What if I told you that when federal district judges issue injunctions blocking President Donald Trump’s policies in a judicial insurrection, they were the ones breaking the law?
No, it’s not just because these judges are effectively usurping the authority of the president over the executive branch. It’s more clear-cut than that.
When Chief Judge James Boasberg of the U.S. District Court in Washington, D.C., issued an order demanding the Trump administration return reputed members of the Venezuelan gang Tren de Aragua to the U.S., he wasn’t just making immigration policy—he was violating a black-and-white rule laid down by the U.S. Supreme Court.
It’s called the Federal Rule of Civil Procedure 65(c). Here’s what it says:
The court may issue a preliminary injunction or a temporary restraining order only if the movant [that is, petitioner] gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
What does that mean? It means that when the ACLU files a lawsuit against the Trump administration and asks the judge to issue an order forcing Trump to turn around, in midflight, the planes deporting violent gangbangers, the ACLU has to put up or shut up.
The ACLU has to put down a “security” payment when asking for the court order, just in case a later judge strikes down the order after it already cost the government money to follow it.
This commonsense requirement isn’t a Trump wish list item. It’s a rule with the force of law. //
So, why isn’t the Department of Justice formally asking judges to enforce this rule?
The Foundation for Individual Rights and Expression may give a hint at the answer.
“Courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights,” FIRE’s Ronnie London explained.
Perhaps the Justice Department is unwilling to press its rights on this issue because groups such as FIRE would like a public-interest exception.
Still, Hans von Spakovsky, a senior legal fellow at The Heritage Foundation’s Center for Legal and Judicial Studies, told The Daily Signal, “There is no exception.”
Daniel Huff, who worked as an attorney in the first Trump White House, wrote about the issue for The Wall Street Journal.
He called the “public interest” exception “made-up” and “subjective.”
“This elitist conceit presumes that it is in the public interest to exempt activists from standard legal rules so they can block actions ordered by the president, for whom 77 million Americans voted,” Huff wrote.
He cited no less a judge than since-deceased Supreme Court Justice Ruth Bader Ginsburg, when she served on the U.S. Court of Appeals for the D.C. Circuit.
In National Kidney Patients Association v. Sullivan (1992), a district judge tried to invoke public interest to waive the security payment. A panel of the D.C. Circuit, which included future Justice Ginsburg, rejected the claim outright: “This completely overlooks a key purpose of the bond … to make plaintiffs consider the damage they may inflict by pressing ahead with a possibly losing claim.”
Like with the Japanese internment during World War II, the current move to deport alleged alien criminals is driven by hysteria.
This is a prime example of the press exposing its activist nature. When these select judges ruled on Trump’s activities, it was hyperactive coverage and banner headlines. Judge James Boasberg has become something of a media darling for imposing injunctions and TROs on deportation efforts. Yet when these cases rise to the Supreme Court and get reversed, you might see some pat reporting and solitary articles.
Logic would dictate that if these were in fact serious cases, the coverage would match on either side of a ruling. But as we have become conditioned to for some time, the press is largely dictated by emotion and partisanship. When these judges came out with rulings opposing Trump’s policies, it was blaring headlines, round-the-clock coverage, and every exploration made into how the president was defying the Constitution and burning down our democracy.
Now we get solitary news items and a calming of the waters. Primetime pundits are not delving into the prospect of rogue judges threatening our democracy by attempting to override the president. No “experts” are brought on camera to criticize courts trying to step in and wrest Executive Branch control from the Chief Executive. Outlets are not sharing op-eds about the meaning of it all concerning SCOTUS.
This is a clear sign of an activist media complex. The coverage of the initial judgements were not merely sober presentations of the facts; they were promoting an agenda and encouraging these actions by the judges. Once the rulings come in, then the media makes proclamations and charges Trump with “defying the courts” accusations and interpreting worst-case scenarios.
This is a major advance in the moves by the partisan press. This is not merely farming a narrative anymore; this is a blatant attempt to influence governance. There is a clear anti-administration agenda and they're not even attempting to hide it. They begin from the standpoint that Trump is wrong, regardless of the issue, and then strain to manipulate details to suit that accusation.
Look at one of the impotent arguments made about the use of the Alien Enemies Act when it was said to be invalid because it is an old law from the 1700s. Somehow, this was supposed to suggest that the AEA no longer counts. But for this logic to stand, then you have to question the legitimacy of the very Constitution itself, given that the document predates the law they do not like.
