Many federal district court judges are issuing imprudent and obviously politicized decisions to block early actions by President Trump and his team on many fronts, even though Trump ran on a very specific agenda and won an overwhelming victory. The judges, of course, will say they don’t care about elections but about the law and the constitution, but it sure feels like “the Resistance in Robes.”
Some rulings are so wrong that even their beneficiaries give up before higher courts return to their cases, e.g. “Special Counsel” Hampton Dellinger, who was appointed to the obscure post in the vast civil service bureaucracy during the late Biden Regency and was confirmed in the job in February of last year.
Trump fired Dellinger early on in Term 2 —and it is settled law that it is Trump’s right to do just that— but Dellinger made a play for a district court order preventing the firing…and got one from U.S. District Judge Amy Berman Jackson in D.C.!
JUDGES BLOCKING TRUMP’S EXECUTIVE ORDERS ARE ACTING ‘ERRONEOUSLY,’ WHITE HOUSE SAYS
“The Special Counsel is supposed to withstand the winds of political change and help ensure that no government servant of either party becomes the subject of prohibited employment practices or faces reprisals for calling out wrongdoing — by holdovers from a previous administration or by officials of the new one,” Jackson wrote in her decision.
That’s just a bad decision, squarely contrary to long-standing precedent, and the ruling would have been reversed on appeal, but Dellinger must have figured just that: He and the judge would in fact get scorched on appeal, so he quit, mooting the case.
Too bad. Too many journalists think Trump “lost” that case when he didn’t. He won that controversy despite the equivalent of an egregious call from the officials on the field of an NFL game, a call the plaintiff himself reversed by dropping the case.
There are other such bad court decisions and there will be more wins by Trump as the cases move through the ordinary appeals system. President Trump’s lawyers are also pressing some novel theories that would upend decades of precedent, and there’s nothing wrong with throwing the long legal ball, or even a few of them. The president is going to lose some of those, but if he wins some important ones, the Constitution will be better off.
Trump built part of the current Supreme Court during his first term. The highest court is always a sort of Constitutional trampoline where legal theories jump up and down over the decades, propelled by events and presidents. Now President Trump is jumping on that trampoline — just as FDR did early in his presidency — to see how high presidential power can go.
I hope the president’s long-balls succeed at least as much as is necessary to curb the unelected, unresponsive federal bureaucracy and its core group of “independent agencies.”
Our constitution did not envision a “fourth branch” of government made up of the kudzu of independent agencies, and this “fourth branch” needs to be checked and cut back, dramatically. This Supreme Court has set about doing that in the past two years with some major decisions paring back the power of the administrative state.
Trump will lose some cases, however, including, I think, his attempt to curtail “birthright citizenship” via executive order. It is the tradition in the United States, deeply etched in our history, that if you are born here, you are a citizen here. I believe the great migration of the 1880s to 1920s established that practice to so deep a level of American tradition that only an Amendment to the Constitution would change it, not even a statute and certainly not an executive order. But the very old Reagan-era judge who dismissed the argument about the executive order with intemperate language did not bring credit to the federal judiciary given that this is a high-profile case of first impression.
Another case of first impression is the president’s deportation of 238 alleged Venezuelan gang members, plus 23 alleged members of the international MS-13 gang, who were sent from the US to a prison in El Salvador on Saturday. The Venezuelan cartel is Tren de Aragua (TdA), and the president declared that organization was guilty of “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Trump invoked the Alien Enemies Act of 1798 in making his declaration and ordering the deportations. Combined with his inherent Article II authority under the Constitution, Trump is operating in what the late Justice Robert Jackson would have termed the zone of greatest presidential power. This is also a case of first impression —no court has ever dealt with such a situation before— so everyone is guessing what will happen in its aftermath.
U.S. District Judge James Boasberg, confronted with the deportations already underway on Saturday night, acted in a sloppy and frankly lazy and high-handed fashion, and in the absence of a specific, written order, Trump officials did not turn the planes around which the judge appears to have wanted them to do and which he assumed they would do. “Assumptions” are a bad strategy even for the most self-assured federal judges who think when they get to Heaven they will share the highest bench with God.
