Thomas G. Moukawsher

Newsweek

Trump’s Right. There Is a Judicial Coup—But It’s a Counter-Coup | Opinion

Thomas Moukawsher

Published

Jun 04, 2025 at 08:00 AM EDT

 

President Donald Trump and his minions continue to rage and blow as they lose one court case after another.

In a case of Trumpian projection, the White House declared the recent decision at the U.S. Court of International Trade striking down most of his tariffs a “judicial coup.” It was classic Trump. He always accuses his adversaries of committing whatever wrong he is trying to get away with—”lying,” Hillary Clinton—”crooked” Joe Biden.

But actually, Trump keeps losing in court because he is trying to overthrow law and order, and the courts are trying to stop him. With a steady and deadly stream of executive orders, Trump is mounting a coup against the checks and balances that have sustained democracy in America for over 200 years. The courts are the counter-coup—seeking to restore the established constitutional order.

In the case of the tariffs, the Constitution gives Congress, not the president, the power to impose tariffs on goods entering the country. Yes, Congress passed a law allowing the president to impose tariffs targeted at emergencies, but Trump capriciously slapped them on the whole world without rhyme or reason. The tariff tsunami, like other Trump power grabs, was justified by a claim of an “emergency,” but, wisely, the court would have none of it.

The sham trade “emergency” wasn’t as flashy as the “invasion” emergency Trump declared regarding the Tren de Aragua drug gang. But it was just as bogus. Courts correctly discerned that the United States wasn’t being invaded. More importantly, they recognized that even enemy aliens in time of war have the right to challenge their arrests in court.

Trump halting hearings and threatening habeas corpus is revolutionary stuff. It’s the beginning of a road reminiscent of France’s Reign of Terror where its glorious Declaration of the Rights of Man was pushed aside by men who confused their own impulses with righteousness. Trump can complain all he wants, but he is the insurgent, not the judges.

The principal feature of the Trump coup is his attempt to use executive orders to seize Congress’ law-making function. Trump and his people simply ignore that presidents don’t announce laws, they carry them out as written by Congress. That’s why presidents swear to “faithfully execute” the laws.

In the case of the tariffs, the law limits Trump’s power. It is no coup for courts to say Trump must obey these limits. In the case of his cuts to federal spending on everything from foreign aid to FEMA, the governing law is the budget passed by Congress. It says what the president must spend on, and the president doesn’t have the option to rewrite the law so he can spend—or not spend—as he likes. Yet Trump has undone innumerable congressional spending decisions.

Consider also Trump’s attacks on major law firms and universities. His executive orders punishing people because he doesn’t like who or what they stand for don’t just seek to cancel acts of Congress, they seek to cancel the constitutional First Amendment guarantees of free speech and association. Was it judicial insurrection for the courts to say that Trump can’t cancel the First Amendment?

And is it mutiny for the courts to say that Trump can’t use his office to punish his personal enemies like former FBI director Robert Mueller? The constitutional guarantee of equal protection of the law requires official action to be aimed at legitimate government purposes—not personal ones.

Likewise, is it a revolt for the courts to insist on the “due process” of law guaranteed by the Fifth and Fourteenth Amendments? This promise means that before the government deports people or bans lawyers from federal buildings, it must give them a chance to defend themselves.

No. The courts aren’t in revolt. What’s revolting is the hubris that has inspired Trump to ignore the law as declared by Congress and the courts and associate law instead with his own personal will. The courts have no physical force to deploy against Trump’s coup. To sustain the judicial counter-coup, the courts have only the moral force of memory that our nation became mighty, that it became the envy of the world, because it was founded on a government of laws, not men. Let’s hope it’s enough.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.