The judicial ‘resistance’ is setting itself up for humilitation

America, unfortunately, has long been suffering from a crisis of civics. Put simply, many Americans are woefully ignorant about the structure and features of their government. But every so often, an opportunity emerges to reteach some basics. The media’s predictable shrieks and howls of “constitutional crisis” notwithstanding, we are in the throes of a grand separation-of-powers standoff that will both serve as one such edifying civics lesson.

First: Enter the energetic executive.

In his frenetic opening weeks, President Donald Trump has channeled the spirit of Federalist No. 70, in which Alexander Hamilton argued that only a unitary executive can govern with “decision, activity, secrecy, and despatch.” In starker, more modern terms, this newer Trumpian era has fully embraced two key principles associated with close MAGA allies: Steve Bannon’s “flood the zone” and Elon Musk’s “move fast and break things.” The crux is that people are easily distracted, often overwhelmed and frequently overcome by shiny-object syndrome. This is especially true in today’s 24/7 social media environment.

Those two mantras explain how we get these remarkable first few weeks – this more assertive, more dynamic MAGA machine. We see “move fast and break things” in such moves as the executive orders on birthright citizenship and rooting out both “diversity, equity and inclusion” and gender ideology from the federal government. We see it in the U.S. Agency for International Development wind-down, and we see it in the anticipated termination of the Department of Education. And we see “flood the zone” in the daily frenzy of executive orders. Indeed, White House Staff Secretary Will Scharf’s daily physical handing of new executive orders to Trump to sign has emerged as an unlikely cable TV fixture.

And now: Enter the judicial “resistance.”

This is a familiar phenomenon. Black-robed Trump nemeses emerged as a menacing force during the first Trump administration. As then-Vice President Mike Pence noted in a May 2019 speech, the first Trump administration “faced more nationwide injunctions than the first 40 American presidents combined.” That same month, then-Attorney General William Barr spoke to the American Law Institute, decrying nationwide injunctions, which he said “depart from history and tradition, violate constitutional principles, and impede sound judicial administration.” (By the end of that first term, Trump policies had been halted by a whopping 64 nationwide injunctions.) Of all the forces arrayed against Trump the first time around, it is possible that none was able to gum up the works against the administration quite as much as the judicial “resistance.”

Accordingly, left-wing lower-court judges have, over the past few weeks, already issued many such nationwide injunctions against the new Trump administration’s executive orders. The reemergence of the judicial “resistance” reached a fever pitch this week, when Judge Paul Engelmayer in New York City attempted to stop Musk’s Department of Government Efficiency from accessing Treasury Department payment systems, and Judge John J. McConnell Jr. in Rhode Island threatened Trump administration officials with criminal contempt. Those rulings followed Vice President J.D. Vance’s post on X last Sunday that “judges aren’t allowed to control the executive’s legitimate power.”

Barr and Vance were both correct to call out judicial overreach against executive authority.

As Supreme Court Justice Clarence Thomas explained in his 2018 concurring opinion in the “travel ban” case of Trump v. Hawaii, American courts’ authority has historically been understood as “fundamentall(y) the power to render judgments in individual cases.” If the current Supreme Court weighs in, Thomas’ position on the role of courts should garner a five-vote majority. That is because it is clear, as law professor Samuel L. Bray argued in a much-cited 2017 law review article, that a federal court’s power to issue injunctions is restricted to a specific defendant’s conduct only with respect to a specific plaintiff. The entire notion of a “nationwide injunction” is therefore oxymoronic.

As a political matter, furthermore, the Trump administration and its allies in Congress are going to prevail in the separation-of-powers battle royale against the obstinate lower courts.

As Hamilton observed in Federalist No. 78, the judiciary is so functionally impotent that it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Consider, for instance, the possibility that McConnell in Rhode Island attempts to enforce a finding of criminal contempt against someone in the Trump administration. How exactly would that work? By ordering jail time for Trump, Attorney General Pam Bondi or someone else in the administration? The U.S. Marshals Service would presumably be responsible for carrying out such an order – but those marshals work for Bondi, who works for Trump. Perhaps more relevant, if someone in the administration were to be found in contempt by a federal judge such as McConnell, Trump could simply issue a pardon. “Constitutional crisis” averted!

The Republican-led Congress could also join in on the anti-judicial “resistance” fun by meting out both large and small punishments to the judges who are now interfering with executive authority with their dubious nationwide injunctions. Congress could file articles of impeachment against wayward judges, dissolve entire lower-court judgeships, or strip lower-court judges of jurisdiction over certain types of cases – or even pettily demand that jurists pay out of their own pockets if they want their robes dry cleaned. Congress has nearly limitless tools at its disposal to rein in an overweening judiciary – tools it ought to use more often.

The judicial resistance may think it is acting nobly, but it is acting unconstitutionally – and setting itself up for utter humiliation.