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“[T]he privilege of the writ of habeas corpus can be suspended in a time of invasion. So it's an option we're actively looking at.” — Stephen Miller ()

“[T]his strikes me as raising the temperature to a whole new level.” — Stephen Vladeck ()

“No one should be arrested and locked up for their political views”— Esha Bhandari (ACLU lawyer for )

So much of the constitutional damage done (much of it irreversible) by the president’s executive orders is accomplished by what I tag their “So what?” stratagem, which is indifferent to the law or what courts rule. It is a tactic that strikes at the heart of constitutional government as we know it. Like so much else with this administration, it is done in lawless plain view and thus becomes increasingly normalized as Congress remains silent, the attorney general and cabinet officials remain subservient, and Democrats remain ineffective.

The objective: Rendering judicial rulings ineffectual

Some six decades ago, political science Professor  underscored the importance of judicial review in safeguarding free speech rights. The book was titled “.” The significance of that point was recently highlighted when Judge William K. Sessions  Tufts University doctoral student Rümeysa Öztürk free from unlawful detention at a South Louisiana ICE Processing Center. Ditto when Judge Geoffrey Crawford  the release of Mohsen Mahdawi, a Palestinian Columbia student who had been detained by immigration authorities when he went to his U.S. citizenship interview.

Judicial review is vital to our system of constitutional government. Since at least , the governing principle has been that the Supreme Court and lower courts are the final arbiters of the Constitution, subject only to the amendment process. But laws have staying power only insofar as they are obeyed. When ignored, their efficacy depends on judicial enforcement. Their rulings are thus entitled to respect. Such respect has been honored . . . until now.

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In brazen and bizarre ways, the Trump administration’s strategy has been to subvert that constitutional principle.

Consider this: What if the government acts in flagrant unlawful ways with the intent that its objectives will be realized whenever judicial relief comes too late to prevent them? Or what if judicial relief proves ineffective in correcting the larger non-litigated fallout of such orders? That is the Trump administration’s playbook, and it has already proven rather successful — it is their “Trump card,” so to speak.

That tactic poses a clear and present danger to our First Amendment freedoms, among others.

Examples of the ‘So what?’ stratagem

• The fear principle: Issue an executive order, enforceable by the attorney general, targeting a particular law firm. Make demands of that law firm. Most such firms will capitulate while countless unnamed others will take their marching orders from those threats. Such coercion succeeds even if the initial order was wildly unconstitutional, and it does so in the absence of judicial review. Even if successfully challenged in the courts, there are still the costs of litigation and the potential loss of clients.
• Effective intimidation: Issue an executive order, enforceable by one or more federal agencies, targeting a particular university. Make demands of that university and threaten it with loss of federal funding and/or the revocation of its 501(c)(3) tax status. Here again, such an “enemies’ list” of threats is unconstitutional. Such intimidation is nonetheless effective in at least two ways: First, it is a shot across the bow to other universities to fall in line. Second, it forces the university that contests the matter to incur the costs (financial and otherwise) of trial and appellate litigation. Thus, the resulting “victory” has its punitive consequences.
• Frustrating judicial relief: Issue an executive order, enforceable by one or more federal agencies, targeting immigrants. Proceed secretly and with great dispatch to deport such persons. The aim is either to preclude judicial review (as in the case of Kilmar Ábrego García) or to frustrate it by secretly seizing people and whisking them off to Trump-friendly jurisdictions. In those instances in which the government loses in a federal district court, the plan is to seek emergency review in the Supreme Court and argue that such decisions are left largely, or solely, to the prerogative of the executive branch.
• Irreparable damage: Ignore the law, breach it with reckless abandon. Here, the idea is to completely destroy the targeted party in such a way that judicial relief will never be able to make such parties whole again. There is no better example of this than the outrageous facts in  (U.S. Dist.. Ct., D.C. Case No. 1:25-cv-01090). Pursuant to an , on March 17, DOGE  “in the literal trespass and takeover by force of the U.S. Institute for Peace’s headquarters… Once physically inside the Institute’s headquarters, DOGE personnel and others . . . plundered the offices in an effort to access and gain control of the Institute’s infrastructure, including sensitive computer systems,” which included accounts, records, files, other records, files, and emails, which may have also been destroyed. Though the Institute for Peace is an independent nonprofit corporation established by Congress in 1984, its property was seized, and its nearly 300 D.C.-based .

Among other things, what is troubling about this power grab (one that deserves wide attention in legal circles and law school classrooms) is that while the administration claims that it is only “reduc[ing] the performance of [the Institute’s] statutory functions and associated personnel to the minimum presence and function required by law,” it lacks such legal authority. Meanwhile, DOGE is trying to  the Institute’s $500 million building. During a  on the matter, federal Judge Beryl Howell noted that even if she rules for the Institute, “that win makes no promises” on how difficult, or possible, it will be to put USIP back together. “A bull in a China shop breaks a lot of things.”

