I’m willing to go out on a limb here and say that the last time you were speeding down an interstate, you were not thinking, “Wow, I guess the law really doesn’t matter if I can speed with no consequences.” I’ll bet that if you did get pulled over, you never blamed “the law,” but probably “that cop” or your “bad luck.” For most of us, “the law” is never at the forefront of our minds as an abstract concept that “matters” or “doesn’t matter.”
Yet, conversations about “if the law matters” are certainly going on. It is easy to point to any random assortment of news headlines and see that this administration is challenging fundamental boundaries of legal principles.1 The fact that this administration is pushing these boundaries and not flat-out disregarding them was the subject of a piece by
last month. He gives a pretty convincing argument against this idea of legal “doomerism” by basically arguing that while, yes, there are some brazen attacks on the rule of law in America, there is plenty of evidence to show that the Trump Administration is actually paying close attention to what the legal limits are.With regard to the descriptive claim—that law isn’t shaping the Trump administration’s conduct—consider all of the (many) cases in which the Trump administration is (1) taking action that has been challenged on grounds of illegality; (2) losing in lower courts; (3) not appealing—or, at least, not seeking emergency relief while it appeals (so that the lower-court rulings are going into effect); and (4) complying with the adverse ruling(s).
Yes, there are several notorious examples of the government appearing to defy rulings of lower courts. But we now have enough data to say, with confidence, that these have been the exceptions that prove the rule. The Trump administration is complying with the overwhelming majority of adverse rulings it is receiving—something that we’d hardly expect if law doesn’t matter…
These are valid points, but I think lawyers, not surprisingly, tend to over-index how much effect laws have absent other factors. He goes on to say:
In the short term, though, the relevant point is less about the past or the future, but rather the reality of the present: This administration may take undue glee in testing legal limits and pushing legal boundaries; and it may also engage in plenty of behavior that is just affirmatively lawless. And even a lot of the stuff it’s doing that’s legal may still be indefensibly disruptive, destructive, and divisive on policy grounds, morality grounds, or both. But none of that is proof that law isn’t serving as a critical constraint. If anything, given how completely useless ordinary political constraints have been over the past seven months (<cough> Congress <cough>), law is perhaps even more important as a check on the current President than it has been for some time; it’s all we really have, at least until next November. Indeed, where would we be today without legal constraints and the district and circuit courts enforcing them?
Right now, law is undoubtedly the primary arena constraining the administration, but I don’t know if I would go so far as to say it is the critical constraint, nor the only one. The law matters right now because it is an expression of a system that still has quite a bit of legitimacy in America, and it is this legitimacy that is constraining the administration.
Law is authority, and authority, in a democracy, comes from the people. The people (you and me) generate the political force necessary to empower our representatives to exercise this authority. Law in a democracy is nothing more than words on a page without the legitimacy generated by the political force of the people.2
That is not an argument for laws that can be waived off because of an election result, even one that hands down an overwhelming mandate. A political mandate still must operate within the system to change the laws it doesn’t like. It is, however, an argument that politics is the force in a democracy that empowers law, and this was what truly matters, especially in times like these. Law matters. Law is relevant. Politics, however, is the crucial constraint.
I agree with most of Steve’s essay. Lower court rulings are frustrating this administration’s policy goals and, as Steve points out, the Supreme Court still has limits on what Presidential power should be—it just might be more extreme than some of us would like. Besides all this, just because people speed doesn’t mean that speed limits are irrelevant.
That said, I think “does law matter” is the wrong question to be asking. You end up with an answer like the one Steve articulated—a yes or no, followed by examples and counterexamples. This answer is circular and unhelpful, and somewhat ignores the reality for a lot of people on the ground.3
A better question to ask is “Why does it still matter?”
Project 2025 describes how “America is now divided between two opposing forces” and that “Conservatives—the Americanists in this battle—must fight for the soul of America, which is very much at stake.” If this is your view, that the conflict you are engaged in is existential, then why would you follow the law at all?
On levers of power
Back to that speeding ticket you were unlucky to get. Why did you stop? Was it because of a law written down on a page somewhere? Or was it the force behind the officer stopping you—the ability for them to give you harsher consequences, detain you, or use force against you? What if you got lucky and tapped your brakes in time to avoid getting clocked on the officer’s radar? Did you do it because of “the law” or did you do it for economic reasons: that fine and insurance rate hike?
