If you are a conservative, one of the fun things about Donald Trump’s presidency is watching liberals lose their minds over how much they loathe him.
From media elites to members of Congress, progressives are often reduced to tantrum-like fits because they are so frustrated by living in the shadows of this establishment-busting, government-shrinking rebel of a president.
But some liberals still have power. And they’ll use it however they can to push back against President Trump’s agenda, even if it means rewriting or expanding laws through the courts, using lawsuits as a tool.
Like the mayors who create sanctuary cities in an attempt to make immigration law what they want it to be, state and local elected officials across the country are now employing a tactic known as “regulation through litigation” to push back against one of President Trump’s greatest economic accomplishments: deregulation.
Here’s how it works: Liberals think it is government’s role to make a lot of rules and they don’t think the Trump administration is doing a good job at that. So they are trying to make the rules themselves by suing private companies in order to make those businesses behave themselves.
For example, last month New York City sued five oil and natural gas companies for causing climate change that is “injuring New York City.”
Similar lawsuits have been filed by the cities of San Francisco and Oakland in California, and by several parishes in Louisiana, claiming the activities of energy companies are responsible for coastal erosion.
Oregon Attorney General Ellen Rosenblum is suing one company – Monsanto – for at least $100 million to clean up chemicals (PCBs) that have been banned since 1979, but were manufactured legally before then and disposed of in waterways by other entities. Nevertheless, Rosenblum has said to Monsanto: “We want you to pay for it.”
It seems clear that these folks, from their ivory tower vantage point, don’t think President Trump’s Environmental Protection Agency is doing a good job protecting Mother Earth. They feel they’d better do it themselves, with the help of a few clever trial lawyers and anti-Trump judges.
Frustrated liberals have employed this tactic before when Republican presidents have occupied the White House. The term “regulation through litigation” was actually coined by President Bill Clinton’s Secretary of Labor Robert Reich, who endorsed the practice as a way to get businesses to “do the right thing” (Reich later admitted the practice was undemocratic),
But it seems safe to say that the left has never been more frustrated by a president than now – and sure enough, this round of regulation through litigation has signs of being more widespread and damaging than ever before.
The judges who will make the decisions in these lawsuits have tremendous power – they can actually expand the law and set precedent that will put otherwise law-abiding companies up against a wall of liability.
But there is hope for protecting President Trump’s regulatory economic stimulus. These lawsuits can be impacted by the disinfectant that comes from exposure. Call it sunshine.
“These lawsuits are like mushrooms,” says Victor Schwartz, a civil justice expert and author of the premier law school book on torts. “They like to grow in the dark.”
“Bringing these lawsuits to light now can impact their outcome,” Schwartz says.
Conservative leaders – particularly Republicans at the state level – should shine a light on regulation through litigation by calling out the vengeful, frustrated liberals who are trying to weaken President Trump’s regulatory accomplishments.
Protecting deregulation and the rule of law will be the goal of conservatives, but I am sure that the tantrum reactions of progressive mayors, attorneys general and environmentalists in the media will also make their efforts well worthwhile.