National Review has published my latest piece on the self-professed Legal Resistance. The piece is based in large part on the plenary address I gave last week at the Faulkner Law Review’s symposium on the Executive Power. My essay, which was written before last night, was bolstered by the Court’s decision to vacate IRAP v. Trump. (I will have more on the Court’s order today on Lawfare).

Here is the introduction of the essay:

Hillary Clinton was destined to shatter the glass ceiling and pack the Supreme Court with liberal lions. The Left dreamed of the day when federalism, the right to bear arms, and religious liberty would be exiled from the Constitution, replaced by the progressive jurisprudence they not-so-patiently waited for. Instead, on November 8, 2016, Donald Trump shattered those dreams. The Left awoke from this unfathomable nightmare to a painful hangover: The 45th president would shift the Supreme Court, and the entire federal judiciary, to the right. Rather than advancing our constitutional law closer to Justice Sotomayor’s wing of the Court, the new judges would entrench Justice Scalia’s jurisprudence.

Refusing to accept the outcome of the election, progressive legal groups rallied around a hashtag that soon became a movement: #Resist. The New York Times reported that advocacy organizations “put aside institutional rivalries” to make “legal resistance one of the defining attributes of the Trump era.” There is nothing novel about sore-loser litigiousness. Republicans resorted to this strategy over the last eight years. What is remarkable, however, is the breadth and speed of the successes of the anti-Trump lawyers in impeding a presidency. Their movement was advanced by Obama-administration holdovers within the executive branch, and even by federal judges, who abandoned their traditional role out of a fear that Donald Trump posed an existential threat to the republic.

The self-professed resistance must be understood for what it is: a thinly veiled legal revolt. Our Constitution has built-in safety valves to remove an unfit president, whether through impeachment or through a declaration of incapacity. But the exercise of those powers was not assigned to the judiciary. Judges can call balls and strikes; they can’t throw the president out of the game. Fortunately, the Supreme Court has remained a voice of reason within the federal judiciary — a role that it must maintain even as President Trump continues to disrupt legal norms. This administration will come to an end sooner or later. But the precedents set during this period will linger far, far longer.

And here is the conclusion:

The legal resistance often repeats the refrain that our polity must resist “normalizing” Trump as president. Courts, unfortunately, have followed the lead. When judges treat this president as anything other than normal — such as when they engage in law-office psychiatry — it sends a signal to the public that the chief executive is not as legitimate as his predecessors. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such. It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms.

In Federalist No. 78, Alexander Hamilton wrote that judges can exercise “neither FORCE nor WILL but merely judgment.” Judge William H. Pryor Jr. of the Eleventh Circuit Court of Appeals observed that “Hamilton’s point was that we must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens.” As a result, he wrote, judges have “the foremost responsibility of safeguarding [their own] independence.”

The nationwide injunctions against President Trump are grounded far more in “will” than in “judgment.” They reflect a sincere concern that the 45th president poses an unprecedented risk and that his acts warrant far more scrutiny than did those of his predecessors. This approach, though well intentioned, is profoundly flawed. In a recent speech, Justice Gorsuch offered some important words of wisdom for the rest of the judiciary: “Judges should wear robes,” he explained, “not capes.” Only the political process, and not what was designed to be the least dangerous branch, can save us from the consequences of our own decisions.

And here is the video of my address last week at Faulkner: