The American Government Needs Judicial Restraint

Regarding immigration, Immigration Czar Tom Homan has vowed to deport as many illegal aliens as possible

Regarding Trump’s unilateral hiring and firing of federal employees within his executive cabinet, he should continue without hesitation. He has the authority to execute the laws of the United States, and he has the authority to remove people and close departments as he sees fit. It’s stunning that any justice would presume to order Trump to spend money on any department or keep any staffer. The whole point of being an executive is to execute the laws as you see fit!

Regarding immigration, Immigration Czar Tom Homan has vowed to deport as many illegal aliens as possible, regardless of the number of judges who rule “No, you can’t.” Immigration Adviser Steve Miller arranged for Trump’s ICE team to deport Tren de Aragua out of the country just in time so that any orders issued from a rogue judge would be moot since they would not affect an aircraft over international waters. A little judicial forum shopping assisted these efforts, too, since several ICE detentions and deportations are coming out of New Orleans, where the Sixth Circuit Court of Appeals is more favorable to Trump’s (and our) agenda.

El Salvador President Nayib Bukele, who offered to house the illegal aliens in his country’s maximum prison for a fee, gleefully thumbed his nose at the federal district judges who had ordered Trump to turn the planes around and bring the illegal aliens back to the United States. Bukele’s assistance with our nation’s judicial problems is noteworthy. When he first took office, Bukele had to deal with overbearing judges who thwarted his efforts at every turn. Instead of looking for legal workarounds or seeking judicial compromises, he just had the judges impeached and removed from office!

So, what is to be done?

That kind of boldness deserves consideration, even implementation in the United States. Chief Justice John Roberts is wrong: President Trump does have the right and authority to confront, discipline, and even take steps to remove bad judges. Since when does a federal district judge have the unilateral authority to issue nationwide injunctions to frustrate constitutional actions on our soil? What else is to be done about them?

Impeachments take time, though, and require 67 US Senators for a conviction. Many Trump advocates, including Elon Musk, have urged the President to simply defy the courts. After all, that’s what President Andrew Jackson did. However, courts must exist to help protect our rights and ensure law and order in our constitutional republic. If a President could ignore the court’s rulings to protect the property rights of the Cherokee Indians, what’s to stop another President from pushing you out of your home? Kelo v New London has outraged constitutionalists for nearly twenty years because of its broad overinterpretation of the Fifth Amendment takings clause. Those complaints would fall on deaf ears if one champions Andrew Jackson’s brazen defiance of the Supreme Court.

The rogue dismissal of judicial rulings cannot be the one-size-fits-all response to judicial tyranny. When conservatives had no power in Congress or the White House, we relied on the Supreme Court to thwart Joe Biden’s unilateral student loan cancellations or his unconscionable vaccine mandates. We need courts to step in and defend our constitutional rights, too. Those checks and balances make a difference across the board, so with judicial defiance, we need to tread carefully.

So, what is to be done?

Impeach the bad judges? Congress should do it. The Republican US Senate Majority will follow through, unlike the previous Democrat majority which dismissed the charges against former Secretary of Homeland Security Alejandro Mayorkas on a hollow pretext. 

The House should impeach multiple judges at once, and the US Senate should hold one trial for every group of judges impeached over each set of bad rulings (immigration, executive authority, etc.) for maximum effect with minimum interruption for Congress’ other business. Our elected officials still need to finish the wall, eliminate entire departments, enact tax reforms, restore constitutional liberties, and finish the rest of President Trump’s agenda, after all!

Echoing Florida Governor Ron DeSantis’ criticism, Congress should limit the jurisdiction of the courts. Foreign nationals shouldn’t have a day in court at all, for starters. Why do they get to tie up our courts for any reason? Furthermore, district courts need to stay in their lane and limit their holdings to their jurisdiction. If litigants want a national injunction, then they need to argue before the DC Court of Appeal. Last of all, jurisdiction stripping should be discussed, too.

Some would counter that those reforms would require 60 votes in the United States Senate. Why not cut funding from the courts to intimidate judges to pick their fights with more propriety? That needs only 51 votes. However, legitimate cases would also suffer delay.

In his best move on the matter, President Trump has instructed the Department of Justice to demand legal challengers post bonds when they file for injunctions. “You want to delay MAGA? It will cost you!” This move, long rooted in our Anglo-American legal tradition, could force progressive legal activists to limit their legal extortions.

Yet a larger issue remains: how should we determine and enforce constitutionality in the first place? Who should decide if, not just “how should we respond to,” a federal court is stepping out of line, defying the United States Constitution? Is it time to overturn Marbury v Madison altogether? Citizens need to regroup and recoup their God-given rights to enforce constitutional rights rather than relying on courts to do the fighting for them. This is the battle of the Republic that we have long awaited. We need to engage it with greater reflection.