The federal judiciary is out of control in this country. We have read numerous commentaries on the extrajudicial problem of these abusive magistrates taking the law into their own hands, tying up President Trump’s America First agenda, and going so far as to impede his legitimate Article II authorities as President of the United States. The biggest point of contention follows adverse federal court rulings on executive staffing and immigration.
Regarding Trump’s unilateral hiring and firing of federal employees within his cabinet, he should continue without hesitation. He has the authority to execute the laws of the United States, and he has the authority to remove people and close departments as he sees fit. It’s stunning that any justice would presume to order Trump to spend money on any department or keep any staffer. The whole point of being an executive is to execute the laws as you see fit.
Regarding immigration, Immigration Czar Tom Homan has vowed to deport as many illegal aliens as possible, regardless of the number of judges who rule, “No, you can’t.” Immigration Adviser Steve Miller arranged for Trump’s ICE team to deport Tren de Aragua out of the country just in time. That way, any orders from a rogue judge would be moot, as they would not apply to an aircraft over international waters. A little judicial forum shopping assisted these efforts, too, since several ICE detentions and deportations are coming out of New Orleans, where the Sixth Circuit Court of Appeals is more favorable to Trump’s (and our) agenda.
El Salvador President Nayib Bukele, who offered to house the illegal aliens in his country’s maximum prison for a fee, gleefully thumbed his nose at the federal district judges who had ordered Trump to turn the planes around and bring the illegal aliens back to the United States. Bukele’s assistance with our nation’s judicial problems is noteworthy. When he first took office, Bukele had to deal with overbearing judges who thwarted his efforts at every turn. Instead of looking for legal workarounds or seeking judicial compromises, he just had the judges impeached and removed from office.
That kind of boldness deserves consideration, even implementation in the United States. Chief Justice John Roberts is wrong: President Trump does have the right and authority to confront, discipline, and even take steps to remove bad judges. Since when does a federal district judge have the unilateral authority to issue nationwide injunctions to frustrate constitutional actions on our soil? What else can be done about them?
Impeachments take time, though, and require 67 U.S. senators for a conviction. Many Trump advocates, including Elon Musk, have urged the President to simply defy the courts. After all, that’s what President Andrew Jackson did. However, courts must exist to help protect our rights and ensure law and order in our constitutional republic. If a president could ignore the court’s rulings to protect the property rights of the Cherokee Indians, what’s to stop another president from pushing you out of your home? Kelo v. New London has outraged constitutionalists for nearly twenty years because of its broad overinterpretation of the Fifth Amendment takings clause. Those complaints would fall on deaf ears if one were to champion Andrew Jackson’s brazen defiance of the Supreme Court.
The rogue dismissal of judicial rulings cannot be the one-size-fits-all response to judicial tyranny. When conservatives had no power in Congress or the White House, we relied on the Supreme Court to thwart Joe Biden’s unilateral student loan cancellations or his unconscionable vaccine mandates. We need courts to step in and defend our constitutional rights, too. Those checks and balances make a difference across the board, so when it comes to judicial defiance, we must tread carefully.
So, what is to be done?
Impeach the bad judges? Congress should do it. The Republican U.S. Senate majority will follow through, unlike the previous Democrat majority, which dismissed the charges against former Secretary of Homeland Security Alejandro Mayorkas on a hollow pretext. The House should impeach multiple judges at once, and the U.S. Senate should hold one trial for every group of judges impeached over each set of bad rulings (immigration, executive authority, etc.) for maximum effect with minimum interruption for Congress’s other business. Our elected officials still need to finish the wall, eliminate entire departments, enact tax reforms, restore constitutional liberties, and finish the rest of President Trump’s agenda, after all!
Echoing Florida Governor Ron DeSantis’s criticism, Congress should limit the jurisdiction of the courts. Foreign nationals shouldn’t have a day in court at all, for starters. Why do they get to tie up our courts for any reason? Furthermore, district courts need to stay in their lane and limit their holdings to their jurisdiction. If litigants want a national injunction, then they need to argue before the DC Court of Appeals. Finally, Congress should also consider jurisdiction stripping.
Some would counter that those reforms would require 60 votes in the United States Senate. Why not cut funding from the courts to pressure judges into picking their battles with more propriety? That needs only 51 votes. However, legitimate cases would also suffer delays.
In his best move on the matter, President Trump has instructed the Department of Justice to demand legal challengers post bonds when they file for injunctions. “You want to delay MAGA? It will cost you!” This move, long rooted in our Anglo-American legal tradition, could force progressive legal activists to limit their legal extortions.
