Potential Sites of Resistance to the Second Trump Administration

Some years ago, I heard an interview with Anne Washburn, who wrote the book for Mr. Burns, a Post-Electric Play, in which actors in a post-apocalyptic world retain few cultural artifacts of the pre-apocalyptic world but manage to reconstruct and perform an episode of The Simpsons. Over time, the play within the play evolves and moves further and further away from the original Simpsons episode. I didn't get to see Mr. Burns, a Post-Electric Play, but I recall from the interview that Washburn said, perhaps reciting a line one of her character speaks in the play, something like this: The one good thing about living in a post-apocalyptic hellscape is you don't need to worry that there could be an apocalypse.

It's a great and memorable line, but it isn't really true. Bad as things are, they can always get worse. Bears can invade the cave in which you're living. You can run out of salvaged fuel for your generators. Raiders from the neighboring valley can attack you. Some post-apocalyptic hellscapes are worse than others. Or more to the present moment and to put the point in the terms that Professor Buchanan did yesterday and in earlier columns here on DoL, it matters how bad a second Trump administration is, and it also matters how it will be bad.

Some of the bad we know for certain. Trump will be a disaster for the environment and whatever already-dimming hope we had for curbing climate change. He will further deregulate and promote fossil fuels. He will give free rein to the incredibly energy-intensive crypto-currency and artificial intelligence industries. He will roll back, delay, or cancel investments in the electric-vehicle charging network (although that effort will be complicated by his bromance with Elon Musk, whose role at Tesla will mean that some capacity will likely continue to be built out, albeit in ways that advantage Tesla over rival companies).

Trump will also certainly attempt to implement his signature campaign promises of mass deportation and massive tariffs. Whether and to what extent he carries out those promises will depend on the ability and willingness of two institutions to push back. It's clear that Republicans will control the Senate, but as I write on Wednesday morning, House control is uncertain. Should Democrats win control of the House, they will have the ability to deny Trump the level of funding he would need for a program of mass deportation. Life will undoubtedly get much worse for nearly all undocumented immigrants even without such funding, but again, there is a question of how much worse.

Meanwhile, Congress has already delegated considerable authority to the president to impose tariffs, but that authority is not unlimited. It is conceivable that one or more legal challenges to particular tariffs could succeed. (Here's a useful explainer.)

Can we count on the House--if controlled by Democrats--and the courts to push back against some of the foreseeable excesses of the second Trump administration? The answer with respect to the House is probably yes, although much would depend on margins and the particulars. Certainly a Speaker Jeffries would be much less accommodating than Speaker Johnson.

What about the courts? During the first Trump administration, the Roberts Court occasionally invalidated Trump's programs for failing to follow proper procedures. The Court rejected the attempts to rescind DACA and to add a citizenship question to the census. Now that agencies are no longer due Chevron deference, it's conceivable that further sloppy or overly aggressive assertions of delegated power would be invalidated.

However, the Supreme Court in Trump's first Term was hardly a major site of resistance. It infamously upheld an ostensibly sanitized version of the Muslim Travel Ban by ignoring the reality of the policy. And of course in just the last year, the Court granted Trump broad immunity to prosecution and dismissed a credible effort to disqualify him from office as an insurrectionist. The Supreme Court is a they, not an it, so whether it provides resistance to the worst excesses of the coming second act of the Trump White House ultimately depends on whether two of the six Republican appointees provide such resistance.

That's another way of acknowledging m. Gesson's warning that our institutions won't save us. They are right about that, of course, but some institutions may be useful as sites for resistance if the people who are in those institutions take action. The impulse of greedy cowards like Jeff Bezos to obey in advance is a reminder that many people will gladly kiss the would-be tyrant's ring, but not everyone is so craven.

I have mentioned the House of Representatives and the Supreme Court as potential sites of resistance. The states are another. Expect blue-state attorneys general to file multiple lawsuits challenging Trump policies, and also expect the Republicans who have eagerly deployed such tactics to derail policies of Democratic administrations to suddenly claim that these cases are illegitimate.

In addition, blue states can continue to pursue progressive policies regardless of a change in administration. Voters in New York approved a sweeping equal rights amendment. Fifty-seven percent of Florida voters--who otherwise elected Republicans--approved an abortion rights measure. That was insufficient to amend the state constitution, given the sixty percent threshold, but it shows that at the state level, abortion rights are popular.

With respect to abortion in particular, there remains a risk that the Trump administration will promote and the Supreme Court will accept the bogus argument that the Comstock Act already bans abortion nationwide, which would pre-empt state efforts. Whether Trump's Justice Department pursues such a course depends in part on what motivates Trump in a second term. He has said that he wouldn't sign a national abortion ban and doesn't support using the Comstock Act as a means of concocting one. However, Trump lies all of the time, and while he has no actual convictions about abortion (or almost anything else other than racism and tariffs), he is likely to act with respect to abortion based on his own calculations about what best serves his ego and his personal wealth.

In any event, no one should count on Trump's at-best mercurial dispositions. We are sliding into authoritarianism, but there remain handholds to grasp to prevent a slide to the very bottom of the pit and preserve the hope of an ascent out of the pit some day. The existence of those handholds does not ensure their use. That is up to us.