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Is Trump Destroying or Restoring the Constitution?
We have watched the skirmishes that have erupted between the judiciary and the executive branch, particularly since Trump’s election. Those battles have escalated to a full-scale war with unelected partisan judges who refuse to let President Trump govern this country. Although this looks like a war between the president and the courts, it’s really about the Left vs. the Right. And the Constitution is caught in the middle.
Destroying the Constitution
The Progressives, especially under President Woodrow Wilson, have a long history of compromising and misinterpreting the Constitution to meet their own agendas:
Progressives demanded that Congress delegate its lawmaking authority to supposedly ‘neutral’ and ‘apolitical’ experts. They then sought to shelter these professionals and technicians from the play of raw democratic forces by providing them with robust protections against presidential removal. Progressives take not as a flaw but as a positive design feature the ability of these independent agencies to subvert a presidential agenda and frustrate the majoritarian preferences that lie behind it.
When we study the actions of the judiciary carefully, the political Left claims that Trump is creating a constitutional crisis; in fact, the crisis is an ideological one. The term “constitutional crisis” is meant to cause alarm, not define the facts of what is occurring. From John Yoo, former U.S. Assistant Attorney General:
‘I confess that I have no clear definition of a constitutional crisis,’ he said, adding that he does have clear ideas about what is not a constitutional crisis:
‘It cannot just be a disagreement over the meaning of the constitution. It cannot be just a fight between the branches of government. … Not only do we have these conflicts all the time, but the Framers designed the separation of powers — according to James Madison — to encourage the three branches to fight.’
Yoo, currently a visiting scholar at the University of Texas at Austin, sees it differently, and told me claims of a constitutional crisis today ‘are examples of the hyper-partisan policies of our time than any real assault on the Constitution.’
What is actually going on? The judges are ruling in ways that deliberately hamstring the president:
Whether it’s U.S. District Judge James E. Boasberg attempting to block the Trump administration from deporting suspected illegal alien gang members to El Salvador under the Alien Enemies Act of 1798, or U.S. District Judge Ellen Lipton Hollander blocking the Department of Government Efficiency (DOGE) from accessing Social Security Administration data, federal judges have repeatedly stepped in to undermine executive authority.
[snip]
America increasingly lives under a Judicial Oligarchy, where the district court system that functions below the Supreme Court has assumed power far beyond its intended limited role, subverting the executive and legislative branches to impose a policy agenda dictated not by elected representatives but by unelected judges
Can we expect the Republicans in the Senate to stand behind Trump, or will they cave in to the activist judges? Chuck Schumer weighs in:
Senate Minority Leader Chuck Schumer told the New York Times that the question of whether Trump defies courts is what wakes him up at ‘2, 3 in the morning.’
‘I believe Republican senators, on this issue, will stand up,’ Schumer said of a handful of his colleagues on the other side of the aisle. ‘About five or six have said publicly they will work to uphold the courts, and to uphold the law if Trump tries to break it. And we can do that legislatively if we have to.’
Except Congress has done absolutely nothing to clarify the situation.
Progressives continue to use legal terms to criticize Trump:
It is, of course, too early to offer definitive verdicts, but the first few weeks of the Trump administration may well constitute the most severe attack on the rule of law in the United States since confederate armed forces began lobbing artillery shells into Fort Sumter in 1861. Aided by a supine Congress dominated by his own political party, a determined president—with a long track record of disrespect for the law and the judicial system—is attempting to enhance his own power by upending institutional arrangements outlined in our Constitution and gradually constructed over the course of many decades.
These attacks focus on the dislike for Trump and his agenda, rather than basing her arguments on facts. Aside from the author’s use of hyperbole, comparing Trump’s actions to the South in the Civil War, no evidence is given that he has attacked the rule of law. He hasn’t shown disrespect for the law, but only for the attorneys and justices who have practiced lawfare. And in fact, he is trying to re-establish the meaning of the Constitution that the Founders intended. Since his approach is unconventional, the progressives insist he must be wrong.
