The Best Congressional Check On Judges Who Overstep Authority

In the first two months of the second Trump administration, the President faces 68 judicial injunctions (and counting), dwarfing the 14 Biden faced during four years and the 12 Obama faced during eight years. (District Court Reform: Nationwide Injunctions)

No administration has faced the judicial onslaught faced by Trump, as it is becoming clear this is the way Progressives hope to stymie the reforms of Trump’s campaign mandate and electoral landslide.

The injunctions are primarily from Democrat appointed Judges and involve absurd orders like turning around aircraft full of criminal illegal alien gang members in route to El Salvador. The frustration has brought the President and others to suggest impeachment as the remedy, though this would be virtually impossible.

Two thirds to convict in the Senate isn’t happening. Additionally, Democrats have abused the power of impeachment against Trump and clamour for Democrats in Congress to go for more. The Constitution offers a much better check on the power of Judges overstepping into executive authority Constitutionally vested with the President.

Judges are crossing the line into executive authority in ways demanding a check. Until the end of the Obama administration, transexuals had been barred from military service. Trump put the ban back on during his first term. Biden removed the ban as soon as he came to office. Of note, neither Obama nor Biden faced injunctions for their orders despite this momentous change to two and a half centuries of the norm for our military.

On January 27, Trump issued an executive order (EO) that “’expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service’ and instructed the Department of Defense to update its medical standards for military service and pronoun policies.

The president's order said that ‘beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one's personal life.’" (Fox News, March 23, 2028)

Less than two months later, openly LGBT Judge Ana Reyes issued an injunction blocking the enforcement of the EO and included in the injunction her opinion the EO “stigmatizes transgender persons as inherently unfit (for military service).”

Secretary of Defense Pete Hegseth responded to Judge Reyes on X by making the point of Reyes encroaching on Executive Authority: "Since 'Judge' Reyes is now a top military planner, she/they can report to Fort Benning at 0600 to instruct our Army Rangers on how to execute High Value Target Raids…after that, Commander Reyes can dispatch to Fort Bragg to train our Green Berets on counterinsurgency warfare,"

Hegseth is right. Just as judges did not involve themselves with Biden’s detrimental national defense decision, they lack the Constitutional authority (and competence) to decide one’s “fitness” for military service. Though Reyes’ ruling oversteps authority, we don’t have evidence she is personally involved in the kind of bad behavior Constitutionally necessary for impeachment.

The Constitution allows for a check on these activist judges acting like mini-presidents. According to Section III of the Constitution: 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.(Article III of the Constitution)

Every Court beneath the Supreme Court is a creation of Congress and can be disestablished by Congress. In 1789, Congress passed the Judiciary Act which “created Federal District Courts and a Circuit Court, which would hear appeals from the District Courts and would become the Court of Appeals. Under the Act, the District Courts had jurisdiction over serious Federal crimes, civil cases over $500 involving diversity jurisdiction or the United States as a party.” (Judiciary Act of 1789)

Over time, Congress created further District Courts and regional Courts of appeal. Congress eventually raised the dollar amount for diversity jurisdiction to $75,000.

Congress retains the Constitutional authority over the establishment and disestablishment of Courts beneath the Supreme Court, including disestablishment of certain District Courts while folding those Districts’ areas of into that of another District. For example, California currently has four judicial districts, and Congress could fold one of those districts into the others. In that event, a federal judge of a disestablished District would lose their position as judge and the ability to enjoin the executive branch.

To relieve backlog on remaining District Courts, Congress can raise the amount for diversity jurisdiction to whatever is necessary, like $150,000. These steps would not require a supermajority and the Republicans control both houses with the ability to pass through now. Additionally, Congress controls the funding to Districts, including Districts with Judges like Reyes. That could be another power in checking rogue judges. For those who argue this is overreach by Congress, Thomas Jefferson and others warned of the kind of Judicial supremacy we are now witnessing and of the duty of Congress to check the power of rogue Judges 

It is time for members of Congress to start the process of disestablishing District Courts with rogue federal Judges, like Reyes, who cross the line into Executive authority. Our American national motto, “In God We Trust”, reminds us of the only place we put our ultimate faith. In God and not the courts.