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THE COURTS CAN’T STOP THE TRUMP-MUSK COUP  
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Elie Mystal
February 7, 2025
The Nation
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_ While the lawsuits being filed against the Trump-Musk
administration are righteous, they will not “save” us from this
nightmare. _

Tech billionaire Elon Musk speaks live via a video transmission
during the election campaign launch rally of the far-right Alternative
for Germany (AfD) political party on January 25, 2025., Sean Gallup /
Getty Images

 

With the Democratic Party protesting the crimes of the Elon
Musk–Donald Trump administration with the skill and preparedness
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a high school chess club that’s suddenly been told they’re
starting the big football game, most liberals have pinned their hopes
for real opposition on the courts. Lawsuits have been pouring down on
the Trump administration like rain. To keep up, I check the
helpful litigation tracker
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and updated by Just Security [[link removed]]. As of
this writing, the website is following 35 separate lawsuits filed
against Trump’s executive orders.

Many of Trump’s orders are illegal, and unconstitutional, and
brazenly so. Most good-faith lawyers can see that, but “good
faith” does not describe the current state of the federal judiciary.
Trump and MAGA have captured and corrupted the courts: They have
seeded the lower courts with federal judges more loyal to Trump and
his white-supremacist movement than they are to the law. They have
stacked the Supreme Court with justices hostile to civil rights and
equality. This doesn’t mean that cases brought by the ACLU, AFL-CIO,
or Democratic state attorneys general are destined to fail. Their
cases are righteous (and, legally speaking, right) and must be
brought. Some might even succeed.

But the courts will not “save” us. They will not be the backstop
protecting us from the Trump-Musk takeover, and any person who tells
you otherwise, especially if that person is an elected Democrat in
Congress, is selling you an excuse for inaction and complacency. Trump
and Musk are barbarians at the gate; calling in _the lawyers_ to
tell them they’re trespassing isn’t going to halt their advance.
Courts are not known for their harm prevention—they’re best used
when trying to hold someone accountable for the harm they already
caused.

The most obvious reason for this is that the courts move slowly. They
are _designed_ to move slowly. A court has to wait for a bad thing
to happen (a “case or controversy”), then gather evidence on the
bad thing that happened (a “trial”), then listen to one side argue
that the bad thing wasn’t actually that bad (the “adversarial
system”), then enter a judgement that can be appealed, and appealed
again (to the Circuit Court and the Supreme Court, respectively). If
we’re very lucky, in a year or two we’ll get final rulings on
whether Trump is allowed to do the bad things he started doing two
weeks ago.

The quickest tools the courts have at their disposal is the
“temporary restraining order” (aka “TRO”) and the
“nationwide injunction.” You’ve likely heard these terms before.
These are temporary orders issued by a court that purportedly prevent
the implementation of new laws or policies pending a full trial (or
hearing) and ruling on the “merits” of a legal challenge. Often,
these temporary orders themselves are appealed all the way to the
Supreme Court (which potentially delays the timeliness of these
emergency actions), with the administration trying to lift the
temporary stops so it can implement its policies while the courts sort
out whether the policy is legal.

The Trump administration has already been hit with TROs over a number
of its illegal and insane executive orders —including its
unconstitutional revision of the 14th Amendment to end birthright
citizenship, its illegal funding freeze on money already appropriated
by Congress, and its immoral and dangerous prisoner transfer of
trans-women to male prisons.

In theory, these orders should be effective stopgaps. The problem is
that the court has no enforcement mechanism. It has no army, no police
force, no power to impose its will. Instead, the executive—in this
case the president—is supposed to enforce the court’s orders. But
what if Trump doesn’t? There is little reason to believe that Trump
will enforce an adverse court ruling against himself. There is no
reason to believe he’ll enforce one against Musk. He’s clearly not
interested in enforcing the court order (and, you know, the _entire
piece of legislation passed by Congress_ and signed by his
predecessor) against TikTok.

Consider the constitutional crisis unfolding right now. Musk has
reportedly seized access to the private information of every US
taxpayer, and the payroll information of every government employee. He
has no right to this information but… he has it. Who’s going to
undo that damage? A court order released Thursday afternoon
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limited Musk’s access to Treasury files to two “special
employees” with “read-only” access to the data. Musk has
reportedly agreed to follow those rules. Who is going to make sure he
does? Who is going to lead the crack team of forensic digital
investigators to make sure that Musk is in compliance with this or any
future court order? My guess is “no one.” Musk currently has a
stranglehold on the government, and enforcement of his limitations is
going to run on the “trust me, bro” system.

Or take the funding freeze. As of right now, according to the courts,
Trump is not allowed to withhold funding to any organization or
institution that receives federal money appropriated by Congress. But
it’s not at all clear that Trump has turned the money back on. Trump
is likely in violation of the TROs suspending his funding freeze as we
speak, but the Trump-aligned media refuses to talk about it that way.

