A much-needed national debate about impeaching rogue judges has erupted over a federal judge’s order to return illegal immigrant terrorists and murderers to the American heartland — a power which, if exercised properly, holds the potential to restore constitutional government.
This week, U.S. District Judge James Boasberg, an Obama appointee, unsuccessfully ordered planes deporting Tren de Aragua gang members to be stopped in midair and returned to the United States. The ruling proved so outrageous that Rep. Brandon Gill (R-Texas) introduced articles of impeachment against Boasberg, and President Trump has led broader calls to impeach the “Radical Left Lunatic of a Judge.” Chief Justice John Roberts sharply responded that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” But America’s founders would disagree.
Boasberg is one snowflake in an avalanche of judicial activists waging lawfare against President Trump. At least 46 judicial opinions had enjoined the 47th president’s actions as of March 15, according to The New York Times, including:
- U.S. District Judge Ana Reyes, a Biden appointee who identifies as LGBTQ, overturned Trump’s executive order to preserve military readiness by disallowing most people who identify as transgender from joining.
- U.S. District Judge Lauren King, a Biden appointee, prevented Trump from shielding minors from transgender procedures, claiming his executive order violates the Fifth Amendment.
- U.S. District Judge Amir Ali, a Biden appointee, ordered the Trump administration to pay USAID grantees $2 billion.
- U.S. District Judge Julie Rubin, a Biden appointee, forced taxpayers to keep funding Department of Education grants funding DEI programs.
- U.S. District Judge William Alsup, a Clinton appointee in San Francisco, reinstated 24,000 fired federal employees at the behest of public-sector labor unions.
- U.S. District Judge Deborah Boardman, a Biden appointee, halted Trump’s executive order on birthright citizenship.
- U.S. District Judge Loren AliKhan, a Biden appointee, stopped the Trump administration from ending grants that promote DEI extremism and transgender ideology.
- U.S. District Judge Jamal Whitehead, a Biden appointee, insisted the United States cannot stop admitting illegal immigrants who abuse asylum status by posing as “refugees.”
The New Yorker summarized bluntly: “Judges Are Blocking His Agenda.” Call it the Legal Resistance 2.0.
America’s Black-Robed Oligarchy
Yet judicial activists are doing far more than opposing the president. Nationwide injunctions against legislation in effect reverse the basis of American government.
Monarchs and despots of old ruled their subjects by the code of Rex Lex: The king is the law.
The Founding Fathers waged the American Revolution to institute the principle of Lex Rex: The law is king. Democratically ratified legislation becomes legally binding even on the highest magistrate, in a reflection of the biblical concept that one law should rule all people.
But in current-year America, the reality is Iudex Rex et Lex: The judge is the king and the law. Nationwide injunctions, which are a controversial and relatively recent development, give every one of America’s 670 unelected district judges veto power over the nation’s elected representatives. Over time, judges’ temptation to impose their personal views has become irresistible.
When judges can impose their private opinions without reference to the Constitution’s fixed original intent, America has become a black-robed oligarchy. Thankfully, the Founding Fathers gave Americans the tool to regain their sovereignty over their government, the very process Trump mentioned: impeachment of rogue judges.
In her ruling, Reyes cited the musical “Hamilton.” But Lin-Manuel Miranda never wrote a rap paeon to Alexander Hamilton’s position on judicial impeachment (nor of the immigrant’s restrictive view of immigration). Like the other Founders, Hamilton believed Congress has the right to remove judges whose rulings violate the Constitution before they become “a permanent tyranny.”
Impeachment: The Constitution’s Self-Defense Mechanism
In an 1802 essay written under the pen name “Lucius Crassius,” Hamilton addressed concerns that activist judges could one day become a “colossal and overbearing power, capable of degenerating into a permanent tyranny, at liberty, if audacious and corrupt enough, to render the authority of the Legislature nugatory, by expounding away the laws, and to assume a despotic controul over the rights of person and property.” But Hamilton said the Constitution institutes “a complete safeguard” against such “a palpable abuse of power” in Article II, Section 4 of the Constitution: “the authority of the House of Representatives to impeach; of the Senate to condemn. The Judges are in this way amenable to the public Justice for misconduct; and upon conviction, removeable from office.”
Impeachment is the Constitution’s self-defense mechanism. Hamilton naively believed the threat of impeachment alone could stop bad judicial behavior. “There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations,” wrote Hamilton in Federalist No. 81. He once again referred to removing activist judges as “complete security” for American liberties.
But no security system works unless it is armed. And Congress has ceded much of its delegated powers to undemocratic commissions, federal regulators, and the ever-expanding encroachments of power-mad presidents and judges. (The fact that the Boasberg case involves a district judge enjoining an executive action demonstrates the growing irrelevance of Congress.)
