Litigation Doesn't Lend Itself Well To the "Art Of The Deal" When The Judiciary Is The Real Opponent

The Trump Administration made a conscious decision to advance its Article II authority and challenge the Article III authority of Judges standing in the way.

Through his first term and now two months into his second term, President Trump has a well-established pattern of getting deals done. This is the core of who he is, and it has served him well in building Trump Inc. Not every deal ends up a winner, but your financial well-being is judged based on the sum total of all the deals.

That paradigm does not translate easily into the courtroom. But the litigating approach taken by the Trump Administration and the Department of Justice bears some of the hallmarks of “The Art of the Deal.”

The dozens of cases that have now been filed against Trump Administration policy changes as reflected in Executive Orders have produced a litigating posture that isn’t so much the Plaintiffs against the Administration — the posture adopted by the Trump Administration has been the Executive v. the Judcial branches.

In basic terms, the Trump Administration is changing policies in never-before-seen ways and at a never-before-seen pace. Shutting down agencies, firing Executive branch officers, terminating employees, shifting Department responsibilities, etc., — all of which is delivering a shock to the political establishment. The most significant the targets are within the Administrative State, the bureaucrats whom it employees, and the myriad of special interests who derive their financial benefits from its existence and operations.

While the lawsuits are nominally being brought by various groups with a stake in the continued vitality and growth of the Administrative State as it has been built since the New Deal, they are only ancillary players in the battles being fought in federal courthouses around the country.

The real battle is between the Trump Administration saying “This is what we are going to do” and activist federal judges appointed by the last two Democrat Presidents who are saying “I have the authority to stop you from doing that.”