TROs and nationwide injunctions worked in the past only because other
presidents agreed to be restrained by them. If courts tell Trump not
to do something, he’ll pretend his cell phone dropped the call and
keep right on doing it.

In response to this full blown crisis, rule-of-law aficionados,
feckless institutionalists, and Democratic Party leaders will counter
with something like “but the courts are all we have.” They’ll
wave court orders around like they’ve won the day. Meanwhile, Trump
and Musk will just laugh while their sycophants will crow about how
their daddies “defy Washington elites” even when that
“defiance” amounts to common thievery.

I’m not even sure the people who think the courts will save us have
fully considered what “saving” will look like should it come from
the Republican-controlled Supreme Court. It’ll be like being dragged
out of a fire by a very hungry wolf. As a person who has read these
people all of my adult life, please believe me when I tell you
that, _if_ the Federalist Society judges strike down some of these
Trump executive orders, _you’re not going to like how they do it_.

Chief Justice John Roberts and his crew of legal arsonists will be
thinking of a world post-Trump. Even in ruling against him, they can
ensconce principles that will make it very hard for future generations
of liberal lawmakers to undo much of what MAGA and the FedSoc are
putting in place now. I predict rulings from this Supreme Court that
narrowly limit what Trump can do while simultaneously expanding what
unelected courts can do, specifically Republican courts, to frustrate
a number of democratically passed laws in the future.

Take birthright citizenship. I could be naïve, but I do not expect
the Supreme Court to support Trump’s attempt to revise an entire
constitutional amendment through executive order, at least not in the
broad way Trump is trying to do it. But watch for the court to give
credence to the so-called “invasion” argument, which holds that
the children of the military forces of an invading army do not get
birthright citizenship if their enemy-combatant parents happen to give
birth on occupied soil. This Supreme Court could tell Trump exactly
which hoops to jump through in order to classify immigrants as
“invading combatants,” and if Trump doesn’t care enough to jump
through those hoops, his successors might.

Or, again, look at the funding freeze. Here as well, I do not really
expect the court to allow Trump to violate the separation of powers
and usurp the appropriations power constitutionally granted to
Congress. But in ruling that he can’t, the conservatives—in an
opinion written by Neil Gorsuch, I expect—are likely to tell us a
lot about “nondelegation doctrine,” which basically means that
Congress cannot place any of its authority with executive agencies,
and, of course, only the courts can truly know how Congress meant to
use its power.

And this could be how some of the rulings come down when we “win.”
There are any number of Trump orders that this Supreme Court is going
to rubber-stamp, all while promoting the conservatives’ “unitary
executive theory” that grants the president powers more commonly
associated with those of a king. As we’ve already seen with the
court’s decision to grant Trump immunity from criminal prosecution
for official acts, Roberts and his co-conspirators have pre-decided
that the best way to handle Trump is to ride it out, generally give
him what he wants, and accrue as much power for themselves as
possible. Power that they’ll be happy to redeploy once he’s gone
and they are again dealing with an executive who will faithfully
enforce their orders, like literally any sad-sack Democrat who ever
manages to win election again.

I’m not saying that the courts do not _matter_. As I said, some
good decisions will squeak through. Some lives might be spared. I also
cover the courts, and I have to believe that such coverage still
serves some purposes in our rapidly declining civilization. A ruling
against Trump could help to spur public opinion against his actions. A
ruling against Trump that Trump ignores could help to break the media
out of its Trump-induced stupor. The lawsuits are necessary; the TROs
are necessary—literally any shred of resistance against anything
Trump is doing is necessary.

But the courts will not _save_ us. Even a friendly court is not
designed to save democracy from a democratically elected president,
and most courts are not our friends to begin with. The American people
gave Trump and Musk the power they now lord over us. (Even though
I’m aware that nobody voted for Musk, everybody who voted for Trump
knew or should have known that they were handing the keys to all of
our data to a billionaire white South African with an apartheid
complex). Only the American people can take that power away.

Trump’s approval rating is as high as it’s ever been
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Musk’s is worse, but his allowing Musk to run roughshod over the
very concept of government does not appear to be negatively affecting
the public perception of Trump. As long as this remains the case,
Trump’s Republicans will continue to lick his boots. Democrats will
continue to react with timidity and fear instead of resolve and
determination. As long as the public approves of what Trump is doing,
he will keep doing it. He will most likely keep doing it even should
the public disapprove, but that will be a different problem.

A court order cannot enforce itself. It cannot change a mind. It
cannot make white folks less racist. It cannot recapture things that
have been lost, or stolen. The only thing that can save us is us.

_Elie Mystal is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
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He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
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Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2025 THE NATION. Reprinted with permission. May not be
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* Donald Trump
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* Courts
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* democracy
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