The Legal Resistance

As most readers know, I’m a volunteer along with more than a hundred other people at Unbreaking.org, which currently describes itself on the main webpage as

Documenting damage and resistance. Unflooding the zone. 

I signed up because I have lots of writing and editing experience, but once I started looking at what needed doing, I realized that a skill I first learned in law school and honed in my years as a legal editor at BNA was particularly valuable: I can look at court documents of all kinds and figure out what’s going on and what’s important about it, if anything.

What this means is that I’ve not only been paying attention to the legal news – which I’d do anyway because looking at legal stuff is the easiest way for me to understand what’s going on – but actually reading about some cases in detail, particularly ones related to the security (or lack thereof) of people’s data.

This is work that is both inspiring and depressing.

It’s inspiring because so many lawyers and judges are working so very hard to combat the ongoing destruction of our democracy and the parts of our government that used to work pretty well.

Every time the grifter’s government does something outrageous, somebody sues. Our attorney general here in California has brought all kinds of cases, usually in company with attorneys general from other states. For example, they’re suing – and winning so far – over efforts to shut down food stamp payments in states that refuse to hand over data on food stamp recipients.

Several clinics and hospitals that do gender-affirming care have fought back when they got subpoenas from the Justice Department demanding that they turn over data on their patients and won.

And 29 states and the District of Columbia refused to provide voter rolls. They’ve been sued for those records, but so far the courts are ruling in their favor.

It’s interesting how many of the cases revolve around the government trying to get their hands on data about citizens and how strongly some of the states and their lawyers are protecting that data.

In a reasonable world, the federal government would be interested in protecting the data of the people who live in this country, but in the mirror world we live in they’re out to exploit it or use it to harm us.

But it’s still depressing. Some of that is just the mind-blowing things we’re having to fight about. It’s also the knowledge that the Supreme Court is packed with right wing extremists.

I mean, I was glad they threw out the tariffs, but that was one small victory from a court that has overwhelmingly ruled in ways that undermine our democracy.

But there are other reasons why legal work can only do so much for the resistance.

One of the things that we’ve all realized over the past year is that the rule of law – as opposed to the autocratic rule by a king or “strong” man – is one of the keys to our democracy. Of course the grifter, who has suborned the Department of Justice, has no respect for the rule of law but rather wants to run everything by fiat. And his lawyers frequently act as if they never learned anything about procedure, much less ethics, in law school.

The people on the other side – the ones defending the rule of law – don’t have the luxury of ignoring it. They really do have to play by the rules, because the rules are what they are defending.

Sometimes those rules mean that a court might have to rule against the people who are fighting for democracy because the rules don’t allow for the fight they’re bringing.

That’s partly because the legal system never planned for the kind of attacks we’re facing, so it has holes in it. For example, no one ever expected officials to weaponize the rules putting new federal employees on probationary status for a year so they could be fired without civil service protections if they were a bad fit. So many useful people lost their jobs – harmful to them, harmful to their agencies and to the people they serve – in en masse firings that had nothing to do with their performance.

The legal remedies are limited in that situation. A judge can’t just make something up; they need a law to hang a ruling on.

And I’ve also noticed that many of the judges who are making strong rulings against the administration are doing it very carefully and thoroughly. That, of course, takes time.

The other problem is that a lawsuit has to be based on something in the law. We may all know that the reason the Justice Department is going after voter data is to try to disenfranchise as many perfectly legal voters as they can, but the suit has to be over who has the right to the records.

Sometimes this begins to sound very contorted, as in the actions over whether the IRS can share names and addresses with ICE. We all know they’re doing this so they can find people who might not have proper documents, but the suit is over the wording of the IRS rules and code.

And of course, legal action is always slow. We’ve had a few fast rulings, but then appeals related to them drag things out.

I mean, the legal system is the absolute antithesis of move fast and break things. Though come to think of it, the Supreme Court has been moving slowly and still breaking quite a few.

Reading all these cases and reports makes it clear that we can’t rely only on legal action to fight this regime. It’s an important tool, but if we don’t do more it won’t save us.

We have to keep up the protests. We have to push for fair elections. We have to keep leaning on our elected officials.

I continue to refuse to be a doomer and a cynic, refuse to believe that evil can persist when so much of the country opposes it. But the grifter and his minions aren’t going to disappear just because we don’t like them.

We have to keep fighting anyway we can.