Losing once is not cause to retreat. It calls for a new strategy, and perhaps, more dogged determination.
This week’s defeat of the wet-behind-the-ears Trump Administration on its executive order seeking to temporarily ban visa holders from the Suspect Seven Mideast nations should not stop its efforts to strengthen our border security, or assert the rights of the Executive Branch.
The Administration must double, triple down on its efforts. There are two reasons. One is the policy need, because a porous border demands it. (So does a national culture of de facto nullification of laws neither respected nor obeyed by the politically correct opinion elite.) The second is to signal that the Administration will not bend — or break — in the face of determined opposition.
Make no mistake, it is clear that under this Administration, the battle lines are not party identification based or even ideological as in every other prior Administration. No, now the battle lines are drawn on sharp cultural lines, the better with which to discern the sharpest, most visceral divide in our national consciousness — two Americas, indeed. Hence, we are in a post-fact struggle. The fight is now becoming (has become?) tribal.
The new paradigm requires reassessing how to win the legal war. When most judges and lawyers are ideologically left and results-driven (i..e., the ends justify the means), it means that effecting change requires a trench-warfare mentality.
That means seeking out multiple battlefields in the search for incremental change.
It means being willing to fight a war of attrition.
It means aggressively bringing cases to push back the cultural excesses of the past four, five, six decades which have undermined classic American and Western values. Immigration is just the tip of the spear. It should mean challenging the legal underpinnings of every Leftist victory.
The Executive Branch controls the Department of Justice. DOJ is much more than a federal criminal prosecution force; its civil division sues to enforce federal law.
The resources are there already. What is needed is a willingness to fight, even to lose. Even to welcome defeat.
Trump needs to evoke Winston Churchill:
“We shall defend our island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.”
You fight everywhere. Even in hostile territory. Even before courts and judges you know will be inhospitable to your arguments. But you make the other side defend its turf, its illegitimate gains.
For the first time in decades, you make them play defense!
Now, court defeats may be predicted. They may be inevitable. And defeats do set precedents. But then you fight some more.
You know what you do? Each time you lose, you go back and tweak the policy, tweak the Executive Order, whatever. You relitigate on new facts.
You force the other side to defeat all its territory.
And you know what?! The other side will start to get worn down, to make mistakes, and we will start to win.
Sometimes, you have to stop caring how you win, and take your victories as you get them. (See: New England Patriots, Super Bowl XLI.) A win is a win.
Losing multiple times in court does not necessarily mean a step backwards. So what if you lose?
We already hear the warnings that Trump will lose his “political capital”? This is the nonsense from his detractors who want to deter precisely the aggressive approach I outline here. Why care about “political capital”? In a divided national culture where much (if not at least half) of the population does not merely oppose Trump, they revile him and his supporters, is there really anything to lose?
After all, if you don’t even try to assert your rights, your chance of winning is . . . zero. Plus, you embolden your enemies — see former Ambassador John Bolton’s admonition that “weakness is provocative” — and signal timidity to your rabid followers whose support is and will remain essential to Trump’s ability to function.
The best part of this? Fighting a broad and deep legal war is cost-effective. Hiring determined conservative lawyers is not expensive — not when compared to what government ends up spending on bad policies and infinite liabilities. Yet the upside, in pushing back the choking expansion of the regulatory state, and standing up against the cultural imperialism of an overtly anti-American (if not treasonous) Far Left, promises to be far greater than the cost.
Without fighting like this, defeat is assured.
The cost of that defeat will be enormous to future generations.