President Donald Trump returned to office bent on pursuing a more expansive view of executive power than he did in his first go-round. The manifestation of that intent by his young administration has been the dizzying flurry of executive orders targeting universities, law firms, foundations and other bastions of what Trump views as elitist resistance to his agenda; undermining by executive fiat congressionally established and funded federal bureaucracies, like the Department of Education; and detaining and often deporting noncitizens of various types.
There have also been calls to impeach federal judges who temporarily halt Trump initiatives. Indeed, Trump himself has openly castigated judges who have blocked his legally questionable actions.
“These Judges want to assume the powers of the Presidency, without having to attain 80 Million Votes,” Trump wrote March 20 on his Truth Social platform. “They want all of the advantages and none of the risks.” On that same day, Trump demanded, inappropriately, that Chief Justice John Roberts get federal judges in line. “If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY,” Trump wrote, ‘our Country is in very serious trouble.”
An array of federal judges in districts throughout the country have overruled or temporarily halted many of the Trump administration’s actions. That’s prompted petitions to the U.S. Supreme Court for a ruling to bar any single district judge from issuing an injunction covering the entire country.
Trump even has ignored the Supreme Court itself.
Kilmar Abrego García remains in an El Salvador prison nearly six weeks after the high court ordered the Trump administration to “facilitate” Abrego García’s return to the U.S. They’d ruled his due process rights were violated and he should have an opportunity to contest his deportation. (Trump officials argued, absurdly in our view, that the court’s language meant only that they would have to allow Abrego García to return if he could somehow make his way back to the U.S. border on his own.)
All of which brings us to an illuminating back-and-forth recently between Roberts and Vice President JD Vance.
Roberts in a May 7 “fireside chat” in Buffalo, N.Y., confronted the simmering issue head on: “In our Constitution,” he said, “the judiciary is a coequal branch of government separate from the others with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president.” (Our emphasis.)
Vance, in an interview with The New York Times columnist Ross Douthat published May 21, laid out an entirely different view. “I know this is inflammatory,” Vance said, “but I think you are seeing an effort by the courts to quite literally overturn the will of the American people.”
While allowing “most courts” weren’t guilty of his (indeed) inflammatory charge, Vance went on to criticize Roberts for saying the role of the judiciary was to “check the excesses of the executive. I thought that was a profoundly wrong sentiment.”
Roberts and his colleagues ought to spend at least as much time policing lower-court judges as they do second-guessing the president, Vance asserted. But that’s not the issue here nor what is troubling us. It’s that the main idea behind Vance’s case was that the president is due more deference from the courts than he’s getting because he was directly elected.
Presidents have been grumbling about unelected judges from the beginning of the republic. Still, Roberts is right. Of course he is right.
The framers of our Constitution were particularly wary of placing too much power in the hands of the president, having recently gone to the trouble of going to war against a king. Both John Adams and James Madison warned against the “tyranny of the majority,” and helped devise the checks and balances embedded in the powers given the separate branches of government to stave off the potential threat to liberty posed by the passions of the day.
We met Thursday with the American Civil Liberties Union of Illinois. The conversation was wide-ranging, but Trump’s actions understandably were top of mind. Executive Director Colleen Connell said the Trump administration was “just plain wrong” in its belief that the judiciary ought to defer to the executive. “Our system of law is built foundationally (on the principle) that no person is above the law,” she told us. “It goes back to Magna Carta in 1215.”
Roberts took that stance a step further in his May 7 appearance. He said America’s founders went beyond their English forebears, who had established the courts as a part of Parliament, and set up the judiciary as a separate, coequal branch. That “innovation,” in Roberts’ words, “doesn’t work” without judicial independence.
Vance’s critique, too, was off the mark in that it ignored Roberts’ own assertion a few weeks ago that there exists a potent check on lower courts. It’s the ability to appeal to higher courts and ultimately the Supreme Court, a path the Trump administration has taken frequently in its early months.
Sure, some “activist” district judges overstep, but that occurs at both ends of the political spectrum, the definition of an ‘activist” judge typically being in the eye of the (losing) beholder. Ergo, that appeal process up to the highest level. It’s effective, too. No federal judge of our acquaintance likes being slapped down by the Supremes.
It seems obvious to us that there will come a point, perhaps soon, in which the Supreme Court will issue a decision with which Trump disagrees fundamentally, worded in such a way that his lawyers can’t fashion workarounds. He will have to choose then whether to submit, as the Constitution demands, or adopt the “let them enforce it” point of view Andrew Jackson famously (and perhaps apocryphally) articulated in the 1830s when he refused to obey a ruling.
In Jackson’s time, the American republic was in its infancy and the court’s powers were more tenuous. Today, the principle that the judiciary interprets the Constitution and the laws is firmly rooted. The rule of law is what “protects us from a dissent into barbarism,” Connell said to us, her voice and demeanor clearly implying that she sees a clear and present danger in what has been transpiring these last few weeks.
We understand her worries and could not agree more with her sentiment. Few if any presidents get everything they want from the Supreme Court — even those, like Trump, who’ve appointed multiple justices. That’s as it should be.
In America, there is what the law says. And there is what judges say the law means.
President Trump must follow both. Just like the rest of us.
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