Until the Left discovered it as a tool to overturn elections, impeachments had been rare. In America’s nearly 250-year history, “The House has impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet member, and three Presidents. Of these, eight individuals — all federal judges — were convicted by the Senate,” according to a 2023 Congressional Research Service report. (Since its publication, the House impeached Biden’s Secretary of Homeland Security, Alejandro Mayorkas last February over his refusal to secure the border.)
The exceptional nature of impeachment shows not only the Founders’ love of stability but also that the Supreme Court and the American people retained a largely Originalist constitutional orientation until just decades ago. A pivotal moment came in 1936, when FDR’s court-packing scheme intimidated constitutionalist Justice Owen Roberts into reversing his opposition to New Deal legislation, a change of heart history dubbed the “switch in time that saved nine.” Since then, all three branches of government have been free to expand federal power without proper constitutional restraint. Supreme Court justices now openly base their opinions on foreign law rather than the Constitution, e.g., in a notable case striking down a Texas law against sodomy.
The Left has since waged war on the ideology and legitimacy of the American project writ large. Destroying the image of America’s founders — and thus, the limits they imposed on government power — was the entire point of the 1619 Project.
Now, the culturally dominant liberals pressure judges to conform every opinion to the Left’s lone governing principle: Does it expand government power and further the social revolution? Hence, judges are good when they foist immorality on the American people by, for example, removing prayer and the Ten Commandments from public schools, or discovering constitutional “rights” to abortion and same-sex marriage. The Supreme Court became evil to the Left when it allowed the American people to halt the process democratically. This explains why liberals have no qualms opposing the impeachment of judges in one breath and trying to frame a specious “ethics code” as the first step to removing justices and packing (or “expanding”) the Supreme Court in the next.
Despite popular judicial impeachment efforts (such as that of the infamous Chief Justice Earl Warren), only in the second Trump administration does anyone seem poised to clean out the worst offenders. This escalation shows the American people realize that the last four years, to use the Left’s regnant phrase, were not normal. But that abnormality should also inform our qualified use of judicial impeachment going forward.
Judicial Impeachments Must Be Principled, Not Partisan
While the Founding Fathers held out impeachment, they assumed the vast majority of judges would faithfully serve the Constitution and the American people for life. They saw this as a major boon to the American people. Judges’ lifetime tenure gives them the “independent spirit” necessary to defy lawmakers, wrote Hamilton in Federalist No. 78. Courts, Hamilton wrote, must be free “to dispense the laws with a steady and impartial hand; unmoved by the storms of faction, unawed by its powers, unseduced by its favors.” Otherwise, the judiciary becomes “doomed to fluctuate with the variable tide of faction, degenerates into a disgusting mirror of all the various, malignant and turbulent humors of party-spirit.” Justices who bow to political pressure — like Owen Roberts in 1936 or John Roberts switching his Obamacare vote under pressure from the liberal media — degrade the American people’s liberties.
If wrongly pursued, the potent tool of judicial impeachments can undermine national stability. It is fitting the Boasberg ruling involves one of the infamous Alien and Sedition Acts. The Adams administration’s only use of the laws came in prosecuting journalists who belonged to the other party. In many ways, the Alien and Sedition Acts were the original weaponization of government that set the tone for all future efforts. The Left has certainly never had any trouble accusing the president and his supporters of “sedition.” (The Alien Enemies Act was the only one of the four laws with a legitimate purpose.) It is hardly a stretch to foresee the mass impeachment of constitutionalist judges by a Democratic Party that cheers on the full disbarment of Trump lawyers and fantasizes about rendering Trump voters unable to earn a living.
To properly restore our government, the American people need both civic revival and spiritual revival. The necessary use of judicial impeachments cannot be based on politics or the political popularity of any one leader. Impeachment must be principled, not partisan. Judges must be appointed or removed based solely on their fidelity to the original intent of the U.S. Constitution as written. This must be accompanied by widespread cultural appreciation for the nation’s magnificent charter of liberties, the Constitution. And it must be informed by the deeply Christian (and overwhelmingly Protestant) worldview that inspired its framers.
President Trump’s speeches have done much to revive America’s flagging patriotism. Vice President J.D. Vance has publicly discussed the importance of faith and family. Their Cabinet members, perhaps especially Pam Bondi, can speak to the glorious limitations the Constitution places on the State, paving the way for a Hamiltonian use of judicial impeachment. They should adopt the motto of Hamilton’s rival, Thomas Jefferson, who wrote in 1798, “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” As with illegal immigration, modest enforcement will likely induce judges to self-correct.
The Constitution gives the American people the ability to exercise the greatest government: self-government under the direction of the Holy Spirit.
AUTHOR
Ben Johnson is senior reporter and editor at The Washington Stand.
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