Raskin invented the term "legal resistance," but this movement would not have to wait long to make its mark.

President Trump's January 27 Executive Order on immigration sent Shockwaves throughout our legal order. (5) For 90 days, certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen--deemed "detrimental" to American interests--would be denied entry. (6) For 120 days, the Refugee Admissions Program would be suspended. Syrian refugees in particular would be denied entry indefinitely.

On Monday, January 30, Washington Attorney General Bob Ferguson sought a temporary restraining order to halt the policy nationwide. (7) Ferguson and Noah Purcell, the state Solicitor General had planned this challenge well before the Executive Order was even signed. (8) According to a report in the Wall Street Journal, Purcell's office "raced to get a complaint filed by that Monday." (9) Ferguson recounted, "We were having internal conversations about a potential action by the president along those lines. …

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