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Judicial ‘resistance’ setting itself up

America, unfortunately, has long been suffering from a crisis of civics. Put simply, many Americans are woefully ignorant about the structure and features of their government. But every so often, an opportunity emerges to reteach some basics. The media’s predictable shrieks and howls of “constitutional crisis” notwithstanding, we are in the throes of a grand separation-of-powers standoff that will both serve as one such edifying civics lesson.

First: Enter the energetic executive.

In his frenetic opening weeks, President Donald Trump has channeled the spirit of The Federalist No. 70, in which Alexander Hamilton argued that only a unitary executive can govern with “decision, activity, secrecy, and despatch.” In starker, more modern terms, this newer Trumpian era has fully embraced two key principles associated with close MAGA allies: Steve Bannon’s “flood the zone” and Elon Musk’s “move fast and break things.” The crux is that people are easily distracted, often overwhelmed and frequently overcome by shiny-object syndrome. This is especially true in today’s 24/7 social media environment.

Those two mantras explain how we get these remarkable first few weeks — this more assertive, more dynamic MAGA machine. We see “move fast and break things” in such moves as the executive orders on birthright citizenship and rooting out both “diversity, equity and inclusion” and gender ideology from the federal government. We see it in the U.S. Agency for International Development wind-down, and we see it in the anticipated termination of the Department of Education. And we see “flood the zone” in the daily frenzy of executive orders. Indeed, White House Staff Secretary Will Scharf’s daily physical handing of new executive orders to Trump to sign has emerged as an unlikely cable TV fixture.

And now: Enter the judicial “resistance.”

This is a familiar phenomenon. Black-robed Trump nemeses emerged as a menacing force during the first Trump administration. As then-Vice President Mike Pence noted in a May 2019 speech, the first Trump administration “faced more nationwide injunctions than the first 40 American presidents combined.”

That same month, then-Attorney General William Barr spoke to the American Law Institute, decrying nationwide injunctions, which he said “depart from history and tradition, violate constitutional principles, and impede sound judicial administration.” (By the end of that first term, Trump policies had been halted by a whopping 64 nationwide injunctions.) Of all the forces arrayed against Trump the first time around, it is possible that none was able to gum up the works against the administration quite as much as the judicial “resistance.

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