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December 19, 2024
Institutional Resistance Is Futile
It’s time for the Democratic Party to abandon its staid, rules-based resistance to Trumpism and wage a fierce, moral response.
House minority leader Hakeem Jeffries (D-NY) (L) and Senate majority leader Chuck Schumer (D-NY), join fellow congressional Democrats to reintroduce the Freedom to Vote Act in the Lyndon B. Johnson Room at the US Capitol on July 18, 2023 in Washington, DC.
(Chip Somodevilla / Getty Images)
No more deals. No more games. No more parliamentarian parlor tricks designed to dull the roughest edges of Donald Trump’s unconscionable policies. My greatest holiday wish for the shambolic political party known as the Democrats is that they abandon the cloying institutional response to Trump that they have deployed to such little effect and instead let the people have what they say they want.
Don’t get me wrong: I am not suggesting that the Democrats should help Trump; I’m not recommending that they join in the evil he is about to unleash on the country and the world. But they should not spend another four years humping guardrails and holding a “center” that has already shifted so far to the right that it makes George W. Bush look like a benign moderate.
We’ve already seen how little that approach achieves. Since 2016, the Democrats have deployed institutional responses—lawsuits, hearings, impeachment efforts, and unreliable Republican allies—to try to stop Trump, while Trump has used raw political power, billionaire buddies, and anti-establishment rhetoric amplified by a cowed and captured media to bend the political universe to his will. Even when the Democrats have “won,” they’ve looked weak and ineffectual. Think about it this way: The single greatest institutional victory for the Democrats during Trump’s first term was not delivered by a Democrat but by a Republican, John McCain, when he gave the thumbs down on a vote to repeal Obamacare.
Fast-forward six years from that iconic moment: As Americans from both parties cheer the cold-blooded murder of a healthcare CEO in the streets, Democrats continue to try to convince people that a program designed to help people buy the insurance the dead guy sold is the best we can do, while Trump has offered no healthcare plan whatsoever—but his people are convinced that if he did it would be “great.” It’s frankly amazing that Democrats didn’t lose by more.
And it gets worse: If you listen closely, you can hear Democrats express more sympathy for insurance company executives than they do for almost any group of people placed under threat by the Trump administration. That is the most maddening failure of the Democrats’ institutional responses: They spend their emotional and moral energy on defending the institutions Trump attacks instead of the human people he threatens. Trump demonizes immigrants and uses executive orders to harm them, but instead of defending immigrants and their humanity, Democrats defend… the “separation of powers” and the “rule of law.” He inspires his people to attack the LGBTQ community and, especially at the moment, the transgender community, and Democrats defend… Supreme Court precedent. The entire white wing of the country now uses “DEI” as a synonym for the n-word, and Democrats defend the Equal Employment Opportunity Commission. Trump wants to tear down the system in order to hurt people, but Democrats are more likely to defend the system than the people Trump is trying to hurt.
This insane cycle has to stop. We cannot defeat Trump or, more importantly, his racist, misogynist, know-nothing movement by propping up institutions and systems that so many millions of people—including those who are not racist or sexist and still reluctantly vote for the Democrats—have come to despise. When Trump moves to destroy an institution, the Democrats should do nothing. But when he moves to destroy people, the Democrats should do everything under the sun, including taking the “resistance” directly to the streets in the form of extrajudicial maneuvers and civil disobedience.
Current Issue
The first step toward doing nothing is, of course, not voting for Trump’s policies. I can’t believe I have to write this (but people familiar with the feckless Democratic Party know I do), but the Democrats should not vote for Trump’s initiatives. Not his legislation, not his cabinet picks, not one single thing. Keeping its head out of its ass long enough to simply not vote for Trump’s plans for two consecutive years would be the most anti-institutional thing the Democratic Party could do right now.
The best possible political outcome of this approach would be for the Republicans to own everything Trump does. The government is not divided. Republicans have won one-party rule. So force them to rule. Trump shouldn’t be able to get a single cabinet appointment with the help of Democratic votes. He shouldn’t be able to pass a single piece of legislation with their support. He shouldn’t be able to pass a budget with their help. The Republicans should be on their own. And if they have to get rid of the filibuster to move their agenda, so be it. Make them do it. Do nothing, and make Republicans do it all.
