The Federalist Society’s Cautious Dance with Trump: A Relationship of Convenience?
The ascent of Donald Trump to the presidency has been a boon for the Federalist Society, a prominent organization of conservative and libertarian lawyers. Trump himself acknowledged their influence, promising during his initial campaign that he would appoint judges hand-picked by the society. True to his word, his administration filled numerous judicial vacancies, including three Supreme Court seats, with individuals closely aligned with the Federalist Society’s ideology.
However, recent events suggest a more nuanced relationship between the Federalist Society and the Trump administration than a simple partnership based on shared goals. At a recent Federalist Society gathering focused on the executive branch, a sense of ambivalence towards Trump’s second term was palpable among speakers and attendees. While few directly criticized Trump’s policies, with the exception of his tariffs, many expressed concern about the "chaos" that has characterized his administration.
This "chaos," as described by regulatory policy expert Susan Dudley, raises fears that Trump’s second term could be a "missed opportunity" for conservative deregulation. Some speakers warned that the administration’s ineptitude could squander a once-in-a-generation chance to dismantle existing regulations. Richard Pierce, a law professor, predicted that the administration would achieve "virtually none" of its deregulatory goals.
This critique implies a belief that the bureaucratic processes and legal hurdles that typically constrain presidential power will remain intact, even under a second Trump administration. Pierce suggested that many of Trump’s deregulatory efforts would ultimately be struck down in court, highlighting the need for careful policy analysis and meticulous execution to overcome legal challenges. He further pointed out that it’s hard for the required work to get done when the bureaucrats who know how to do it have just been fired.
Beyond concerns about policy implementation, some speakers seemed interested in curbing Trump’s power, echoing sentiments often found among Democratic legal circles, albeit for different reasons. The Federalist Society has long championed the idea of judicial supremacy, arguing that the judiciary, especially when controlled by allies, should hold sway over the executive branch. This commitment to judicial power appears to remain strong, even with a Republican president in office.
Discussions surrounding Trump’s tariffs exemplified this tension. The panel focused on the legality of the tariffs fixated on the "nondelegation doctrine," a legal concept that would grant the judiciary broad authority to overturn executive branch policies. While other arguments against the tariffs were mentioned, the emphasis on the nondelegation doctrine suggested a desire to use the tariffs as a vehicle to expand judicial power at the expense of the executive.
It is crucial to note that the Federalist Society is not necessarily poised to join a resistance movement against Trump. However, the conference revealed a divergence between Trump’s vision for the executive branch and the views of some within the Federalist Society, particularly when his goals clash with traditional conservative principles.
The conference also addressed the impact of the Trump administration’s efforts to reshape the federal workforce, particularly the Musk-driven initiative to cut jobs from government. Kristine Simmons, a former Republican Senate staffer and Bush administration advisor, criticized the initiative, arguing that it has exacerbated existing problems within the civil service. She warned that targeting probationary employees and rescinding job offers has led to the loss of talented young workers with essential technology skills. Furthermore, she argued that many of the employees opting to leave the federal workforce are "top performers," hindering the government’s ability to achieve its policy goals.
Some Federalist Society speakers warned that undermining the civil service would sabotage conservative policy objectives. They emphasized the importance of a skilled and dedicated workforce to carry out the complex tasks of policymaking and regulatory reform. As Bridget Dooling, a former White House lawyer, stated, "laying off, demoralizing, and immiserating the civil servants who work in the federal agencies reduces the capacity to write these reasoned explanations."
These concerns paint a picture of a mismanaged and directionless workforce. Federal employees "don’t know who is still an employee," they "don’t know what the mission is," and are constantly shuffled between supervisors, according to accounts shared at the conference. While pro- Musk perspectives were present, they faced sharp criticism, with many arguing that lasting changes to the administrative state require collaboration with Congress rather than unilateral executive action.
In essence, while the Federalist Society generally supports weakening civil service protections and aligning government workers with conservative goals, they expressed concern that the Trump administration’s approach is counterproductive. They warned that firing or disabling essential workers would undermine policy implementation and that any reforms achieved without Congressional support would be short-lived.
Despite these concerns, the Federalist Society’s partnership with Trump is likely to continue yielding benefits. For instance, Trump’s appointment of Harmeet Dhillon, a Federalist Society member, to lead the Justice Department’s Civil Rights Division demonstrates the organization’s ongoing influence.
However, many Federalist Society members appear to seek more than just appointments and policy alignment. They are eager to expand the power of the judiciary, even if it means weakening the Trump presidency. The focus on the nondelegation doctrine in discussions about Trump’s tariffs reflects this ambition.
While businesses may view Trump’s tariffs as erratic, the Federalist Society appears to see an opportunity to consolidate its own power at Trump’s expense, and at the expense of his successors, by championing a legal doctrine that would grant judges broad authority to veto executive branch actions.
Similarly, the debate over nationwide injunctions at the conference highlighted the Federalist Society’s willingness to challenge the Trump administration’s position on judicial power. Despite the Justice Department’s opposition to these broad orders, the panel engaged in a serious discussion about whether judges should have the power to halt federal policies nationwide.
In conclusion, while the Federalist Society is undoubtedly pleased to have a Republican in the White House, it appears that many within the organization would prefer a more methodical and less chaotic leader. They worry that Trump’s approach to governance may leave movement conservatives with few lasting victories.
Moreover, the Federalist Society is not content to be a mere coalition partner in a Trump-led movement. It seeks to shape major policy decisions and consolidate power within the judiciary it dominates, even if it means challenging the president’s authority. This suggests that the relationship between the Federalist Society and Trump is one of convenience, driven by shared goals but also marked by tensions and competing ambitions.
The key takeaway from the conference is that the Federalist Society is playing a long game. While they are happy to support Trump’s agenda when it aligns with their goals, they are also prepared to challenge him when they believe it is necessary to advance their broader vision of a conservative legal order, one in which the judiciary holds ultimate power.
This approach is best reflected in their careful and studied support of nondelegation and the use of nationwide injunctions, even when doing so opposes established executive branch policy. These represent long term benefits for the judiciary, and thus the Federalist Society at large, and are more important than any short term political wins for Trump.
As Trump begins to fade from the national scene, the Federalist Society will undoubtedly continue to shape legal discourse and influence the judiciary, with its long-term goal to secure more power. This recent conference proves that their partnership with Trump was more of a carefully calculated risk than a true symbiotic relationship.
