What all this lawfare amounts to is a kind of judicial coup against the sitting president. By doling out injunctions like they’re USAID grants for LGBTQ awareness programs in Mali, Democrats have been able to hamstring key aspects of Trump’s agenda — at least for the moment. It’s a simple enough tactic. All Democrats have to do is shop for a venue to find the most activist, rabidly anti-Trump federal judges in the country, file their lawsuits, and wait for the injunctions to come raining down.
By doing this, Democrats and their allies in the judiciary turn the Constitution on its head, and effectively govern negatively through injunction, making major reform of the federal bureaucracy impossible. In nearly every case so far, the federal judiciary is siding with the permanent bureaucracy in Washington, preventing the Trump administration from doing anything to reform it despite Trump having campaigned on precisely that promise.
The problem is, as my colleague Sean Davis noted recently on X, federal judges have no actual authority to do this. They can’t decide on their own who the president can talk to or what data he can access. They can’t bind the president at all. According to the U.S. Constitution they’re “inferior” courts and therefore don’t have any authority over the executive branch. Yes, the three branches of the federal government are coequal, but the only part of the federal judiciary that’s equal to the presidency is the Supreme Court, not all the federal district courts scattered across the country.
“John Roberts and SCOTUS have two options here: they can bring these inferior malcontents to heel, or they can get used to the President simply ignoring these inferior courts or Congress eliminating them entirely,” wrote Davis. “Congress created these inferior courts so the Supreme Court wouldn’t have to deal with every federal case by itself. But if these rogue inferior judges are going to routinely issue lawless decisions that the Supreme Court has to deal with anyway, Congress would be well within its rights to just eliminate them.”
The issue might come to a head before Congress gets around to eliminating the federal courts, though. If the Supreme Court steps in on just one of these cases where a federal judge has blocked a lawful executive order from Trump, it might not go well for Democrats. In the 2018 Supreme Court case
Trump v. Hawaii, which reversed a lower court’s decision to uphold a nationwide injunction on Trump’s travel ban, Justice Clarence Thomas
called into question the idea that a federal judge in Hawaii (or anywhere else) can simply issue an injunction against a presidential executive order and apply it to the entire country.