The results will not be pretty. Which is why Democrats, having abandoned any attempt at an institutional response, must instead meet the moral outrage of the moment with tactics that don’t rely on Trump’s courts, executive agencies, or Susan Collins. Nobody will care if the Democrats try to use the Senate parliamentarian to gum up some cockamamie plan Trump has cooked up. But people will care if they see Democrats out on the streets, joining picket lines, and putting their physical bodies between Trump’s forces and the regular people Trump is trying to hurt.
The best way to think about the difference between an institutional response versus a moral one is to think about how Democrats should contest Trump’s plans to mass deport millions of people, along with his other inhumane immigration policies.
Step 1: Don’t vote for it. That includes you, Representative Richie Torres. That includes you, Senator John “compassion-for-me-but-not-for-thee” Fetterman. Don’t. Vote. With Republicans. If you cannot find it in your political self-interest to stand with 20 million people Trump is threatening to force-march out of the country, or the millions and millions of other people who count citizenship as their birthright despite having immigrant parents, then you are already on the wrong side of the moral and ethical divide in this country, and are of no use in the battles to come. Democrats who want to find common ground with Trump need to switch parties and rid us of their bullshit. It’ll be fine, Democrats can lose just as easily without Manchin and Sinema doppelgängers as they did with the real things.
Step 2: Once the act has passed—or, if Trump opts for an executive order to do his dirty immigration work, as he has threatened to do—don’t just give a fiery speech on CSPAN or file another lawsuit. We know from previous experiences with Trump that these normalized and institutionalized responses don’t really work. We know that Trump has already captured the courts, and if the Supreme Court doesn’t rubber-stamp his orders outright, it will give him attempt after attempt to craft the order until he gets it “right.” That’s what the court did with the Muslim ban, and you can best believe they will do it again with mass deportations. Democrats must have a response that goes beyond crying about the rule of law and talking about the states’ rights of Gavin Newsome’s California.
To me, that response is extrajudicial, anti-institutional, and, at the very least, impolite. I don’t want to hear a word about “friends from across the aisle” when those “friends” are trying to banish 20 million people. Instead, I want to see Democrats doing sit-ins and being carried out of Congress by the sergeant at arms. I want to see politicians chaining themselves to other people. I want Democrats lying down on train tracks. I want them reviewing the civil rights–era playbook and remembering how people who had no institutional power brought about structural change by demanding better from institutionalists.
As important, I want the American people to see the Democrats doing it. The Trump media will cover a lawsuit as just that: legal mumbo jumbo where both sides have a credible argument but Republican jurists get to decide who is right. They will treat parliamentary games as just that: a game where one side tries to out maneuver the other side before they all go out for cocktails with each other as the grand circle jerk goes on.
But they will cover a sitting congressperson standing with activists to prevent a bus full of immigrants from rolling across the border a whole lot differently. They will cover a bunch of senators shuttling undocumented immigrants into the National Cathedral and claiming “sanctuary” while daring Pam Bondi and Kristi Noem to shoot their way inside like the national crisis it is.
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And the people who see the Democrats fighting in this way will say… whatever racist things they’re gonna say. But they’ll also see that at least the Democrats are not punks. At least the Democrats have the courage of their convictions. Trump drove around in a garbage truck for a day; the least Democrats could do would be to actually get their hands dirty.
No more deals. No more games. No more intergovernmental parlor tricks designed to look like you’re doing something when you’re really just biding time until midterms. If there is a man in a red hat threatening to come down America’s chimney and give everyone the gift of racism, bigotry, and ill-will towards women, I don’t want the Democrats to say, “This year, we will not be putting out cookies and milk, hashtag Resist!” I want Democrats to light a fire in the hearth and dare the bastard to blow it out.
That is my wish, and my resolution is to do what I can to hold politicians accountable to that vision.
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Elie Mystal
Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. 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, published by The New Press. Elie can be followed @ElieNYC.
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