Judges Gone Wild is Not a Good Look For a Nation of Laws

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. 

It appears as the federal judiciary has declared war on the Executive Branch, and that is literally a constitutional crisis.

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/

The Imperial Judiciary Of The United States

 "Render unto Caesar what is Caesar’s, and unto God what is God’s…"

When Jesus was alive, the religious leader of Rome was, in fact, both Caesar and the voice of God, for Emperor Augustus had taken the position of Pontifex Maximus, the chief high priest, for himself.

A separation between church and state would occur in the late 4th century when Saint Ambrose, the Bishop of Milan, would cleave the two.

In 390 AD, in Thessalonica, a Macedonian city in the Roman Empire, the citizens murdered a Roman garrison commander for arresting the most popular Macedonian charioteer just before a major race. A seething Emperor Theodosius ordered his soldiers to slaughter the entire population. When the smoke cleared, 7,000 men, women, and children died in the Massacre of Thessalonica.

Ambrose, the most powerful man in Christianity at the time, banned the emperor from Mass. Theodosius I, an extremely devout man, would spend the next six months seeking Ambrose’s forgiveness and doing penance. Eventually, Ambrose decided the Emperor had shown sufficient contrition and allowed him back into the Church, but not before forcing him to make Christianity the official religion of the Empire and outlawing every other faith.

That was one of the first and most powerful checks on a monarch’s power in the history of Western civilization. Another would come in 1215 when English King John was forced by a group of rebellious barons to sign the Magna Carta, which provided protections for the church and guaranteed the barons a variety of liberties and rights.

Fast forward 562 years and another step towards a truly limited government would occur in Philadelphia in 1787. In an unprecedented advance for Western civilization and, frankly, humanity, the Founding Fathers wrote the Constitution of the United States. With a keen understanding of man’s nature, this document was sufficiently robust and prescient that it would last for centuries.

In a direct reaction to the English system, they wrote a constitution in which, while the primary power lay in the legislature, the power of all three branches was checked by the other two and ultimately by the citizens and the Bill of Rights.

To give some perspective on where the locus of power lay in the new constitution, compare the articles that define the powers of the three branches: Article I, the Legislature, has 2,268 words. Article II, the Executive, has 1,025 words, while Article III, the Judiciary, has a mere 377.

The Founding Fathers went to great lengths to divide the powers and put in place checks and balances so that mob rule and demagogues would not take hold of the government and bring about tyranny.

One of those checks was the Judicial Branch:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Alexander Hamilton assured all and sundry that the judiciary would be the weakest branch, writing in Federalist 81:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom.

He stated that a judicial usurpation of the legislature could not happen:

This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.

This, combined with Congress’s ability to impeach judges for judiciary encroachments, said Hamilton, would be sufficient to keep judicial usurpation from occurring. Hamilton was responding to the writings of Judge Robert Yates, who warned of a rapacious judiciary in Anti-Federalist No. 78.

Hamilton was wrong, and Yates was right. 

Within a very short time, Hamilton’s error and Yates’ prescience became clear. Marbury v. Madison established Judicial Review in 1803, taking for the Court the ability to invalidate a law it deemed in conflict with the Constitution. Although the court would use that power only twice over America’s first 70 years, it would do so 50 times over the subsequent 75 years and over 125 times in the last 90 years. That trajectory not only reflects the extraordinary growth in the areas of American life into which the leviathan of government has inserted itself, but it also reflects a far more activist judiciary.

And how can we tell? Look at nationwide injunctions. Judges issued six nationwide injunctions against George Bush over eight years—one per every sixteen months he was in office. Barack Obama was the subject of 12 or one every eight months. In Trump’s first term, judges issued 64 nationwide injunctions, or one every 22 days. After he left office, the courts retreated, with Joe Biden getting 14 or one every three months. Now, in his second term, Trump has received 12 in only six weeks; that is, one every four days. Meanwhile, in the single four-year period of his first term, he faced more of these injunctions than every president in the previous 60 years combined!

But the thing is, injunctions are found nowhere in the Constitution. Nonetheless, with almost 700 federal judges, activists can easily find fellow travelers who are more than willing to do their bidding. It’s no coincidence that the judges who have issued many of the injunctions against Trump’s executive actions have ties to hardcore leftists:

• The son of the judge who blocked deporting Khalil Mahmoud interned for Chuck Schumer.
• The daughter of the judge who blocked deporting Tren de Aragua gang members works for an NGO that provides legal advice to criminal illegal aliens.
• The wife of the Judge blocking the USAID shutdown worked for Joe Biden.
• The judge who blocked DOGE from cutting NGO funding was the Solicitor General of the District of Columbia, the office that filed a civil lawsuit against the Proud Boys and Oath Keepers.

Using injunctions, a radical leftist cabal is attempting to thwart President Trump from doing the job he was elected to do, which is to enforce and execute the laws of the United States. He should not allow them to do so. Unfortunately, impeachment is not the answer because there is zero chance of getting a conviction, with half the Senate applauding the judge’s actions.

The first thing Trump should do is ignore the order. This will force SCOTUS and/or Congress to act.

The second thing he should do is strongly encourage Congress to act, regardless of what SCOTUS does. (Or doesn’t do given the Manchurians Roberts and ACB.) Congress has the ultimate constitutional power to define the courts’ jurisdiction, whether granting or restricting it. They should eliminate or restrict federal judges’ ability to issue injunctions in general or, at a minimum, prohibit nationwide injunctions.

The Founders created a system of checks and balances that has served America well for most of her history. But that system only works when the three branches remain true to their nature.

You can argue that Congress has given too much of its power to the regulatory state, but that’s a case of one branch willingly, if foolishly, ceding power to another. In the case of the Judicial Branch, we’re seeing something different. Activist judges across the country are asserting that they basically have the power to micromanage how the Executive Branch carries out its constitutional duties. They don’t, but that doesn’t matter if the Executive Branch allows it to become reality. And the reality is, they’re using Chief Justice Roberts’ treacherous “normal appellate review process” framework to run out the clock on President Trump’s term.  And Trump knows it.

In 1832, in reaction to Worcester v. Georgia, President Jackson is said to have announced: “John Marshall has made his decision; now let him enforce it!” Donald Trump should state unequivocally that he will not allow activists masquerading as jurists to hijack the proper functions of the Executive Branch. Americans, like Jesus, Ambrose, and Jackson did, understand there are separate realms of governing, and for good or bad elected presidents execute the laws, not judges.

Follow me on X at ImperfectUSA