Restoring the Constitution
Given that the lower courts are trying to distort the Constitution to meet their agenda, here’s what Trump is trying to do to restore the Constitution. Insisting that agencies are not independent and are subject to his management is one strategy:
A Supreme Court rejection of independent agencies would mark an enormous shift of power away from the administrative state and back into the hands of the president. It would restore political accountability for public policy choices to the elected branches. And it would bring the dominant understanding of the executive power closer to the constitutional text and the prevailing understanding of the Founders.
The federal bureaucracy often resists the wishes of the president and Congress — and may do so by progressive design. Agencies can refuse to carry out presidential directives: They can slow-walk regulatory initiatives, they can conceal important information from the White House or presidential appointees, they can carry out operations that they keep ‘off the books.’ This friction, which makes it hard or even impossible for a president to carry out his agenda, is intensified when the agency is headed by a leader or board that has no fear of removal.
Meanwhile, a rule called Humphrey’s Executor has unconstitutionally limited the power of the president over the heads of agencies:
Humphrey’s Executor has not stood the test of time. In Seila Law v. Consumer Financial Protection Bureau (2020), the Court held that Congress could not vest the power to enforce the laws in the hands of a single agency head who is protected from presidential removal. The Court wrote:
In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead . . . While we have previously upheld limits on the president’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power.
President Trump must continue his work to restore the Constitution, in spite of the pushback from the judiciary:
If the deliberate legal obstruction of Trump’s presidency continues without significant pushback, either by winning legal appeals, impeaching partisan justices, eliminating some federal courts, openly defying court orders, or the Supreme Court granting the Trump administration’s request to narrow the scope of the district court injunctions, the judiciary will effectively cement itself as America’s unelected ruling class.
Trump is simply trying to take back our country. He must be successful.
[Originally published in American Thinker]
Published in Domestic Policy
The Democrats are defending the power of federal district court judges (not mentioned in the Constitution) to unilaterally overrule the President (who is Article 2 of the Constitution). To say otherwise is a threat to the Constitution.
Nah. That boat won’t float.
Exactly right.
First and foremost in the progressive agenda, no matter what the cause or program is called, is to advance their power and control. Nothing is more important. Anytime they speak about “saving our Democracy”, they are only attempting to increase their power. The progressive could not care less about “Democracy” or our Constitution.
Nice try, no prize, right?!
It won’t float if Trump doesn’t let it. Very early after the midterm elections, if the abuse of power exhibited by Federal District judges is not reined in by the Supreme Court, Trump will have to stop playing games and deny the authority of these decisions.
He’s not denying their rulings to play games; he’s taking that approach because to do otherwise would be illegal. My hope is that SCOTUS is going to act on some of the appeals submitted as emergencies to set the standard and stop their actions. Whether other judges will take a given ruling to heart is unclear.
I am not certain that “doing otherwise” is illegal because I am not certain that a Federal District judge has the authority to issue a nationwide injunction. I have not read the congressional law that created the system of Federal District judges.
If Roberts grows a spine, the Courts will clearly allow the political branches to answer political questions.
My understanding is that so far, they aren’t prohibited from making universal injunctions. That’s why I say SCOTUS needs to speak up. It’s also possible that Congress can take action to stop them.
I’m sure the judges would be happy to decide that any Congressional interference in their powers is “unconstitutional.”
Mark Levin pointed out in a recent rant something I believe to be relevant. He stated that if a circuit appeals court makes a ruling, it applies only within that circuit. If a different circuit court makes a contradictory ruling, the issue is settled at the SCOTUS. Now, if a circuit court ruling by a majority of judges is limited in scope, why should anyone respect the “nation-wide injunction” issued by a single district judge? Maybe in his district, but nation-wide?
Exactly. I also wonder why Trump & Assoc aren’t doing the same judge shopping for a conservative Federal District judge to overrule any previous injunction or otherwise rule to the contrary of the incalcitrant leftist judges. Wouldn’t contradictory rulings force the issue to the Supreme Court?
I watch Levin, too. I assume that no one knows how to stop them. Yet. I think Jim Jordan said on Levin’s show that Congress is going to try to stop them. We’ll see. What if they ignore Congress?
Yep, something I pointed out on Ricochet some time ago.