Chill, coerce, suppress, and then evade

In these instances and others, the stratagem is to coerce and suppress so as to render judicial review either impossible or ineffective. Moreover, there is the chilling effect that such actions have on anyone at odds with Trump and his confederates. Simply consider the law firms, universities, and even media outlets that have complied, either in the absence of any judicial ruling or despite it. 

All of this occurs sans congressional oversight, even as that body’s constitutional powers are breached with autocratic abandon. And despite her confirmation promise, Attorney General Pam Bondi has weaponized her office to gratify the kingly dictates of her boss.

As for the , there “have been over 200 cases where judges in the United States have anonymously received pizzas from individuals, where they didn’t order that. The implicit threat there is: ‘We know where you live.’” Consider it part of a Trump-inspired stratagem.

Part of that stratagem is the Trump administration’s tactic of denying or evading, as the following  between Second Circuit Judge Barrington Parker and government lawyer , reported by Erik Uebelacker at Courthouse News Service, reveals:

“Does the government contest that the speech in both cases was protected speech?” Parker asked.

“Your Honor, we have not taken a position on that,” Ensign replied.

“Help my thinking along, take a position,” Parker demanded.

“Your Honor, I don’t have the authority to take a position on that right now,” Ensign said.

Will the Supreme Court trump the ‘Trump card’?

And then there is the Supreme Court, which is flooded with emergency appeals from the Trump administration. While Chief Justice Roberts has tried to calm the waters with calls to end the intimidation of judges, his pleas have been ignored. Furthermore, Roberts and his colleagues face the specter that if they displease the president, their rulings might also be disregarded, either directly or indirectly.

Trump’s strategy is to free himself of any constitutional checks and balances. The frightening truth is that we are veering in that direction, and Mr. Miller’s latest threat is another bad omen, yet another “Trump card.” 

Just how far this authoritarian game continues will determine the future of our constitutional democracy.

Levitsky, Way, and Ziblatt on the road to authoritarianism 

• Steven Levitsky, Lucan Way, and Daniel Ziblatt, “” The New York Times (May 8)

How . . . can we tell whether America has crossed the line into authoritarianism? We propose a simple metric: the cost of opposing the government. In democracies, citizens are not punished for peacefully opposing those in power. They need not worry about publishing critical opinions, supporting opposition candidates or engaging in peaceful protest because they know they will not suffer retribution from the government. In fact, the idea of legitimate opposition — that all citizens have a right to criticize, organize opposition to and seek to remove the government through elections — is a foundational principle of democracy.

Robert Corn-Revere on the president punishing his enemies 

• Robert Corn-Revere, “,” Fox News (April 25)

Trump has made “lawfare” the official policy of his administration.

[ . . . ]

For the Trump administration, no grievance is too petty to escape outsized retribution. After the White House limited access by the Associated Press for refusing to relabel the body of water between Florida and Mexico the “Gulf of America,” federal courts ruled that this act of viewpoint-based retaliation was a violation of the First Amendment. The administration defied that order until April 15, when an AP journalist was allowed into a White House event for the first time since February. 

Even this, however, seems to be short-lived. The next day, the White House announced a new media policy which would once again restrict journalists at their own discretion — a move which the Associated Press argues is an attempt to evade the court order.

‘So to Speak’ podcast: The state of cancel culture in America

• “Is cancel culture dead?” ��ݮ��ƵAPP���� (May 9)

The co-authors of “” discuss its new paperback release and where cancel culture stands a year and a half after the book's original publication.

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More in the news

• Ilya Somin, “,” The Volokh Conspiracy (May 10)
• Greg Lukianoff and Adam Goldstein, “,” Persuasion (May 9)
• “Campus Pulse Check: Reviewing One Decade of University Priorities,” ��ݮ��ƵAPP���� (May 9)
• “,” First Amendment Watch (May 9)
• Eugene Volokh, “,” The Volokh Conspiracy (May 9)
• Ali Rockett, “,” The Post & Courier (May 8)
• Rebecca Boone, “,” Free Speech Center (May 8)
• Jack Dura, “,” Free Speech Center (May 7)
• Jacob Sullum, “,” Reason (April 31)
• “Campus Pulse Check: Reviewing One Decade of University Priorities,” ��ݮ��ƵAPP���� (May 8)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided 

•  (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
•  (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
• (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Review granted

• (argued Jan. 15)
•  (argued Jan. 10) [decided]
•  (argued Jan. 10)

Pending petitions 

Petitions denied

Emergency applications 

• (Kavanaugh, J., “IT IS  that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

Free speech related

•  (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
• (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)

Last scheduled FAN

FAN 469: “Zick on executive orders and official orthodoxies”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by ��ݮ��ƵAPP���� as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of ��ݮ��ƵAPP���� or Mr. Collins.