The Volokh Conspiracy
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My New UnPopulist Article on Synergies Between Litigation and Political Action in Resisting Trump
The article describes how the two can be mutually reinforcing, building on lessons from previous episodes in constitutional history.
Today, the UnPopulist published my article on synergies between litigation and political action in resisting Trump 2.0's multi-faceted assaults on the Constitution. I explain how the two tracks can be mutually reinforcing.
As I was writing the article, it occurred to me that—with my role in the tariff case—I am directly involved in implementing these ideas; we are, of necessity, litigating this case in both the court of law and the court of public opinion. That kind of direct involvement in the subject of my own writings is not an accustomed role for an academic, at least not for me. Whether it gives me greater insight, reduces my objectivity or some combination of both, is for readers to judge.
Here is an excerpt from the article:
The Trump administration has launched a multi-faceted assault on many aspects of our constitutional system, ranging from illegal deportations of immigrants to blocking legal migration by unconstitutionally declaring a state of "invasion," to usurpation of congressional authority over federal spending and tariffs. These efforts have, in turn, encountered resistance by means of both litigation and political mobilization. But there has been little consideration of how the two types of resistance to Trumpism relate to each other. There are often important synergies between litigation and political action. Each can bolster the other. Such synergies don't always happen—and there are situations where litigation might actually undermine political efforts. Still, activists and litigators can act in ways that maximize synergies, while mitigating potential downsides.
Throughout modern history, successful constitutional reform movements have generally combined litigation and political action, not relied exclusively on one or the other. That was true of the Civil Rights Movement, the women's rights movement, same-sex marriage, and movements to expand property rights and gun rights, among others. Litigation can bolster political action, and vice versa.
These dynamics are also evident in the early results of litigation against some of Trump's abuses of power, most notably in immigration and trade.
The rest of the article discusses how these synergies have played out over the last few months, and notes some potential lessons we can learn.
