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A Decade of Legal Warfare Has Warped America’s Future

If all our political disputes are destined to be settled by unelected judges, do the people even have a place in our democracy?

Nicholas Kamm/AFP/ Getty

Welcome to the Decade From Hell, our look back at an arbitrary 10-year period that began with a great outpouring of hope and ended in a cavalcade of despair.

It’s hard to keep track of all the lawsuits that have been filed against President Donald Trump and his administration over the past three years. In November alone, the president waged legal battles to keep his tax returns hidden, to block aides from testifying in his impeachment hearings, and to enforce his immigration policies. Some of these cases can be traced to Trump’s unique foibles, like his opaque finances and penchant for committing impeachable offenses. But others, particularly when policy is at stake, reflect a deeper shift in the American political process over the past decade.

The 2010s will be remembered as a decade when the courts overtook Congress as the primary arena for political debates and outcomes. With the legislative branch impotent and hollowed out, the executive branch—and the president who sits atop it—increasingly makes and carries out the policy decisions that shape American lives. The counterweight to this arrangement isn’t a coequal branch of government but unceasing litigation by the opposition party and its ideological allies. These changes did not overthrow the American constitutional order. But they have warped it in ways that may not be sustainable in the long run.

This is not how the decade looked like it would end when it began. Barack Obama entered office in 2009 with Democratic control of the House and a substantial majority in the Senate. Pennsylvania Senator Arlen Spector would later switch parties and hand Democrats a filibuster-proof majority in that chamber. The result was a wave of legislative activity: the repeal of Don’t Ask, Don’t Tell, the 2009 stimulus bill, the Dodd-Frank package of financial reforms, and more. Foremost among the Obama administration’s labors was the Affordable Care Act, which became his signature domestic policy achievement.

The ride proved to be short-lived. In 2010, Republicans won a special election for Ted Kennedy’s seat to break the Democrats’ supermajority in the Senate, then captured the House in that year’s midterms. Once in power, House Republicans worked to deny Obama any legislative victories or bargains that could benefit him among voters. Mitch McConnell, the GOP’s leader in the Senate, used filibusters to grind the Senate to a halt. The electorate gave Obama a second term in 2012, but they rewarded McConnell’s strategy by handing him and the GOP control of the Senate two years later.

With Obama’s legislative agenda largely moribund, Republican attorneys general and their allies took aim at his policy initiatives within the executive branch. By the summer of 2016, Texas had filed 44 lawsuits against the Obama administration on matters ranging from immigration, health care, and federal recognition of LGBT rights. Though other GOP-led states often joined the litigation, Texas became the preferred location for litigation because cases were more likely to appear in front of conservative federal judges who would readily grant preliminary injunctions.

The trend accelerated after the 2016 election, albeit with the sides reversed. California has already filed more than 50 lawsuits against the Trump administration, surpassing Texas’s eight-year total against Obama in less than three years. Hawaii and Washington scored early victories against Trump’s Muslim ban. California and Illinois challenged attempts to withhold Justice Department grants from jurisdictions that don’t cooperate with federal immigration enforcement. The American Civil Liberties Union and a host of other groups have challenged a broad array of policies, including family separation at the border and the transgender military ban.

These lawsuits do not always succeed. But there have been more victories than defeats in the Trump era. Earlier this year, the Supreme Court sided with New York and its allies, blocking an attempt to add a citizenship question to the 2020 census. Many of Trump’s signature initiatives, particularly when it comes to immigration, have been temporarily waylaid by the courts while legal proceedings unfold. Scoring tangible victories in an era of gridlock has turned state attorneys general from both parties into national political figures and their offices into plum career opportunities. Texas’s current governor and senators all previously served as the state’s attorney general. Keith Ellison, once a rising Democratic star in the House, left Congress to mount a successful bid to become Minnesota’s attorney general in 2018.

Americans are used to political fights taking place in the courts to some degree. What’s changed is the centrality of the courts in those fights. Take the ACA: After its passage in 2010, Republicans spent most of the decade pledging to repeal and replace the law as soon as they had the opportunity. The Supreme Court narrowly rejected two efforts to strike it down in 2012 and 2015. House GOP lawmakers passed dozens of bills to do just that during Obama’s tenure, albeit without any hope of success so long as a Democratic president could veto their legislation. Donald Trump’s victory in 2016 raised the prospect that Republicans would finally harpoon their white whale.

