Democrats are attempting to win in court what they lost at the ballot box. But their strategy abuses the legal system and upends the Constitution. Here's what to do about it.
Excellent piece. Also, with the exception of SCOTUS all Federal courts are inferior bodies. Not provided for in the Constitution but created via statutory construction. And what Congress created they can destroy.
And that is what they should threaten to do. A two prong approach. They can begin by crafting legislation that limits the ruling of a Federal district court to the geographical boundaries covered by the district. In essence, they need to codify the same rules under which appellate courts operate. Appellate court decisions only apply in the circuit covered by the ruling court. The same rules should apply to district courts.
Second, they should inform SCOTUS that they need to get involved in the interim. And the hammer that they have is the dissolution of the inferior courts. While the likelihood of this actually occuring is zero (because Congress is gutless) maybe Roberts will have nightmares of SCOTUS caseload rising by 10,000 times.
Both Congress and SCOTUS have had plenty of opportunities over the past 4 decades to address this issue. So far, neither has seemed so inclined. Maybe this time we’ve reached a breaking point. One can only hope.
I agree with your statement. But. You're assuming that all Republicans in Congress think that the district judges are overstepping their authority. There are quite a few Republicans who silently agree with the Democrats arrayed against Trump.
A good overview. I was thinking while reading the headlines that Trump was causing a "constitutional crisis" that it wasn't Trump: it was the Democrats and their running to partisan judges to get their way that was causing the constitutional crisis.
I don’t think a DC has any power to override a Presidential EO. That should be strictly an SC decision. Otherwise the Constitution’s 3 separate branches are meaningless.
This nonsense of a DC controlling the country must be brought to an end. The SC needs to do their
job. They are silent.
The courts set up by Congressional legislation should only be ruling on those laws.
I don’t think a DC has any power to override a Presidential EO. That should be strictly an SC decision. Otherwise the Constitution’s 3 separate branches are meaningless.
This nonsense of a DC controlling the country must be brought to an end. The SC needs to do their job. What do we hear from them, the sound of crickets.
The courts set up by Congressional legislation should only be ruling on those laws, and then with the SC having the final say.
Where in the Constitution does it say the SC cannot rule on something the legislative or executive branch has done before a case is “brought before them”? Probably would save everyone a lot of lawyers fees and put an end to the “law fare” that has now become so popular.
Just have DOJ walk across the street and ask the SC for their opinion. Problem solved. Case closed.
Demos take money from A, give it to B asking neither A or B what they think about it. Trump happened to benefit from an electoral revolt against such policies.
On the flip side, nationwide injunctions by the district or circuit courts is how the 2A community has resisted erosion of constitutional rights by an executive or legislative branch that does not care to follow the constitution. It takes many years before the SC gets to have a say, assuming it even decides to do so. I am afraid there is not an easy answer here.
That is part of my point. These things must be immediately appealable to the Supreme Court.
And yes, I understand the usefulness of this in opposition to the Democrats. But that doesn't make it right, or safe, and if the elected branches are more important, people will take elections more seriously.
My understanding is that Trump should put up with this nonsense for a bit longer. Good news could come from the renewed SCOTUS interest in the Humphrey's exectutor v United States case that's due for an opinion this June. Good (better?) things come to those who wait?
Definitely possible, but not a given, and also, Trump doesn't have any time. By the 2026 midterms he'll have very little chance of getting anything domestic done.
Here's a thought: create a new lower court (call it the Court of Fast Appeals of Federal Overreach, or FAFO), staff it with five very young MAGA judges, and have all political injunctions reviewable immediately by FAFO, with appeals to SCOTUS by certiorari.
I really like the idea that any action by a District Court against Presidential Executive orders are immediately appealable to the Supreme Court. A Few slap downs would stop that really quick
I suggest you expand on #2 and #5 and detail how Chief Justice John Roberts, who runs the federal judiciary, can de-politicize the courts and restore the public's faith. For some reason, he always escapes accountability.
He does indeed, because though his beliefs are indeed conservative, his loathing for Donald Trump is visceral, and the left long ago learned how to manipulate him. Not all the time, but often.
Perhaps President Trump should “Art of the Deal” them and jump immediately to option 4. The Deep State would lose their minds and probably be easily convinced to accept option 3 in a negotiation.
The virus driving the disease is the unfettered accessibility to ex parte rulings. Other than a law license, there are no barriers to entry. My complex civil litigation practice spanned 5 different decades and I encountered this constantly.