Another complication, which I addressed but don’t know if Levin did: If a single District Judge issues a nationwide ruling, and the Circuit Court which that district is in, reverses it, does that only reverse it in that circuit, but not the rest of the country which the District Judge thought he could control?
It’s a sort of Bizzaro World.
This road goes in both directions. If the judges ignore Congress, then Trump ignores the judges. Who was that President that ignored the Supreme Court twice in rulings against him? I think his nickname was Sleepy.
He didn’t address it, ke. Good question!
The first might have been Andrew Jackson. There are multiple accounts, but he supposedly said, “The court has found. Now, let it enforce.” It pointed out that courts, up to and including the SCOTUS, can’t force a President to do anything without full support from Congress.
It’s a strange type of hash if the Circuit Courts only have authority within that Circuit, but they’re “over” District Courts who think they have nationwide power.
While I think nationwide district court injunctions are wrong, I believe they mostly arise where a federal agency is the enjoined party.
If the court is convinced the agency action complained of is most likely illegal and if the party seeking the injunction meets the criteria, then the court thinks it needs to halt that agency from acting contrary to the injunction anywhere where the agency can act, i.e., nationwide. At least, that is the only rationale (other than bare naked power politics) that makes any sense of them to me.
The courts will not save us, but left unchecked will destroy us — or at least that which I regard true Americans most value: true and valid consent of the governed, equal protection of the law, respect for unalienable rights, subsidiarity.
But that doesn’t seem to extend to the Circuits. And if that’s the case, why wouldn’t it?
@susanquinn I also think that this phrase “unelected partisan judges” is inflammatory and uncalled for. Why? Because each of them reached the federal bench in exactly the manner called for by the Constitution. The elected President nominated them and the elected members of the United States Senate confirmed them. Don’t say you’re trying to “restore” the Constitution and at the same time attempt to undermine the actions of Article III judges. They aren’t elected because the founding fathers didn’t want them to be another political branch.
But that doesn’t prove they’re correct, or even smartly wrong.
And indeed, they ARE another political branch. Once removed, or something.
Here is a direct quote from Chuck Schumer. It speaks for itself.
What Mr. Justice Talk Show Host fails to expound on is that there are 94 District Courts, and therefore potentially 94 different interpretations and administrative restrictions on any given federal action. That’s why stays on the court’s own rulings or temporary injunctions against the government are so common.
Decisions of the District Courts are appealed to one of the 13 Circuit Courts. District court decisions are only considered persuasive to other courts. District court decisions are considered binding. Get two Circuit Courts to contradict each other and you get a road to SCOTUS.
Now you might ask, why not go directly to the Mighty Nine? That’s because Article III limits original jurisdiction of the Supreme Court to certain types of cases. All other cases must begin in the inferior courts. And Congress may not expand SCOTUS’s original jurisdiction. That needs an amendment.
SCOTUS is not going to short circuit the appeals process.
And conservatives absolutely do the same type of judge shopping. The Northern District of Texas in Amarillo is the Buc-ees of nationwide injunctions for the Right.
Yeah. Well, back when we were a conservative party that celebrated checks and balances we understood that. But that’s before we demanded both Congress and the courts to become Trump’s rubber stamp
“Considered binding” by whom? And why beyond their district?
The Circuit Courts of Appeal are only appellate courts. They do not have original jurisdiction or the power to grant or withhold extraordinary relief (which an injunction is, by definition). The lower courts are fact-finders, but the appellate courts are stuck with the facts as shown in the record. Their purview is to review the actions of those District Courts that come up to them, testing for legal error, and then decide if such error is harmless or not. Their choices are to affirm the lower court, reverse the lower court and send the case back with guidance for further proceedings, or entry of a final judgment and telling the lower court to finalize that judgment.
Until the Supreme Court (or Congress by legislation) says the reach of a District Court injunction is limited to that district, these trial judges will feel empowered to enter injunctive relief whenever they find it merited, rightly or wrongly.
“progressive judges” attempting to expand their legitimate role. Who checks and balances them? If the executive chooses to ignore them occasionally, it will not end well.