People follow laws for all sorts of reasons: economic and physical incentives, morality, general societal norms. In international affairs, these various mechanisms are called “levers of power.” These levers are things you can pull to get someone else, or another country, to do what you want. Economics, politics, governing bodies, and the use of force are all levers of power, just like the cost of the ticket or the officer’s gun.
In a democracy, the greatest lever of power is political force.4 I think a strong reason why people stop when they get pulled over is that we have all agreed that there should be a limit on the maximum speed people should be allowed to drive. We vote for people to run a safe and efficient society, and part of that is ensuring we don’t cream each other on the way to work.
Politics as a lever of power is why civil disobedience works. Breaking segregation laws was illegal, but that strategy leveraged what turned out to be weak political force upholding those laws.
I think the most straightforward answer as to why this administration is following court orders is that they simply do not have the requisite levers of power to effect the change they want.
It is why they have to legitimize everything they are doing in courts and be strategic about what they ignore. I don’t think they really want to listen to the courts, JD Vance and other administration supporters have said as much, but they have to. If they had the ability to really pull that political force lever of power, things like this wouldn’t be happening:
“We believe in the federalist system; that’s states’ rights,” [Oklahoma Governor] Stitt, who chairs the National Governors Association, told The New York Times on Thursday. “Oklahomans would lose their mind if Pritzker in Illinois sent troops down to Oklahoma during the Biden administration.”
“As a federalist believer, one governor against another governor, I don’t think that’s the right way to approach this,” Stitt said. Stitt’s comments come just days after Democratic Govs. Gavin Newsom and JB Pritzker threatened to withdraw from the National Governors Association if it failed to speak out against Trump’s federalization of National Guard troops against the wishes of state officials. (The Oklahoman)
There are other levers out there also, civil-military relations is one—people actually have to follow your orders. The redistricting war is another indicator that the administration is lacking complete political power and control; why bother with redistricting if politics didn’t matter? Now, I’m perhaps cynical enough to connect military firings, redistricting, and the refusal to swear in an elected Congresswoman as ways to increase political leverage, but we aren’t quite there yet.
Strategic advantage
If you want to maximize the number of levers you can pull, you need to win high-level strategic battles, preferably ones that set you up for future success. One tried and true way happening right now is normalizing behavior. In the military, you often do this by staging exercises near your adversary. For example, if you plan to invade a country, regularly conducting exercises and patrols near your objective allows both your own forces and those of the enemy to become acclimated to a new status quo. Your adversary will eventually let their guard down as your behavior is no longer novel, and you increase your chances of a surprise.
It also shifts the window of acceptable behavior. If you’ve never had a bunch of militarized ICE agents standing around your neighborhood, this is very shocking at first. Eventually, however, it becomes the norm, and people will judge further escalation less dramatically than they would have if you had not taken these steps.
You also get to probe defenses and adapt accordingly. One reaction to increasing ICE deployments was the “ICE Agent Tracking” app, which was recently taken down by Apple and Google. (AP News). I’m not sure how effective this app was, but the fact that it was developed was probably a win for ICE in the long run. They can find who is reporting their locations, who is downloading it, and what software they are using to mask their identities. In fact, it was probably a counter-intelligence failure for ICE to take the app down.
You also get to build a narrative. If ICE deployments are trying to “protect” the country and a judge blocks you, now you have a narrative that shows how laws are a detriment to your mission to save the country. This narrative is already being trucked out. The administration is literally claiming that “left-wing terrorists” are “shielded by far-left Democrat judges, prosecutors and attorneys general.” Whether people buy it or not is a different story.
Finally, following the laws allows you to rewrite them in your favor, using lawfare as a way to gain legitimacy. If your opponents are a “the law matters crowd” and the Supreme Court says what you are doing is legal, well, then you have won a pretty striking victory precisely because you did follow the law.
Tactics
Aside from lacking sufficient political leverage and needing to set the stage strategically, I believe the administration is also complying with the law because there are tactical advantages to doing so.
The “flood the zone” strategy of rapid policy decisions, which may or may not be legal, and may or may not get struck down, exhausts the resources of your opponent. Even if a court deems what you are doing is illegal, the damage caused by these actions is often irreparable.