An ex parte matter is a hearing/petition ruled upon by a judge in which only one party is present and/or heard. It's like a baseball game in which only one side is allowed to bat. Of course, that side may ultimately strike out, but the other side never even gets to the plate - until much later in the game.
The particular problem in these federal matters allows the original petitioner to forum/judge shop, and no matter how unscrupulous that may seem, it almost always passes legal muster.
The greater problem: the judicial process moves at the speed of caked mud. The absurdly outdated system and judicial mindset makes it impossible to move efficiently. It's akin to running from hot lava in swimfins.
Now from 40,000 feet: American jurisprudence is the embodiment of Karl Poppers paradox of tolerance. In a rush to signal their open-minded "virtue" the gatekeepers have welcomed the intolerant screech of extremists and have taken a cowardly knee in deference to the impetuous tantrum class. The system bends over backwards to tolerate everyone and everything - even the most absurd and incredulous claims imaginable- and in doing so has generated a new viral strain of rank and inexcusable inefficiency.
This quote from Nietzsche sums it up best:
"The most common form of human stupidity is forgetting what one is trying to do."
I would only add that there should be a mechanism to sanction judges who abuse their office, but not so egregiously that impeachment becomes a realistic possibility. Perhaps a "yellow card/red card" approach that would suspend them from ruling on cases (without pay) for a period of a few months after the second ridiculous overreach (and increasingly lengthy suspensions for further misconduct) where they clearly disregard SCOTUS rulings. Judges could still make their partisan stands...once, with the second bit of grandstanding costing them a substantial sum and further misconduct placing them in the crosshairs of impeachment.
Rod, the number of suits filed against Trump exceed all other presidents combined. These activist left judges are knowingly overstepping their authority to gum up the works. Impeaching judges will will not remove them, since it requires a 2/3 vote from the Senate for removal, which isn’t happening. I suggest GOP Congress with simple majority votes remove these judges on the basis of article 3 behavior clause.
Excellent piece. Also, with the exception of SCOTUS all Federal courts are inferior bodies. Not provided for in the Constitution but created via statutory construction. And what Congress created they can destroy.
And that is what they should threaten to do. A two prong approach. They can begin by crafting legislation that limits the ruling of a Federal district court to the geographical boundaries covered by the district. In essence, they need to codify the same rules under which appellate courts operate. Appellate court decisions only apply in the circuit covered by the ruling court. The same rules should apply to district courts.
Second, they should inform SCOTUS that they need to get involved in the interim. And the hammer that they have is the dissolution of the inferior courts. While the likelihood of this actually occuring is zero (because Congress is gutless) maybe Roberts will have nightmares of SCOTUS caseload rising by 10,000 times.
Both Congress and SCOTUS have had plenty of opportunities over the past 4 decades to address this issue. So far, neither has seemed so inclined. Maybe this time we’ve reached a breaking point. One can only hope.
Completely agree.
I agree with your statement. But. You're assuming that all Republicans in Congress think that the district judges are overstepping their authority. There are quite a few Republicans who silently agree with the Democrats arrayed against Trump.
A good overview. I was thinking while reading the headlines that Trump was causing a "constitutional crisis" that it wasn't Trump: it was the Democrats and their running to partisan judges to get their way that was causing the constitutional crisis.
I don’t think a DC has any power to override a Presidential EO. That should be strictly an SC decision. Otherwise the Constitution’s 3 separate branches are meaningless.
This nonsense of a DC controlling the country must be brought to an end. The SC needs to do their
job. They are silent.
The courts set up by Congressional legislation should only be ruling on those laws.
I don’t think a DC has any power to override a Presidential EO. That should be strictly an SC decision. Otherwise the Constitution’s 3 separate branches are meaningless.
This nonsense of a DC controlling the country must be brought to an end. The SC needs to do their job. What do we hear from them, the sound of crickets.
The courts set up by Congressional legislation should only be ruling on those laws, and then with the SC having the final say.
Where in the Constitution does it say the SC cannot rule on something the legislative or executive branch has done before a case is “brought before them”? Probably would save everyone a lot of lawyers fees and put an end to the “law fare” that has now become so popular.
Just have DOJ walk across the street and ask the SC for their opinion. Problem solved. Case closed.
Demos take money from A, give it to B asking neither A or B what they think about it. Trump happened to benefit from an electoral revolt against such policies.
