Is Donald Trump tired yet of all the losing? During the past week alone, federal judges across the country have rejected some of the most important and far-reaching of Trump’s initiatives—from his efforts to reshape the global economy with tariffs and mobilize the military to act as police in American cities to his refusal to spend billions of dollars in congressionally appropriated funds. The President continues to cite nonexistent emergencies to justify his executive overreach and judges continue to call him out on it, issuing stern rebukes in the tradition of Judge Beryl Howell, who, during a case this spring about the firings of civil servants, observed that “an American President is not a king—not even an ‘elected’ one.”
I’m not sure that this week’s epic losing streak has received the attention it deserves, no doubt in part because America had other things to worry about, such as whether Trump was actually alive, despite all the internet rumors. It speaks to the present moment that the President is not only very much still with us but has already started fund-raising off the social-media frenzy surrounding his supposed death over Labor Day weekend. (“These rumors are just another desperate attack from the failing left who can’t stand that we’re WINNING and bigly!” the e-mail pitch that arrived in my inbox on Thursday morning said.) But what does it say about the state of things that disputing rumors of his death turns out to be a welcome distraction from underlying political realities for Trump?
In fact, the President enters the first fall of his second term in office with historically low approval ratings—the only President with worse marks at this point was Trump himself, in his first term—and a radically disruptive agenda whose fate has yet to be determined. I am well aware that this is not currently the dominant narrative about Trump 2.0, which, whether you like it or hate it, has generally been covered as a sweeping and surprisingly successful attack on pillars of the American establishment in and out of government. But, depending on how the next few months play out, it could be. And that’s the point: What’s clear from Trump’s first seven months back in power is that he has embarked on a breathtaking effort to reshape the American Presidency. What’s far from apparent yet is whether and to what extent he will succeed.
The latest string of defeats began last Friday, when the U.S. Court of Appeals for the Federal Circuit ruled that Trump’s so-called reciprocal tariffs imposing double-digit duties on key trading partners such as Canada, China, and the European Union were illegal. Over the holiday weekend, a federal district judge intervened to stop migrant children from being deported to Guatemala while some of them were already loaded on planes. On Tuesday, the U.S. Court of Appeals for the D.C. Circuit reinstated a Federal Trade Commissioner, saying Trump did not have the power that he claimed to fire her. Also that day, another federal judge ruled that, in sending hundreds of National Guard personnel to Los Angeles amid protests of Trump’s immigration crackdown, the President had violated a nineteenth-century law prohibiting the use of troops for domestic law-enforcement purposes. On Wednesday, yet another judge, in Boston, rejected billions of dollars in cuts to research funding for Harvard University, part of a broad war on liberal academia that Trump has made an unlikely centerpiece of his second term. And late on Wednesday night, a federal judge in Washington blocked billions of dollars in Trump-ordered cuts to foreign aid, saying that he was usurping Congress’s power of the purse in refusing to spend the money. This, I should add, is an incomplete list. If nothing else, it shows the extraordinary scope and scale of the battles that Trump has chosen to pursue—suggesting not so much a strategic view of the Presidency as an everything-everywhere-all-at-once vision of unchecked Presidential power.
Important caveats apply, of course, most notably that all these rebuffs to Trump can and may well be overturned on appeal; September’s losing streak could soon enough become next spring’s winning streak, especially with a Trumpified Supreme Court, which, in the first few months after Trump’s return, failed to check many of Trump’s initial excesses, almost certainly emboldening him to push further and faster in applying his favored constitutional theory, what one might call the “I can do anything I want to do” doctrine. Already this week, Trump has appealed the tariff ruling to the Supreme Court, asking for an expedited review in a case that will test not only the legality of his favorite economic tool but his broad assertions of emergency authority to override constitutional constraints. In the foreign-aid case, U.S. District Judge Amir Ali made clear that his word would hardly be the last on the matter, anticipating “definitive higher court guidance” given the “immense legal and practical importance” surrounding the question of whether a President can simply decide to flout Congress’s appropriations bills.
There’s also the matter of the damage that Trump has already wrought, even if he were to ultimately lose some or even all of these cases—unspent aid that could have saved lives, families divided by harsh immigration policies, companies whose supply chains have been broken or disrupted by a single man’s peremptory demands. So let’s stipulate that winning by losing might be a fine outcome as far as Trump is concerned; when smashing stuff is the goal, the more that’s smashed the better, whether the judges ultimately agree or not.