When it came time to unmake Obama’s signature domestic policy achievement in 2017, however, the GOP couldn’t quite swing the ax. It turned out that most Americans actually liked the ACA’s reforms to the nation’s health care system, at least once those reforms were in mortal peril. More importantly, they also strongly opposed the Republican-drafted plans to replace it. By the summer of 2017, it was clear that the House’s wide-ranging replacement bill wouldn’t pass the Senate. But the Senate’s narrower attempt to remake the ACA also proved unpopular among Americans, giving cover for three moderate GOP senators to torpedo the bill in a 51-49 vote in July. In other words, the democratic process worked.

But the fight didn’t end there. One of the ACA’s main components is the individual mandate, which generally imposes a monetary penalty on Americans who don’t have a health insurance plan. The Supreme Court narrowly upheld its constitutionality in 2012 after Chief Justice John Roberts concluded the mandate couldn’t be justified under Congress’s power to regulate interstate commerce but was a valid exercise of its power to levy taxes. When Republicans passed their tax-reform bill in late 2017, they used the opportunity to reduce the penalty to zero, effectively scrapping the mandate without repealing it outright.

In a lawsuit filed against the federal government in early 2018, Texas and a coalition of GOP-led states claimed that the tweak fatally undermined the entire law. They argued that the Supreme Court’s 2012 decision only allowed the mandate to survive because it imposed a tax. Now that it no longer does so, Texas said, the mandate must be struck down and the entire health care law must go with it. Legal scholars across the ideological spectrum derided the state’s argument as nonsensical. But it persuaded a federal judge in Texas, who ruled last December that the entire ACA was unconstitutional and had to be struck down. (The law remains in force while appellate courts review the ruling.)

At first, the Trump administration told the courts that it agreed with Texas on the mandate’s constitutionality but said that most of the law’s provisions should be left intact. Then the Justice Department revised its position in March, telling the 5th Circuit Court of Appeals that the entire ACA should be struck down. (The 5th Circuit agreed this month that the mandate was unconstitutional, but told the district court to reconsider whether it could be severed from the rest of the law.) In essence, Republicans are now asking the courts to do the dirty work of scrapping a popular health care law that they themselves could not repeal, shifting responsibility from those who could be held accountable for their decisions to those who can’t.

Lawfare pushes policy battles outside the democratic channels in which they’re supposed to take place. Consider the fate of the Dreamers—undocumented immigrants who were brought to the U.S. by their parents as children and have lived here their entire life and known no other home. Polls have consistently shown that large majorities of Americans support legal status for Dreamers, as well as the DREAM Act from which their nickname is drawn. But popular support hasn’t translated into congressional support, and Dreamers’ legal status has become tied up in the fruitless search for a broader immigration-reform deal.

The failure of Congress to find a solution led Obama to protect Dreamers through his executive powers. Trump began unwinding those protections when he became president, sparking a legal battle that reached the Supreme Court earlier this fall. “The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful,” Attorney General Bill Barr said. “That is not how our democratic system is supposed to work.”

Whatever your thoughts on his legal analysis, it’s hard to contest his ultimate assessment in that situation. Courts play an important role in guaranteeing Americans’ rights and scrutinizing government power. But resolving most policy disputes through administrative and judicial channels freezes citizens out of the policymaking process. The dynamic also builds upon itself in unhealthy ways. As one party relies on executive maximalism to carry out its agenda, the other party starts to clamor for its leaders to go one step further. Slowly but surely, American governance has turned into a debate over what can be done instead of what should be done.

Democrats have enjoyed some success over the past three years against Trump. But they will likely bear the brunt of it whenever they hold the presidency for the foreseeable future. Anthony Kennedy’s retirement last year left the Supreme Court without a swing justice for the first time in a quarter-century. Brett Kavanaugh, his handpicked successor, is a longtime Republican political operative. The court’s new ideological balance means that this paradigm for American governance will ultimately favor conservatives more than liberals. And there is no easy way to vote them out.