I was listening to some immigration lawyers the other day that were talking about how they had to let go a large percentage of their staff because they relied on government funding. It really doesn’t matter if that funding gets restored in a year, because it was an illegal cut. The reduction in workforce means fewer people to work immigration cases, and the people who are working them will be fatigued. Sure, the administration sought legal remedy in the form of staying an injunction, but that is hardly a constraint if the objective was to gut legal and social infrastructure serving immigrants.5
Where does the law matter?
If I stopped this essay now, I think you could rightly call the preceding 2,000 words a doomer screed, but I want to apply a couple of other lessons from international affairs. The one I think most people forget is that everyone has agency. In military parlance: the enemy always gets a vote. In a democracy, this translates to everyone having political force.
We are in a situation where the policy changer has the advantage; the administration has plenty of levers of power to pull on, they are, after all, a democratically elected administration with a trifecta. However, the narrative can belong to either side, and the administration can certainly overreach. The economic lever of power Trump pulled on so hard during the election seems to be diminishing quite quickly. And just as the administration can adapt to their opponents’ strategies and tactics, so can everyone else. The ICE app may have been a failure, but there seems to be a concerted effort of civil resistance happening in Chicago right now that is adapting and learning.
It also matters for the individual. I will backtrack a bit on my “politics is force” line and agree with Steve: Law is the only constraint the immigrant has in a court of law. The success of immigration lawyers is a matter of life and death for these folks, and there isn’t much politics can do for them in the immediate or on the individual level.
On rebuilding
I wrote this piece because I’m worried that people are going to take the wrong lessons away from these years. If you were born in 2000, you’re entire democratic political experience goes something like this: Trump-[Covid]-Biden-[inflation/war]-Trump. This is not a great track record for people who believe they should be governing themselves.
I’m worried that a lot of people don’t understand how much inherent political force they have as an innate and inalienable right, and if they do understand this, I’m worried they may come to the conclusion that democracy is not the right answer. There are plenty of people with money and power who think this system is overrated, and there are plenty of people without money and power who are, at best, extremely dissatisfied with democracy.6
Law is not a substitute for politics, nor is it a safe refuge for democracy. Democracy is the safe refuge for democracy, and the political force generated by the people within that democracy is the only thing that will allow self-governance to endure. In the right here and right now, the only thing we have is politics. Unless the political opponents of this administration engage with the electorate on issues the electorate cares about, nothing is going to change.
In the future, when there is an opportunity to rebuild, the law will matter immensely. (I highly recommend reading Executive Functions, they write a lot on reform). I think these lessons learned from the failures of checks and balances, the usefulness and structure of the administrative state, presidential war powers, both on and off our soil, congressional oversight, and so on, will all need reforming. We will need good lawyers to write these reforms into law—lawyers who understand that law in a democracy actually does serve as a critical constraint against tyranny. But, a reform movement is not built on laws, it is built on politics, and without politics, law isn’t much more than words on a page.
This administration’s tactics and penchant for pushing boundaries may be without successful precedent, but certainly not without precedent. Take, for example, Senator Ron Wyden and Representative Alexandria Ocasio-Cortez, both calling for the Biden administration to ignore court rulings or the Covid jawbonning. You can lament “both sidesism” all you want, and in some cases, there may be validity to that, but ignoring the rule of law is, recently, definitely a both sides problem; the side in charge right now is just much better at it.
If this sounds familiar, it is because I paraphrased one of my favorite passages from Starship Troopers. I highly recommend reading Starship Troopers (much different than the movie) for a pretty interesting commentary on democratic legitimacy and what it takes to defend it. (Bookshop.org, Amazon. Affiliate links)
Flip through this subreddit and watch some of the ICE videos in Chicago right now. I’d have a hard time explaining to the people getting body slammed by ICE agents that the law is serving as any type of constraint at all.
A law mentor of mine once told me that lawsuits aren’t won in the courtroom, but on the steps of the courthouse in front of the press.
There are endless examples of this. Some connections I had at USAID and USIP said that even when they were let back into the office after months of being locked out, they couldn’t really do their job. No one knew (or would tell them) where the funding was, and their connections in other countries had moved on. When you drag a Fed member into court, you prevent her from doing her job. It really doesn’t matter if the lawsuit is successful or not—the effect of disruption has already happened.
There is hopeful evidence out there that there is still faith in democratic ideals, if not necessarily the exact system we have in place.