I spoke to two lawyers on what they think about Trump (and his executive orders)
The legal battle is one of the last frontlines that can actually push Trump’s self-serving isolationism onto the battlefield.
“they can only focus on one thing at a time. …
All we have to do is flood the zone. Every day we hit them with three things. They’ll bite on one, and we’ll get all of our stuff done. Bang, bang, bang. These guys will never — will never be able to recover. But we’ve got to start with muzzle velocity.”
- Steve Bannon (Trump’s strategist at the beginning of his 1st term, in 2019)
As he tries to ‘rebuild’ America, Trump has, in his few weeks since being President, saturated the political, legal and media arenas with new executive orders ranging from ending birthright citizenship, pardoning Jan 6th rioters to ending federal Diversity, Equity and Inclusion (DEI) policies, tossing them out one after another in a slightly petulant way, like a baby with new toys whenever he sets his eyes on something more shiny. A slew of executive orders isn’t particularly unusual for a new president, especially one from an opposing party, except for the sheer amount coming out right now. It is a show of unprecedented bureaucratic mania, attempted symbolism of a strong man, a go-getter. As often happens with a torrent, whether it be of water or information or disease, people get bogged down under the weight of it all and the system buckles out of control.
One of the most dramatic executive orders; that all funding for federal loans and grants would be frozen, can be seen as a litmus test. Trump was, with a populist pomposity, testing the limits of the patience of the US populus, the limits of the constitution and of American Institutions. And he came up against a heady wall of indignation. He wants to be seen as doing something, even if that something is more detrimental than nothing. People noticed. The law noticed. The white house rescinded the executive order.
Yuval Noah Harari describes how as bureaucracies accumulate unbridled power, they become immune to their own mistakes. Instead of changing their stories to fit reality, they can change reality to fit their stories. The etymology of the word bureaucracy, which originated in France and combines bureau – 'desk' or 'office' – with the Greek word κράτος (kratos) – 'rule' or 'political power' speaks to Trump building his desk, his infrastructural ideology, and then expecting to squeeze reality into the drawers of it, subverting bureaucracy for personal gain. Unfortunately, as with the rules of science, reality will ooze and leach right back out of those drawers leaving a mess for others to clean up.
The real battle: Attention
The new administration has, therefore, mastered one of the greatest skills in modern society; harnessing attention. They have gone a step farther too and learnt how to exhaust that attention. People become more pliable, shifting the window of what is acceptable because oversaturation of information breeds overwhelm and distraction which lets executive orders slip through the net of media and civil society largely unscrutinised.
His strength lies more in us believing in his power than the power itself. For example, the mass exodus of experienced civil servants leaving because of Trump’s provocations and what he may do rather than anything that he has actually already done. We are mistaking someone flexing a muscle for someone actually using that muscle.
Therefore knowing when to descend into panic is praxis.
The (supposed) rigidity of the legal system makes it one of the few yardsticks left for us to measure the insanity of the situation we face and deem what’s worthy of our attention, so I decided to speak to two incredible lawyers; Hana Heineken and Betsy Apple.
On his first day in office and as one of his first acts as President, Trump declared a "national energy emergency", invoking the National Emergencies Act and pledging to support the domestic production of fossil fuels with the pithy and gleeful ‘drill, baby, drill’. Hana Heineken from Client Earth told me that ‘the National Emergencies Act grants the president broad authority to override existing regulations in times of crisis, but what we’re seeing from the Trump administration is not about addressing an actual emergency - it’s about giving polluting industries free rein to operate without accountability’. Oil production is at record highs. The United States has, each year for the past six years, produced more crude oil than any nation at any time ever (according to the EIA). Therefore there is no genuine shortage that justifies this move. If this were truly about energy security, why in his declaration defining what ‘energy’ is, did Trump leave out two renewable forms - wind and solar power - which comprise more than 14% of the country's electricity generation? Why is the administration simultaneously blocking renewable energy projects that could bring affordable, clean energy to American families?
Hana, who has served as the Senior Attorney at the Center for International Environmental Law and is now an attorney at ClientEarth, sits on the precipitous frontline of the legal challenges against unjust manipulation of the rule of law and yet seemed less jaded than I expected by this emergency declaration, faithful that courts, congress, and state governments are major barriers to this kind of overreach turning tangible. In his first term Trump’s administration lost dozens of lawsuits when attempting to roll back environmental regulations illegally. She believes we can expect a similar wave of legal challenges from states, environmental groups, and public interest organizations - many of which have a strong track record of success.
States cannot go below what is mandated at the federal level. In other words, just as David’s little well-aimed stone brought down the philistine and giant Goliath, federal states can wield their legal autonomy like that sling, striking down overreaching executive orders in the courts. That’s the saving grace against the haughty promises of the new administration. New York’s Climate Change Superfund Act (CCSA), for example, demonstrates how individual states can, and already are, resisting federal environmental rollbacks by asserting their own regulatory power on big polluters.
I decided to speak to Betsy Apple, someone who had first hand experience in this area (suing Trump that is). She was part of a group made up of the Open Society Justice Initiative and four international law professors who sued Trump after he invoked the National Emergencies Act on the 11th of June 2020. The ICC had decided to investigate war crimes committed in Afghanistan, included by the USA. He issued Executive Order 13,928, Blocking Property of Certain Persons Associated with the International Criminal Court, threatening severe sanctions, monetary penalties, and imprisonment on persons who assist the International Criminal Court (ICC).
Betsy’s response to Trump’s onslaught of orders was ‘bring it all now. Let the next two years be as bad as they can possibly be, because that is the only way Congress can be won at the midterms in two years, and is the only way people who voted for Trump can see the terrible mistakes they’ve made’.
This raises the central question: will the legal system and public outrage be enough?
Both Hana and Betsy think checks and challenges remain in place as long as they’re executed well. Yet perhaps this isn’t about what makes it past the law after all, but rather the gamesmanship, the trolling and toying and prodding of our attention. It is a president who abhors dissent testing the loyalty of those that surround him and trying to exhaust those that oppose him. Betsy says the administration is taking names of those challenging them and looking for ways to wreak vengeance. But they’re also taking something else, and that is the currency of our belief and our attention.
By withdrawing from global treaties, imposing steep tariffs and cutting foreign aid, Trump is alienating US allies and weakening his authority on the global stage. By slapping executive orders on the US, he is attempting to blow smoke and steam internally that is dissipating too quickly and letting people see right through it. We can only hope that those within the US see through the chaos coming at them at ‘muzzle velocity’, edging away from the international order and towards a new form of isolationist chaos before it’s too late. Naomi Klein said in The Shock Doctrine that “the parties with the most gain never show up on the battlefield.”
The legal battle is one of the last frontlines that can actually push Trump’s self-serving isolationism onto the battlefield because, ultimately, him sheltering behind the defence of his yes-men and the confusion and distraction they stir up is more insidious for all of us.