Professor James Todd on Lawfare and What to Do About It

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Our May speaker was Professor James Todd of Palm Beach Atlantic, who gave us an interesting perspective on the lawfare being waged against the Trump Agenda by the left and their hand picked partisan judges. Laying out the actions taken by the ACLU, blue state attorney generals and others, he listed some of the areas of attack and suggested some remedies that could be taken in defense.

Counting up the unprecedented number of lawsuits filed against his actions since President Trump took office, Dr. Todd found 214 cases filed (215 with the just filed NPR case). Of these, so far 88 have gone against the administration while 49 did not, an almost 2 to 1 margin. Most of the losses have been in the area of immigration, with mass deportations a particular target.

Some of the hysterical media coverage has involved the Alien Enemies Act and what constitutes “due process” for those deported under it. Judge Boasberg of the DC circuit for example, had begun contempt proceedings against the administration until halted by SCOTUS, for not following his orders to return planes in the air and bring back gang members from El Salvador. Articles of impeachment against this judge have even been introduced in the House. One could ask if these criminal members of Tren de Aragua, (which is listed as a terrorist organization and likely influenced if not controlled by the Maduro government) cannot be deported then who can? As many of these already have existing final orders of removal, what further “due process” would be contemplated?

Other prominent cases involve the canceling of temporary protective status (TPS) (for Venezuelans, Haitians, Afghans and Cameroonians), birthright citizenship and the meaning of the 14th Amendment, Harvard’s right to taxpayer dollars, and many of the anti DEI actions at various levels. All of these are large and important issues affecting foreign policy and national security, and SCOTUS will likely vindicate the Trump actions but it will certainly delay the agenda. Also, fighting Trump is a good resume item for leftist judges and law firms – they will be amply rewarded for being effective roadblocks.

It is interesting to note that the lawsuits against Obama and Biden by the states wanting existing immigration laws to be enforced were defeated because “only the federal government can set immigration policy”, yet when a Republican tries to act under that principal it is rejected. Mass inbound migration YES, mass deportation NO.

Professor Todd identified his hero in all this – Judge James Ho of the 5th circuit Court of Appeals. Appointed by Donald Trump in the first term, Judge Ho rebuked the Supreme Court for blocking the Alien Enemies Act deportations. He expressed frustration over what he saw as excessive expectations placed on lower courts, particularly regarding emergency motions filed at odd hours. In his concurrence, he famously remarked, “We seem to have forgotten that this is a district court—not a Denny’s,” highlighting his concern that courts were being expected to operate like 24-hour diners. Judge Ho is thought to be on the short list for the next Supreme Court opening if one appears during Trump’s term.

Some of the remedies that Professor Todd considers useful:

• SCOTUS could rule against national injunctions in the birthright case or others, though he thinks only Alito and Thomas would likely be willing
• Congress could end them but it would take 60 votes – perhaps it could be attached to a must-pass bill. Democrats have opposed these when the shoe is on the other foot
• Congress could clarify the scope of judicial power
• Trump could suspend Habeas Corpus on an emergency basis
• Congress or the administration could reform the asylum system
• Congress can certify the DOGE cuts (rescission bill?)
• Congress can abolish departments – like the department of Education
• SCOTUS could clarify the 14th amendment on birthright citizenship (stop for illegals but likely allowing “birth tourism”)
• SCOTUS could clarify that a President can fire or disband any “policy making” employee or agency
• SCOTUS could recertify that a actions under the Foreign Enemies Act are not subject to judicial review to second guess a President

Also speaking at the meeting were Gretchen Feng who is running for House District 87, and Chair Rosemary O’Meara of the President’s council to discuss the barbeque on June 14th.