It does matter. Defending the rule of law in the Trump era is essential.

Trump cannot ignore constitutional limits on his power — or any court order enforcing those limits. We must keep saying so. Also, for paid subscribers: Closing my tabs.

Is it naive to defend the rule of law?

No. It is difficult, to be sure. But there is a difference between naivety and being willing to fight when it’s tough to do so.

I think about this a lot these days, because whenever I discuss court rulings against the Trump administration, someone inevitably responds, “Well, it doesn’t matter. They don’t follow court orders.”

I have responded to this in fits and starts for months now, but I want to lay it all out now as clearly and succinctly as I can in one place.

The bottom line: It does matter. In fact, it is essential.

To understand my position, you need to start by holding two seemingly conflicting realities in your head: First, President Donald Trump doesn’t care for — and would rather not adhere to — the rule of law. Second, the rule of law is bigger than him — bigger than any one person.

Because of those two realities, and for now, his desire to toss aside the rule of law cannot succeed.

But, that is only so for so long as the rule of law remains bigger than him.

That is why my response to those who say court orders don’t matter is that such thinking is dangerous. It is dangerous because to allow for that possibility is to allow his tyranny to find a home — to allow him to become bigger than the law.

That is wrong.

Saying that it is wrong does not mean that Trump won’t try. To the contrary, I believe it is essential that we hold fast to this position in part because we know that Trump will try to defeat the rule of law.

This is also why I believe it is not naive to hold my position.

It is only with full awareness of the dangers that Trump poses to our nation that that it becomes clear how essential it is to refuse to give even an inch in Trump’s constant effort to undermine the governmental — and nongovernmental — institutions that are not run by him.

Trump is not only seeking to undermine the judicial branch. He is attacking lawyers, stomping over the legislative branch, seeking to diminish the strength of academia, threatening the freedom of the press, and working to dismantle union power — just to name a few areas where Trump has targeted institutions that could hold him back.

But, and as I’ve discussed, litigating against and investigating the Trump administration’s actions is essential — because pushing back works. It works because Trump saying something does not make it so.

What’s more, we have seen how wrong it is to think otherwise over the past 111 days.

We’ve seen it with the capitulating law firms.

While the law firms that have capitulated to Trump are losing lawyers and clients, the law firms that are fighting back are winning in court. As Judge Beryl Howell wrote, “If the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.“

We’ve also seen how powerful fighting back can be — both for the message it sends and because it can work.

On Saturday, Tufts University graduate student Rümeysa Öztürk returned to Massachusetts after more than six weeks in U.S. Immigration and Customs Enforcement detention following a federal judge’s Friday order that she be released while her case proceeds because, among other factors, she had raised a “very substantial claim” that the Trump administration had violated her First Amendment rights and a “substantial” claim that they violated her due process rights.

As The Tufts Daily reported of her first comments back in Massachusetts, “I have faith in the American system of justice. This has been [a] very difficult time for me, for my community at Tufts, at Turkey. But I am so grateful for all the support, kindness and care.” What is more powerful pushback to Trump’s will for lawlessness than a person wrongfully detained for more than six weeks telling the world that he is wrong — that the justice system can hold.

That of course does not mean the justice system is infallible. To the contrary, I often point out the many ethical and legal failings of the Supreme Court. In another timeline, my coverage here at Law Dork would likely be substantially focused on the many failings of the justice system — particularly the criminal justice and immigration systems. As it is, I still do devote time and space to those important issues. But, in this moment, Trump’s attacks are central.

Look at the past three days.

On Friday, the Trump administration arrested Newark, New Jersey’s mayor as part of their anti-immigration attack, while Stephen Miller suggested incorrectly that habeas corpus is a “privilege” that that administration can suspend — and that they are considering doing so.

On Saturday, the White House fired Register of Copyrights Shira Perlmutter, the Washington Post confirmed after CBS News initially reported the action, after the registrar issued a report critical of AI — and two days after Trump fired Carla Hayden, who was the librarian of Congress and the person who had appointed Perlmutter.

And, on Sunday, ABC News reported that Trump was set to accept a “gift” of a jet that would become his Air Force One from Qatar despite constitutional and statutory restrictions that would clearly prohibit such an action.

Trump is the president. As such, he has extensive powers. But, at the same time, there are constitutional limits on those powers, as well as statutory limits, ethical limits and norms under which a president is to operate.

Challenging a president’s actions when they go too far — invoking those limits and expecting him to follow court orders applying them — is a key way the nation and people within it push back against a would-be authoritarian. As I’ve written previously, “Every single moment, statement, or action that slows down the backslide into authoritarianism is a good one, and we should look for and document them.”

If, where, and when he or people who work for him choose not to follow court orders, then the system has a response to that next level of lawlessness. We are seeing that play out already in front of Chief Judge James Boasberg in D.C. regarding the Alien Enemies Act and Judge Paula Xinis in Maryland regarding Kilmar Abrego Garcia. While their efforts are moving slower than many of us want, we do want judges to give careful consideration to these issues when they arise given the potentially momentous confrontation ahead of them.

We have a constitutional system, and Trump took an oath to uphold it. Yes, he is going to keep taking actions that disregard the limits placed upon him. But it is not up to him to decide that he can do so. It is up to the other branches; other institutions; and — ultimately — all of us whether we allow it.

Trump cannot ignore constitutional limits on his power — or any court order enforcing those limits. We must keep saying so — because it is so.

It is not naive to say that. It is, rather, the only responsible position to take.

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Law Dork in the news

This week, I got to talk with Micah Loewinger for NPR’s On the Media about the past 100+ days of tracking 100+ lawsuits against the new Trump administration.

Here is the summary:

Check it out!

Also, a note: As we approach June, I will be doing events — in conjunction with both the end of the Supreme Court’s term and LGBTQ Pride Month (because, of course, the busiest month in both areas has to be the same month) — so, if you are interested in having me talk to your group, reach out soon before my schedule fills up.

And, if you are interested in having me on your TV or radio show or podcast, and it can be planned ahead of time, reach out to discuss that, too (although some of that always is going to be a last-minute development).

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Closing my tabs

This Sunday, these are the tabs I am closing: