For nearly a decade, Democrats have campaigned on little more than the message that President Donald Trump is Adolf Hitler reincarnated. Although Trump won both the electoral and popular votes in November, effectively having been given a mandate from the American people to govern the nation, the old cries of “Dictator!” may soon be heard again from the progressive corners of the nation — unless the U.S. Supreme Court steps in and averts a rapidly approaching constitutional crisis.
As this writer previously noted, Trump was elected in order to carry out the agenda that he promised he would: gutting the swollen federal bureaucracy, eliminating the waste and fraud plaguing the American taxpayer, ending the woke stranglehold suffocating key federal institutions, and initiating the mass deportation of millions of illegal immigrants who have violated the laws and disregarded the sovereignty of the United States of America.
However, a spate of unelected, largely-partisan federal judges — almost exclusively at the district court level — have issued sweeping restrictions against many of the president’s executive orders and actions. Some recent examples include a U.S. district court judge halting the Trump administration’s virtual shutdown of the U.S. Agency for International Development (USAID), another district court judge blocking the Environmental Protection Agency (EPA) from reclaiming roughly $20 billion hastily spent by the previous administration on climate hysterics, and yet another district court judge preventing the U.S. military from barring transgender-identifying individuals from enlisting, citing the musical “Hamilton” in her order.
One of the most egregious examples of this recent judicial overreach came when District Court Judge James Boasberg issued a temporary restraining order demanding that U.S. planes deporting 250 members of the criminal terrorist organization Tren de Aragua return the violent gang members to the U.S. In concert with his top immigration advisor, White House Deputy Chief of Staff Stephen Miller, Trump had invoked the Alien Enemies Act of 1798, a war-time measure allowing the president to arrest and detain or deport any male over the age of 14 who comes from a foreign country which has been designated an enemy. The Alien Enemies Act has actually been used on several occasions throughout U.S. history, including during the War of 1812 and both the First and Second World Wars.
Miller and the White House have spent the past several days defending the president’s use of the Alien Enemies Act — which Trump pledged on several occasions to invoke while campaigning. In an interview this week, Miller took a particularly strong stance against Boasberg’s ruling, explaining, “The Alien Enemies Act, which was passed into law by the founding generation of this country — men like John Adams — was written explicitly to give the president the authority to repel an alien invasion of the United States.” He continued, “That is not something that a District Court judge has any authority whatsoever to interfere with, to enjoin, to restrict, or to restrain in any way. … There’s not one clause in that law that makes it subject to judicial review, let alone District Court review.”
The Alien Enemies Act, which is part of Title 50 of the U.S. Code, explicitly bars federal courts from curtailing the president’s use of the Act. In fact, Title 50 § 23 addresses the jurisdiction which federal courts do or do not have over the president’s exercise of Title 50: federal courts are allowed to detain or deport “any alien enemy resident” within their jurisdiction or district, even if the president’s terms for invoking the Alien Enemies Act does or would exempt that individual from detainment or deportation. What a federal court is most certainly not allowed to do, according to the clear terms established in Title 50, is prevent the president from invoking the Alien Enemies Act or rescind his proclamation of invocation. “Under the Constitution, who makes that determination? A district court judge elected by no one? Or the Commander in Chief of the Army and Navy?” Miller asked regarding the Alien Enemies Act. He answered, “The president and the president alone makes the decision of what triggers that.”
Since then, Miller has continued to warn of the dangers posed by an unchecked, unelected cabal of partisan judges who are empowered to effectively shape — via restrictive court order — the policy of the executive branch of the federal government and prevent the administration from enacting the policy that the American people overwhelmingly voted for. “There are nearly 700 unelected district court judges. If the most extremist of these judges on any given day decides he is in charge of the executive branch then Article II, democracy[,] and government itself cannot function,” Miller observed in a social media post.
He added, in another post, “Currently, district court judges have assumed the mantle of Secretary of Defense, Secretary of State, Secretary of Homeland Security[,] and Commander-in-Chief. Each day, they change the foreign policy, economic, staffing[,] and national security policies of the Administration.” He warned, “It is madness. It is lunacy. It is pure lawlessness. It is the gravest assault on democracy. It must and will end.”
This is where the U.S. Supreme Court comes in — or, rather, where it should come in but has so far refused to. As The Washington Stand previously reported, the Trump administration asked the Supreme Court to intervene in a case where a district court judge forced the administration to pay $2 billion, erroneously labeling his order of compulsion as a temporary restraining order. The Supreme Court refused to intervene in the matter, accepting, as did the U.S. Court of Appeals for the District of Columbia, the district court’s temporary restraining order “at face value,” as Supreme Court Justice Samuel Alito put it in a scathing dissent. “Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” Alito asked, in his dissenting opinion, with which Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh joined. He continued, “The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned.”
The justices’ majority in rejecting the Trump administration’s petition was comprised of Obama appointees Elena Kagan and Sonia Sotomayor, Biden appointee Ketanji Brown Jackson, Trump appointee Amy Coney Barrett, and Chief Justice John Roberts, who was appointed by George W. Bush. The fact that Roberts sided with the Supreme Court’s left-leaning trio (Kagan, Sotomayor, and Jackson) is not much of a surprise, as the nominally conservative jurist has sided with the court’s more liberal wing on numerous occasions, seemingly in an effort to maintain some form of consensus. What was only slightly more surprising was that Roberts publicly rebuked the president for calling for Boasberg’s impeachment.
Following the district court judge’s order demanding that hundreds of already-deported terrorists be returned to the United States, Trump suggested that Boasberg should be impeached. “I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” the president declared over Truth Social.
In a relatively rare public statement, Roberts replied, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” He added, “The normal appellate review process exists for that purpose.” This is, once again, not the first time that Roberts has seemingly been at odds with Trump, although his public statements on such subjects are a relative rarity. In 2018, after Trump disparaged a federal judge as an Obama appointee, Roberts told the media, “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Of course, the recent rash of overreaching temporary restraining orders and the years-long partisan lawfare campaign aggressively waged against Trump stand themselves as rebukes against Roberts’s 2018 claim. While “Bush judges” and even “Trump judges” may not see themselves as levers of power for one ideological faction over another, “Obama judges” and “Clinton judges” — and especially Biden judges — are largely blatant activists. Therein lies a crucial part of the problem: if the president is to do his job and carry out the agenda that the American people elected him to carry out, then he cannot be hampered by activist judges who are willing to bend, misconstrue, reinterpret, and misinterpret the very U.S. Constitution which they were sworn to uphold.
Trump has a very limited period of time in the White House, a very limited period of time in which to enact his agenda; he should not have to waste months or even years working his way through a federal court system at least partly run by the very activist judges erroneously and (in many cases) disingenuously thwarting his executive efforts in the first place. As, once again, Miller noted, “Unelected rogue judges are trying to steal years of time from a 4 year term. It’s the most egregious theft one can imagine: robbing the vote and voice of the American People.”
Yet Roberts is unwilling to intervene. While his siding with left-leaning justices is par for the course and his public rebukes of the president are not thoroughly shocking, his refusal to intervene is something of a surprise. Despite numerous decisions Roberts has made (some of which he has himself authored) that have disappointed conservative Americans, he has long been a strong and clear proponent of the separation of powers.
One of his most consequential rulings, in Trump v. United States, is typical of the Chief Justice’s bent for preserving not only the integrity and power of the federal judiciary but the integrity and power of the executive branch of the federal government too. In that case, Roberts penned a landmark opinion defending the core constitutional duties and powers of the presidency, clarifying that a president is entitled to absolute immunity for any of his actions which fall within the scope of his core constitutional duties and powers, as delineated in Article II of the Constitution, and is entitled to presumed immunity for all of his official acts.
“Appreciating the ‘unique risks’ that arise when the President’s energies are diverted by proceedings that might render him ‘unduly cautious in the discharge of his official duties,’ the Court has recognized Presidential immunities and privileges ‘rooted in the constitutional tradition of the separation of powers and supported by our history,’” Roberts himself wrote in July. He continued, “Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.” In other words — again, as Roberts himself noted — there is a fundamental urgency inherent in the office of the president and the president himself is empowered by Article II of the Constitution to make bold decisions for the good of the nation. When it comes to the exercise of his core constitutional duties and powers as established in Article II, the president should not be able to be enjoined nationwide by activist judges who are, frankly, acting outside their jurisdictions.
This line of reasoning is one which Roberts should readily reach, particularly given his robust defense of the executive branch and the separation of powers over the course of his jurisprudential career. Yet he has still declined to intervene in these urgent cases wherein the Trump administration has sought the Supreme Court’s ruling. The very fact that Trump and his White House officers have repeatedly beseeched the Supreme Court for relief is demonstrative of the fact that the president will abide by the Supreme Court’s decision, as he has numerous times in the past.
As recently as this week, Trump insisted that he does not, at present, intend to openly defy court orders. “You can’t do that,” he said, affirming that he expects the Supreme Court to make a just and reasonable decision, once his cases reach that level. That is, of course, if one of Trump’s numerous petitions is taken up by the Supreme Court. Thus far, the record reflects that Roberts and Barrett, at least, are not inclined to allow the president to make his case. But the refusal of the justices to act may precipitate a constitutional crisis on a scale not seen in the U.S. in over 160 years.
Should the Supreme Court refuse to examine the question of whether activist judges are maliciously — and, more than likely, unlawfully — stepping outside their jurisdictions to bombard the Trump administration with a bevy of temporary restraining orders, preliminary injunctions, court orders, and other such, the president will be faced with a gravely difficult decision.
On the one hand, in the absence of Supreme Court intervention, the president could simply waste the next four years attempting to battle these multitudinous court orders, effectively allowing unelected activist judges to throttle the executive branch of the federal government. He may prevail in a Court of Appeals or even at the Supreme Court, but by the time the cases are litigated, argued, decided, and appealed over and over again, Trump will be on his way out of the White House, having achieved very little of what he was elected to achieve. In essence, national policy for the next several decades will be shaped not by elected officials, but by a judicial mafia appointed by agenda-driven Democrats in the first quarter of the 21st century. More crucially, the judicial branch will have managed to subdue the executive branch, shattering that barrier hailed as the “separation of powers” and choking the vitality and potency from the presidency. Such a situation would, clearly, be a constitutional crisis, and even the oft-assailed authority and legitimacy of the Supreme Court may not prove a strong enough force in such times to check the power-snatching of the district courts.
On the other hand — again, in the absence of Supreme Court intervention — the president may choose to continue exercising the powers clearly granted to his office in Article II of the Constitution, even in seeming defiance of the lawless orders of activist judges. There is a dangerous sort of precedent for such a course of action, no doubt made all the more appealing to a man of Trump’s character by the “Great Man of History” theme associated with it. President Andrew Jackson’s infamous line, “The Chief Justice has made his ruling. Now let him enforce it,” comes readily to mind, as does Napoleon Bonaparte’s maxim, “He who saves his country violates no law,” which Trump himself recently quoted. Following such a course of action, the president would be flagrantly violating the letter of the law, as contained in the host of court orders assailing his administration, but would still be able to present a strong case for upholding the law and saving his country. This, too, would be an obvious constitutional crisis and would certainly see a resurgence of wailing progressives crying, “Dictator!” and “Hitler!”
The Founding Fathers designed America’s federal government — and the crucial separation of powers — in such a way to ensure that no one state and, even worse, no one man could force his will on the entire nation. Yet that’s exactly what these unchecked activist judges are doing, defiling the very Constitution which they swore to uphold and corroding the nation they purport to safeguard. If the Supreme Court and the Chief Justice continually refuse to intervene, a constitutional crisis of near-unrivaled magnitude will decimate the nation. If Roberts continues rejecting the president’s pleas for order and clarity, then Jackson’s quote may be amended to read, “The Chief Justice has made his decision. Now let him live with it.”
AUTHOR
S.A. McCarthy serves as a news writer at The Washington Stand.
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