Yet a larger issue remains: how should we determine and enforce constitutionality in the first place? Who should decide if, not just “how should we respond to,” a federal court is stepping out of line, defying the United States Constitution? Is it time to overturn Marbury v. Madison altogether? Citizens need to regroup and recoup their God-given authority to uphold the Constitution rather than relying on courts to do the fighting for them. This is the battle of the Republic that we have long awaited. We need to engage with greater reflection.
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Arthur Christopher Schaper is a blogger, writer, and commentator on topics both timeless and timely; political, cultural, and eternal. A lifelong Southern California resident, Arthur currently lives in Torrance. Follow his blogs at The State of the Union and As He Is, So Are We Ministries.
The advantages the Judiciary and Federal Judges have enjoyed for over two hundred years is based on incremental overreach that began with the Marbury v. Madison Decision. They were never stopped along the way.
The Constitutional Framers attempted to design a Republic with three branches of government as equal knowing that the ‘Separation of Powers’ concept, as advanced by Montesquieu, was likely the only way to prevent a republican government from becoming more powerful than a king or an oligarchy of despots. The concept was to have them jealousy advancing and guarding their governmental roles and duties from each other – to be forever watchful regarding infringement attempts. But they also understood that just as it is impossible for siblings and genders to be equal in every capacity some inequality would pop up from time to time. They also knew, as evidenced from their writings, that the Judiciary had to be the weakest of the three branches. Why? Because it was composed of members which were unelected.
The fact that there were never justices so radical as there is today allowed the other branches to function relatively unimpeded for a very long time; hence the government pretty much operated as intended. They never had to deal with installed interlopers that were hostile to the Constitution and the Bill of Rights. Consider that Justice Ketanji Brown holds the same philosophical beliefs that AOC does. Was that what the Framers had in mind to provide Constitutional opinions?
What the District Courts are doing to the Chief Executive is no different than what local mayors and state governors are doing to the SCOTUS, the Constitution and, specifically, the Supremacy Clause. They don’t have that power and furthermore neither does the SCOTUS when it comes to forcing the Legislature to rescind unconstitutional legislation or forcing the Executive to not do what they deem to be unconstitutional. They are, for all intents and purposes, advisors for the other branches and in a culturally civil society their advice should be honored and a course correction instituted. However the Judiciary is powerless to enforce their opinions. In fact the Chief Executive cannot often wait on such opinions and especially since action is required well before the time required for lowest court decisions to trickle up to the SCOTUS. Our government worked, reasonably well, before the three branches were deliberately invaded so as not to make it work as intended.
John Roberts heads an activist Court. Why do I say that? Because he twice jumped into the pleadings when it came to the ACA but stepped out of the way when it came to a fraudulent national election and an invasion by foreign nationals. Both times, in my opinion, he demonstrated, based on technicalities, that he wanted to preserve and continue enjoying his social lifestyle afforded by living among liberals in Washington DC where over ninety percent of the time the local population votes for Democrats. That is why the Framers also considered that the judiciary, that they never fully trusted, to be the weakest branch having only an advisory role. They would never want a powerful judiciary, which cannot be voted out, to remain in power for the lifetimes of the appointed justices. The only remedy would be to ignore them or impeach and remove them. The former method is the most immediate and in these times of crisis, actually aided by rouge justices, also the most sensible. The Founders would approve and remind us that that is what they expected. No Amendments or legislation are required.
This is really rich. Right above this article is a headline that California will be suing the US to enjoin the deployment of the National Guard. They will no doubt find some radical lefty district court judge to issue such an order. Is Trump going to comply with it?
How about a quick thought experiment? Suppose China decides to invade the Philippines. President Trump decides to send a carrier group and other military assets to engage them militarily. Then, some puny leftist judge grants standing to a crackpot peace group and orders the President to recall the military. Would Trump comply with such an order?
This California suit is a very short step from my hypothetical. President Trump’s foolish complying with all of the prior orders against him has encouraged this nonsense. He had better use this opportunity to choke it off now. If he can’t find it in himself to ignore these hack judges, he might as well resign.
Your hypothetical is one of many that illustrates the author’s rationale. Everything about what is being done is irrational except for the one rational caveat that should not be a caveat. The President has to do the Constitutional thing. In fact he is mandated by the oath he took to do it.
Nothing in the Constitution requires the President to comply with orders of the lower federal courts. They are not even mentioned in the Constitution. Nor does the Constitution require the President to comply with orders of the Supreme Court. The Executive Branch has lawyers that are just as smart, or smarter, and just as well-trained. If they disagree with the Supreme Court, which can mean disagreeing with just five of the justices, the President can go that way. It’s happened several times in our history. It doesn’t create a ‘constitutional crisis.’ It creates a political issue that the Constitution provides means to resolve.
Now you sound like my echo. Well said.