Boasberg is now obviously embarrassed and angry that the Executive Branch didn’t read his mind or his unwritten order and would dare blow him off, and so he has been busy digging his judicial hole deeper. What he should do is cut his losses, dismiss the case as the non-justiciable political question it is, and let the deportees decide if they want to appeal to the D.C. Circuit. Boasberg isn’t likely to get the final word here whether he stomps his feet or not.
But he’s flailing around this week and saying things that suggest he believes he runs the Executive Branch and not the president. That’s when Republican House members started calling for his impeachment, echoing President Trump’s own frustration with federal judges popping up like whack-a-mole to obstruct the president. (Meanwhile, the commander-in-chief is ordering military strikes on the Houthis. Perhaps Judge Boasberg has an opinion on that too?)
So the judges have clearly pushed themselves collectively to the forefront of many political disputes. That’s not new. Maybe the number and pace of the disputes is new, but collisions between the branches of government are not new. This is not a “crisis.” It is the ordinary working of the Constitution.
The effort to mainstream “impeachment” of left-wing, highly ideological judges is, however, unusual – and it is terrible governance and worse politics. Chief Justice Roberts spoke out against it this week as a threat against the independence of the third branch of government — just as the chief justice did when Senator Schumer appeared in front of the Supreme Court to threaten it a few years back — and urged the “impeachment” chatter cease. The chief justice is right. Everything is fine, this is ordinary stuff and will work its way through the courts. But courts are slow. Some key reminders.
First, people who believe in the Constitution and the rule of law should have been disgusted by the politicization of the impeachment process against President Trump and even more repulsed by the weaponization of the DOJ, FBI, NARA and state prosecutors against a former president.
They ought also to have defended Judge Aileen Cannon against attacks on her judicial independence (and careful jurisprudence) as well as defended the SCOTUS and its individual members from outrageous threats made by Senator Schumer and smears by Senator Whitehouse and many others.
The left wants to destroy the rule of law by breaking the Senate filibuster and “packing the Supreme Court.” Our foreign adversaries advance these arguments via bots and trolls, but there are some populist actors on the left and on the right that care very little for the orderly rule of law. The foreign adversaries want to divide our country from its Constitution, and some conservatives have grown weary of being the party of the “rule of law” while the left just goes wild in the streets, but that’s what the GOP has been and must remain.
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People who believe in the Constitution have to fight back against the effort to use extra-judicial remedies every day. We can be clever about that. It might, for example, be a good idea for Senate Leader Thune to bring the “Court packing” bill from the Democrat wish list of 2021 up right now to see if Senate Democrats still support it. They won’t, of course, because if it passed now it would not support their extreme ideological end. I hope every GOP senator would vote against it after bringing it through the cloture process just to get Democrats on record as being about power, not law.
Generally, however, we who believe in liberty, the rule of law and the Constitution should not embrace the revolutionary tactics of the hard left and use weapons of extraordinary power for ordinary arguments between the branches. It might be cathartic to demand “impeachment” of judges making lousy decisions, especially right now as we are swamped with many awful district court decisions, but the correct “rule of law” response is to defend the Constitution for the system to work has it has since 1789.
Students of history will recall the ill-conceived partisan attempt to impeach Justice Chase by Jefferson’s hyper-supporters in 1804-5. Chase was impeached by the House, but cooler heads prevailed in the Senate and he was not convicted and removed, and we are blessed that it turned out that way and impeachment did not become part of the political process.
Justices and judges are always going to make mistakes (e.g. the great Justice Scalia got the decision in Employment Division v Smith on the Free Exercise Clause wrong, wrong, wrong in 1990) but the answer is in the appeals system and eventual reconsideration of bad precedents, not impeachment resolutions that waste time and won’t succeed because they shouldn’t succeed.
The answer comes in two forms: More great nominees for federal judgeships followed by quick confirmations and more terrific lawyering by Attorney General Pam Bondi of which we have already seen much and of which we should see much more.
Hugh Hewitt is host of “The Hugh Hewitt Show,” heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.
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