Lawfare for Me but not for Thee

Conservatives have been complaining loudly about rulings by federal district court judges that are obstructing the Trump administration’s objectives. However, during the Clinton, Obama, and Biden years, they happily used the same tactics to gum up the operations of those administrations. CNN captures some of the irony:

‘President Donald Trump and top allies who have questioned the constitutionality of recent court orders blocking the administration’s agenda touted similar rulings by federal courts as “great news” and “brilliant” when they paused President Joe Biden’s policies.

‘When a federal judge in Texas halted a Biden administration pause on deportations six days after Trump was inaugurated, presidential aide Stephen Miller took to social media to describe the temporary restraining order as “great news.” When a judge in Louisiana blocked Biden aides from asking social media platforms to remove content, Trump called the decision “amazing.”

‘“Just last week, in a historic ruling, a brilliant federal judge ordered the Biden administration to cease and desist from their illegal and unconstitutional censorship in collusion with social media,” Trump told an audience in Florida in 2023. (The Supreme Court months later would decide in Biden’s favor.)

‘… Republicans have increasingly complained about outside groups choosing courts they believe will rule in their favor – a practice known as judge shopping. Democrats loudly protested that same practice during the Biden and Obama administrations, when Republican-aligned groups frequently sued in Texas or Louisiana where they could bring appeals to the especially conservative 5th Circuit.

‘… Sebastian Gorka, who worked in Trump’s first White House and who the president has named senior director for counterterrorism this time around, reposted a message on X last month describing US District Judge Paul Engelmayer, an Obama appointee, as a “rogue judge.” But he celebrated a nationwide injunction against Biden’s vaccine mandate for federal workers in 2021 in a social media repost, suggesting that a “Federal Judge” had stepped in to block Biden’s “abuse of power.”

‘Trump himself repeatedly touted or commented on temporary restraining orders and preliminary injunctions that blocked the Biden administration’s policies.

‘When a federal judge in Louisiana in 2022 issued a preliminary injunction halting the administration from ending the Title 42 program, which allowed the administration to speed the removal of certain migrants, Trump reposted a supporter on his Truth Social platform thanking U.S. District Judge Robert Summerhays for the ruling. Trump appointed Summerhays to the bench during his first term’ (John Fritze, ‘Trump and allies celebrated court orders against Biden they now claim are ‘tyrannical’,’ cnn.com).

The Revivalists on the Right have their answer for the charge of inconsistency:

‘White House spokesperson Harrison Fields dismissed the comparison between the Biden-era orders and those issued in the early weeks of the Trump administration.

‘“It’s simple: Biden abused his executive power to implement policies not within the scope of his presidential powers, while President Trump is appropriately using his executive authority to implement his America First agenda,” Fields told CNN. “These court orders from left-wing judges are a continuation of judicial weaponization that Americans voted against at the ballot box on November 5”’ (Ibid.).

Therein lies the problem: a fundamental disagreement amongst the peoples of the States over the nature of government and the legitimate ends it is meant to accomplish. Thomas Sowell in his book A Conflict of Visions located the source of the disagreement in two opposing views of human nature – one utopian and unconstrained, leading to a centralized, all-powerful government, the other experiential/pragmatic and constrained, tending toward a smaller, decentralized, weaker government. An older version of this dichotomy is the Alexander Hamilton (the U.S. as a centralized empire) and Thomas Jefferson (the U.S. as a decentralized confederation) difference of views.

But even these are oversimplifications of the problem. Many people – whether on talk radio or in academia or in government or etc. – speak of the United States as though we were one people with one common culture. This is a false notion. There are several different cultures spread out over the States, and, owing to the dominant ethnic groups that settled them, they all have their particular ways of viewing the world, man, government, etc. The Scandinavian-Germanic Great Plains States are not the same as Dixie with her folkways formed largely in southwestern England, the Celtic lands (Ireland, Scotland, Wales), and sub-Saharan Africa, with some Spanish and French mixed in as well. New England and their offspring in Utah are from the coastal counties of southeastern England. And so forth and so on.

Now then, folks on the Right have been rightly reiterating the point that transgenderism is a denial of reality, that no matter how much a man may pretend he is a woman (or vice versa), it doesn’t alter the fact that he is really a man. The same argument may be applied to the United States: No matter how deeply one believes that the States are all one homogenous people, it does not change the underlying reality that we are in truth several peoples. There are plenty of essays and books about this; one of the most recent we have read is Grady McWhiney’s Cracker Culture: Celtic Ways in the Old South.

Denying this reality is leading us down a dangerous road, one that could end in another terrible war if we aren’t careful. Rod Dreher, the far-seeing Louisiana writer living in Hungary, has been warning his readers that the political climate in the United States today resemble the heated ideological turmoil of Spain prior to the civil war there (1936-9). The documentary video about the prelude to the Spanish Civil War that he included recently at the end of one of his essays is worth a look by all serious-minded political observers. As he put it in the essay:

‘Last night, I was talking with a retired military officer. He was telling me how happy he is that Trump is righting so many woke wrongs. Yet, he said, “This is all happening so fast and so powerfully that I can’t help wondering what’s going to happen when the other side gets back into power. Are they going to come at us like this?”

‘I invite you to watch this first episode of the Granada TV documentary from the 1980s, about the Spanish Civil War. That dynamic is exactly what happened in Spain prior to the outbreak of fighting’ (‘I’d Salute Trump Too,’ roddreher.substack.com).

Despite claims to the contrary, Trump’s victory in 2024 wasn’t a landslide. Yes, he won a lot of States and counties/parishes, but the overall margins in many of those States was very narrow. The current configuration of the federal House and Senate confirm the large ideological divide that persists across the United States. If we continue down the road of insisting on the ‘one people’ fallacy and, following from that, use the power of the federal government to force an ideology (whether leftist or rightist) on all the States, we’re going to find ourselves in the middle of another violent clash at some point. That is lesson of the War between the States of 1861-5, the lesson of the Spanish Civil War, the French Revolution, etc.

However, if we are going to live in Realville, to use Rush Limbaugh’s words, we will notice that there are other, better, options: radical decentralization of the powers now held in DC as well as a separation of the States into more culturally coherent federations. The first constitution of the States after their secession from the British Empire, the Articles of Confederation, is a good model of decentralized governance. It had some defects, but it also protected the States from what has come to be under the current constitution: consolidation into a centralized empire that is ‘aggressive abroad and despotic at home,’ to quote the perceptive Robert E. Lee’s letter to Lord Acton (15 Dec 1866, leefamilyarchive.org).

But there is some hope in this regard, as even Left-leaning States like California are speaking about the virtues of federalism/decentralization/States’ rights:

‘The governor of California for example, upon hearing of Trump’s success, very quickly announced on social media (on X) that “California is ready to fight”, and federalism, as he added, “is the cornerstone of our democracy. It’s the United STATES of America”. Unbelievable! Paradoxically, one must admit that there is something satisfying in observing how the Left that governs or dominates in some states, in trying to defend itself against the administration of Donald Trump, reaches for the instruments of resistance to federal power that it has hated so far and so much’ (Karol Mazur, ‘Progressive States’ Rights,’ abbevilleinstitute.org).

The Trump era won’t last forever; leftist Democrats will assume the powers of the federal government at some point in the future. The peoples of the States, if they indeed remain together in one federation, ought to retool their coordinating government in DC such that changes at the federal level are not viewed as existential dangers to their well-being that necessitate all-out legal warfare in the judiciary – or worse. Allow each State and culture to largely direct their own affairs; it is the only way peaceful relations between them will be established and maintained.