On the flip side, nationwide injunctions by the district or circuit courts is how the 2A community has resisted erosion of constitutional rights by an executive or legislative branch that does not care to follow the constitution. It takes many years before the SC gets to have a say, assuming it even decides to do so. I am afraid there is not an easy answer here.
That is part of my point. These things must be immediately appealable to the Supreme Court.
And yes, I understand the usefulness of this in opposition to the Democrats. But that doesn't make it right, or safe, and if the elected branches are more important, people will take elections more seriously.
My understanding is that Trump should put up with this nonsense for a bit longer. Good news could come from the renewed SCOTUS interest in the Humphrey's exectutor v United States case that's due for an opinion this June. Good (better?) things come to those who wait?
George Sutherland. “Humphrey’s Executor v. United States”. Court Case, May 27, 1935. From Teaching American History. https://teachingamericanhistory.org/document/humphreys-executor-v-united-states/ (accessed February 14, 2025).
Definitely possible, but not a given, and also, Trump doesn't have any time. By the 2026 midterms he'll have very little chance of getting anything domestic done.
I’m hopeful for a different mid-term result. Trump’s shown he can defer history.
Here's a thought: create a new lower court (call it the Court of Fast Appeals of Federal Overreach, or FAFO), staff it with five very young MAGA judges, and have all political injunctions reviewable immediately by FAFO, with appeals to SCOTUS by certiorari.
Sounds like a plan.
I see what you did there. FAFO. Very clever!
I really like the idea that any action by a District Court against Presidential Executive orders are immediately appealable to the Supreme Court. A Few slap downs would stop that really quick
You are right. These injunctions must be stopped. I like the idea of immediately appealing to the SC if Congress can’t legislate this problem.
I suggest you expand on #2 and #5 and detail how Chief Justice John Roberts, who runs the federal judiciary, can de-politicize the courts and restore the public's faith. For some reason, he always escapes accountability.
He does indeed, because though his beliefs are indeed conservative, his loathing for Donald Trump is visceral, and the left long ago learned how to manipulate him. Not all the time, but often.
Perhaps President Trump should “Art of the Deal” them and jump immediately to option 4. The Deep State would lose their minds and probably be easily convinced to accept option 3 in a negotiation.
Very good overview.
The virus driving the disease is the unfettered accessibility to ex parte rulings. Other than a law license, there are no barriers to entry. My complex civil litigation practice spanned 5 different decades and I encountered this constantly.
An ex parte matter is a hearing/petition ruled upon by a judge in which only one party is present and/or heard. It's like a baseball game in which only one side is allowed to bat. Of course, that side may ultimately strike out, but the other side never even gets to the plate - until much later in the game.
The particular problem in these federal matters allows the original petitioner to forum/judge shop, and no matter how unscrupulous that may seem, it almost always passes legal muster.
The greater problem: the judicial process moves at the speed of caked mud. The absurdly outdated system and judicial mindset makes it impossible to move efficiently. It's akin to running from hot lava in swimfins.
Now from 40,000 feet: American jurisprudence is the embodiment of Karl Poppers paradox of tolerance. In a rush to signal their open-minded "virtue" the gatekeepers have welcomed the intolerant screech of extremists and have taken a cowardly knee in deference to the impetuous tantrum class. The system bends over backwards to tolerate everyone and everything - even the most absurd and incredulous claims imaginable- and in doing so has generated a new viral strain of rank and inexcusable inefficiency.
This quote from Nietzsche sums it up best:
"The most common form of human stupidity is forgetting what one is trying to do."
Indeed.
I would only add that there should be a mechanism to sanction judges who abuse their office, but not so egregiously that impeachment becomes a realistic possibility. Perhaps a "yellow card/red card" approach that would suspend them from ruling on cases (without pay) for a period of a few months after the second ridiculous overreach (and increasingly lengthy suspensions for further misconduct) where they clearly disregard SCOTUS rulings. Judges could still make their partisan stands...once, with the second bit of grandstanding costing them a substantial sum and further misconduct placing them in the crosshairs of impeachment.
Rod, the number of suits filed against Trump exceed all other presidents combined. These activist left judges are knowingly overstepping their authority to gum up the works. Impeaching judges will will not remove them, since it requires a 2/3 vote from the Senate for removal, which isn’t happening. I suggest GOP Congress with simple majority votes remove these judges on the basis of article 3 behavior clause.