While many of us tend to focus on the Supreme Court’s acquiescence to the Trump administration’s actions on its shadow docket, lawprof Steve Vladeck argues that the courts have been more effective in keeping Trump’s usurpation of power than we realize.

For all of the attention that is (understandably) being paid to the unprecedented number of cases the Trump administration is rushing to the Supreme Court (we’re up to 28), and to the Court’s (troubling) behavior in those cases, they represent only a small subset of the broader universe of legal challenges to Trump administration behavior. In the majority of cases in which the government is losing in the lower courts, it is (1) not seeking emergency or expedited intervention from above; and (2) otherwise complying with the adverse rulings while the cases move (very slowly) ahead.

Because this reality doesn’t make for quite as attractive headlines, it’s one to which too many folks are largely oblivious. That’s a problem worth fixing—not only because it’s important to tell both sides of the litigation story, but because including these cases paints a more complicated (and, in my view, far less nihilistic) picture of the role of the courts—and of the law, more generally—as a check on the Trump administration.

Ilya Somin points to the decision by Judge William E. Smith, a George W. Bush appointee, in  Illinois v. FEMA as further evidence of Vladeck’s point.

Earlier today, in Illinois v. FEMA a federal district court ruled the Trump administration cannot deny federal disaster relief aid to “sanctuary” states that limit assistance to federal efforts to deport undocumented immigrants. The suit was brought by twenty state governments, led by the state of Illinois, and by the District of Columbia. This is the latest in a long line of decisions striking down Trump Administration efforts to impose immigration-related conditions on federal grants to state governments, even though those conditions were never authorized by Congress.

There are two basic weapons available to the Trump administration to coerce states to do its bidding. The first is the replacement of personnel on independent, non-partisan boards that were created by Congress to administer laws based upon the putative expertise and placed within the Executive Branch of government for execution. Thus far, it appears the Supreme Court has been largely cooperative in allowing Trump to replace competent and qualified staff with his loyalists, effectively overruling Humphrey’s Executor without actually saying so and undermining the congressional purpose of independent, expert, and often quasi-judicial agencies by turning them into tools of the president.

The second basic weapon is holding funding hostage to states and local governments not doing as their told. Citizens of states pay their federal taxes with the expectation that the federal government will use those monies for the purposes determined by Congress. In Illinois v. FEMA, Trump has refused to provide emergency relief funds to states that aren’t sufficiently cooperative with his scheme to deport all people who speak with an accent.

First, the Court finds that the contested conditions are not reasonably related to the purposes of the grants to which they attach. DHS justifies the conditions by pointing to its broad homeland security mission, but the grants at issue fund programs such as disaster relief, fire safety, dam safety, and emergency preparedness. Sweeping immigration-related conditions imposed on every DHS-administered grant, regardless of statutory purpose, lack the necessary tailoring. The Spending Clause requires that conditions be “reasonably calculated” to advance the purposes for which funds are expended, [South Dakota v.] Dole, 483 U.S. at 209, and DHS has failed to demonstrate any such connection outside of a few programs like Operation Stonegarden. The Court therefore concludes that the conditions are overbroad and unrelated to the underlying programs.

Second, the Court finds that the conditions are coercive. The record shows that states rely on these grants for billions of dollars annually in disaster relief and public safety funds that cannot be replaced by state revenues. Denying such funding if states refuse to comply with vague immigration requirements leaves them with no meaningful choice, particularly where state budgets are already committed. The financial pressure here goes well beyond the “relatively mild encouragement” approved in  Dole, 483 U.S. at 211, and amounts instead to “economic dragooning” of the sort condemned in NFIB [v. Sebelius], 567 U.S. at 582. The coercion is even more pronounced because the threatened funds involve essential public safety responsibilities rather than optional or peripheral programs.

Mind you, this is no “left wing radical” judge, even though neither Trump, Kristi Neom nor Stephen Miller would have any qualms saying so. Rather, this is a judge who applied the law as the Supreme Court requires. As it turns out, Trump can’t deny disaster relief to the states, and to the people of that state, that won’t bend to his will.

Does this mean the courts are working, are providing the guardrails against Trump’s unlawful, unconstitutional, impetuous and unAmerican actions?

They also reinforce Steve Vladeck’s point that the judiciary is resisting Trump’s power grabs more effectively than many think. The second Trump Administration, like the first, keeps losing sanctuary city cases, and so far they have not tried to get them to the Supreme Court (probably because they know they are like to lose there, too). Because the issue has not reached the Supreme Court, and because there is so much else going in the news cycle, these cases have not attracted much public and media attention. But they nonetheless have substantial real-world effects. Had they gone the other way, Trump would have many more levers to compel state and local governments to do his bidding. That doesn’t mean courts are doing everything right (they aren’t), or that they can curb Trump’s illegal policies entirely on their own (the latter requires a strategy combining litigation and political action). But they are making a real difference.

Ilya’s point, that we are so overwhelmed with bizarre Trumpian actions that neither the news cycle, nor our attention span, can keep pace with the judicial rulings against Trump that never make it to the Supreme Court (or at least haven’t made it yet) that we can’t appreciate what the courts are doing to limit Trump’s attempt to ignore the law.

Then again, the fact that courts have and are continuing to rule against Trump doesn’t mean Trump is complying with court rulings now any more than he did when he was enjoined from sending aliens to El Salvador. It’s not that the courts haven’t been trying, or taking their responsibility seriously, but that the real world impact of these rulings isn’t readily apparent, while the excesses seem to continue unabated and with essentially no sign of restraint by Trump’s loyal underlings.