Federal District Judges are Burning Down the Judicial Branch

 We hate the term “Constitutional Crisis”. It’s overly dramatic and has never actually applied to whatever circumstance it was used to describe. Our Constitution has been tested numerous times, most notably in 1861. But staying true to its words and meaning has prevented any “crisis” within the framework of our government for 236 years.

It is not an unusual situation for any of the three branches of government to occasionally venture outside of their Constitutionally-defined boundaries. When this happens, there are built-in checks and balances that work to bring things back into equilibrium. The typical example is when the Judicial branch gets a case to decide if a law passed by Congress, or an executive order signed by the President, is unconstitutional. If a judge deems the specific congressional or executive action to be severe enough, an injunction can be issued suspending the law or executive order nationwide until the full merits of the case are adjudicated.

Historically, injunctions against presidential executive orders have been rare. In the 53-year period from 1963 – 2016, only 49 nationwide injunctions were issued, an average of less than one per year. That all changed during President Trump’s first term from 2016 – 2020, when a total of 64 nationwide injunctions were issued against his executive orders, well more than the total from the previous 53 years.

Since Trump began his second term in January, the rate of nationwide injunctions has exploded even beyond the aberrant numbers from his first term. District court judges are now currently on a pace to issue over 1000 nationwide injunctions during Trump’s second term.

Critics will point out that a larger number of nationwide injunctions is expected against the current administration, given the large number of executive orders signed by Trump. While it is true that Trump has issued an historically greater number of executive orders than other presidents, the corresponding number of injunctions issued against his orders is still far higher than for any other president of either party.

It is also irrational to assume that all of Trump’s executive orders are illegal. We know this is the silly battle cry from the radical left, and from those consumed with blind hate for Donald Trump. But these people live on the fringes of reality (some of them on the fringes of sanity), which is not where federal judges are supposed to exist. Additionally, if Donald Trump, or any other President, was perpetrating patently illegal activity, the Constitutional remedy is impeachment, not an unending stream of injunctions.

For better or worse, federal district court judges have initiated the next big test of our Constitution. This test is not about the import or legality of any single one of these injunctions. Rather, it concerns the larger context of the astronomical rate and scope of injunctions being issued (relative to historical norms). The completely anomalous numbers speak for themselves.

The collective action of these district court judges has created a clear imbalance of power among the three branches of government, with the Judicial branch running roughshod over the Executive branch and assuming a primacy role in executive decision making. This is not what the Constitution lays out (co-equal branches and separation of powers) and certainly not what the framers intended.

We see only two workable remedies. The first, and best, would be for the Judicial branch to get its own house in order and reign itself back in. Clearly this will not happen at the ideologically poisoned district court level and must be orchestrated by the head of the Judicial branch, Chief Justice John Roberts.

The second, and least desirable remedy is for the Executive branch to assert its Constitutional authority and disregard and hold invalid those injunctions that directly intrude on executive branch authority in the areas of foreign policy, military readiness, national security, and spending.

Democrats and the media are already assuming this latter course of action will occur and are referring to it as a “Constitutional Crisis”. The narrative being falsely created is that the Executive branch will not respect the authorities of the Judicial branch and the Constitution will thus be violated.

We believe the exact opposite is true. It is the Judicial branch, at least at the district court level, who does not respect the authorities of the Executive branch. Injunctions are being frivolously issued by politically biased judges for the sole purpose of halting, or at least delaying, the policies of an administration they ideologically disagree with. This is especially egregious behavior in the wake of an election result where people voted overwhelmingly for the very policies being thwarted by the unelected judiciary.

If the Judicial branch cannot repair itself, or if the Supreme Court and/or Chief Justice fails to act decisively to correct this aggressive overreach, the Executive branch must itself act as the Constitutional “check and balance”. Disregarding nationwide injunctions from the district courts would be unprecedented. But in this circumstance, it would be a wholly necessary and justified action to ensure the three branches of government remain co-equal, as dictated by the Constitution.