There's been an event that occurred since this was originally published. And it's big.
Real constitutional crises are relatively rare in American
history. In 1803 Chief Justice John
Marshall could have sparked one with his decision in Marbury v. Madison
where he deftly asserted that the Supreme Court had to power to invalidate laws
or actions it saw as unconstitutional. The main reason that that assertion didn’t
cause a crisis in the fledgling nation was the fact that it came in a decision
that supported the position of the Jefferson administration, and as such they were
not inclined to protest.
Then of course there was FDR’s Court
Packing scheme in 1937. In 1936, in the
face of continuing 5-4 decisions going against his New Deal legislation FDR’s
Attorney General, Homer Cummings proffered an idea penned by one of his
predecessors in 1914, James Clark McReynolds, that for every justice over 70 a
new justice should be appointed. Ironically, in 1936 McReynolds was a 75 year
old Associate Justice on the Supreme Court.
FDR’s legislation died in committee but it would likely not
have survived even if it had made it out of committee as it faced a great deal
of bipartisan opposition. But then it didn’t really matter because Justice Owen
Roberts, who had been a thorn in the side of much of the New Deal legislation
joined the liberals in upholding West Coast Hotel Co. v. Parrish in 1937 and
became a relatively reliable New Deal supporter going forward. History calls that vote the “Switch
in time that saved Nine” but the timing doesn’t quite line up. Although the decision was handed down in
March of 1937, it was argued in December of 1936 and Roberts had made his
decision before FDR’s plan became public.
That doesn’t mean however that the supposition that Roberts changed his
voting pattern due to external events was wrong. It just means that the timing doesn’t allow
for a quid pro quo.
Crisis might not be the right word in either of those
situations because, despite their long term implications for the government, neither
imminently threatened the functionality of the government. It most certainly is
the right word for what America and the Trump administration is facing right
now, and indeed it imminently threatens the functionality of the
government.
The Trump administration has faced an unprecedented number
of nationwide injunctions from federal courts on a wide range of issues from
deportations to firings of federal employees to paying
for sex change surgeries for military members and more.
It seems as if across the country and in virtually every
area of government federal judges have suddenly decided that their role is to
micromanage every element of the Executive branch. The first Trump
administration faced an unprecedented number of injunctions and the first five
months the second has faced even more.
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By continuing to face this crisis with appeals to higher
courts, the president is bringing a knife to a gun fight. He should instead
bring a howitzer. He should make it clear that his administration does not
recognize these courts’ power to issue nationwide injunctions and they will no
longer be recognizing them as legal.
Tucked away in the bowels of the travesty that is the Big
Beautiful Bill is one golden
nugget that attempts to obviate the problem. It states that courts cannot use appropriated
funds to enforce contempt citations for failure to comply with injunctions or
temporary restraining orders. That’s an
interesting strategy, but it’s a band-aid approach to an artery that’s been
cut. It still leaves the option for
courts to continue to micromanage policy from the bench and simply include the
funding caveat in the orders themselves or otherwise find funding sources for
enforcement.
No, the president needs to face this crisis head on and make it perfectly clear
that the courts are acting unconstitutionally and he will no longer be bound by
them.
The obvious consequence of this policy will be the gnashing
of the teeth of the left and much of the swamp infested GOP. “Tyrant” they’ll call him. “Dictator” they’ll brand him. “He thinks he’s a king” they’ll claim. But, frankly, there’s nothing new in any of
that.
But beyond the shrieking however, something more substantial
will result of the administration’s new clarity. It will force Congress and or the Supreme
Court to act.
The reality is, there
is no basis in the Constitution for these nationwide injunctions and courts
playing the role of executive. These rouge courts have undermined the
legitimacy of the judicial system and with it the larger government as a
whole. Once the administration makes it
crystal clear that they do not recognize the legitimacy of these rouge courts
Congress or SCOTUS will have to step up and provide clarity. Whether legislative action by Congress or
direction from SCOTUS, something will have to be done to begin to repair
American’s confidence in the judiciary.
And that’s actually quite important in a nation of laws like
the United States where citizens are largely free and most obey laws because
they respect the legitimacy of the government. If that legitimacy is undermined
then social order follows suit. Look no
further than cities across the country where the police have been demonized and
local governments operate like banana republic grift machines. Crime and
corruption are rampant as law abiding citizens and for profit businesses
abandon them for safer, more functional environs.
The ideal solution is Congress passing legislation that
makes explicit that lower courts have no jurisdiction beyond the immediate
cases before them and cannot impose injunctions beyond those specific
cases. This clarity would at a minimum put
an immediate end to the tyranny of unelected judges seeking to elevate
themselves above the Executive. More broadly it would return to the political
realm the work of legislation and policy implementation. No more would plaintiffs who represent a
sliver of the population or hold views far outside the Overton Window be able
to venue shop for extremist judges and use the court to impose their ideas on
the entire nation. There’s nothing wrong
with being a sliver of the population or having ideas outside that window, but
the place to debate ideas is in the public square, not the dark corners of
judicial chambers.
This crisis exists today because the left has moved so far
to the fringe of society that they can no longer convince Americans to vote for
their positions at the ballot box. But
that’s where the Constitution says they should be debated. If President Trump wants to have any chance
of a successful second term he will force Congress’s hand and explain to the
American people why he’s doing it.
Follow me on X at @ImperfectUSA
First published on June 10, 2025
https://thefederalist.com/2025/06/10/trump-should-force-congress-and-scotus-to-stop-rogue-judges-by-ignoring-unconstitutional-injunctions/