The fact is that if Senate Republicans stand by the parliamentarian’s ruling and allow her to determine what executive communications are and aren’t actually rules, they will be setting their own new precedent for the CRA; call it “the Whitehouse Rule” after Sheldon Whitehouse, D-R.I., the senator who goaded GAO into action. Going forward, those opposed to CRA resolutions would be able to smother them in the crib with adverse GAO “observations” adjudicated by the parliamentarian, who will herself be mired in an endless morass of legalese about statutory construction and APA interpretation.
Furthermore, if the comptroller general is able to foil the White House’s energy agenda, Donald Trump will surely fire and replace him. Tenure protections have not stopped the president yet. When that legal storm subsides, does anybody really think a Trump comptroller’s “observations” will green light, say, Democrat CRA resolutions against the Department of Government Efficiency? The Whitehouse Rule would set a precedent even Democrats will regret — and perhaps a lot sooner than they think.
Much has been made about Congress outsourcing its legislative responsibilities — to the courts, the executive, and private parties. Senate Republicans shouldn’t continue this unfortunate trend by outsourcing their legislative prerogatives to the parliamentarian.
As the country’s largest funder of civil legal aid, LSC provides critical legal representation to low-income Americans—including veterans, families with children and seniors—who are facing life-altering civil legal challenges such as wrongful evictions, domestic violence and consumer fraud. Defunding LSC would not only deny vulnerable individuals access to justice, but would ultimately increase costs for taxpayers.
When someone is accused of a crime and does not have the resources to hire an attorney, state and federal governments provide legal representation. This is not the case when people face civil actions such as custody battles, foreclosure or denial of veterans and social security benefits. To qualify for legal aid, people must meet strict income guidelines: a family of four must earn less than $32,150 a year and an individual must earn less than $15,650.
A well-functioning legal system is fundamental to maintaining order and ensuring justice. LSC provides essential funding for legal aid organizations that assist low-income American workers and families in navigating civil legal disputes. Without this assistance, many would be left without legal recourse, exacerbating instability in communities and overburdening the courts with self-represented litigants. //
Rather than promoting progressive legal activism, as the misguided article states, LSC and its grantees are bound by strict statutory limitations (imposed by Congress) on the types of cases it can support. LSC grantees cannot engage in class-action lawsuits, lobbying, or political advocacy, and those restrictions apply to funding from any source. In other words, if a grantee accepts so much as $1 from LSC, it must abide by the same conditions that Congress imposed; it cannot raise money from other sources and engage in any prohibited activities. Moreover, extensive, multi-layered oversight mechanisms, including an independent Office of the Inspector General, review and ensure that both LSC and its grantees operate within the scope of these limitations. The idea that civil legal aid is a vehicle for partisan activism is a mischaracterization that ignores the broad restrictions set by Congress. //
Rather than eliminating LSC, a more constructive approach would be to ensure its funding is used effectively and transparently. Lawmakers should focus, as they have in the past, on strengthening accountability measures while maintaining this critical safety net that aligns with the principles of fairness, efficiency and limited government intervention. //
Reply:
Hecht and Malcolm assert that, today, Congress has finally succeeded in restricting LSC’s radical mission. Let us for a moment grant that they are correct (which they are not); is it not strange that they see no irony in urging conservatives to accept and embrace Lyndon Johnson’s original Great Society vision of federal funding for private lawsuits? As constitutionalists, conservatives flatly reject the notion that Congress, under any circumstances, should be injecting each year hundreds of millions of dollars into the private practice of law. //
Meanwhile, California Rural Legal Assistance continues to sue state entities, such as the Bakersfield City School District, for not spending enough public money on education. A generation ago, Governor Reagan wondered, as should President Trump today, what business the federal government has in financing private lawsuits against state and local entities. If a majority of Californians seek to change public policy on education, let them win at the ballot box, not in the courthouse in league with an activist judge. //
It is the same with America’s out-of-control homelessness policies, which have been pushed to extremes, ruining much of our country’s urban life. Homelessness is another public policy passion in the legal aid world and judicial activism is the approach that most LSC grantees support.
“You may very well disagree with the enforcement of our federal immigration laws, but it is inappropriate to suggest to the public that federal officers can be criminally prosecuted by your office or any other state or local prosecutor’s office for performing their official duties.” //
U.S. Attorney of Massachusetts Leah Foley told Suffolk County District Attorney Kevin Hayden and a Boston judge to knock it off after threatening to hold an ICE agent in contempt because he arrested an illegal alien during his criminal trial.
Important to note: The ICE agent and troopers did not walk into the courtroom and grab the illegal alien. They arrested him outside of the courthouse. //
Any attempt or threat to interfere with the lawful actions of federal government agents will not be tolerated. Indeed, under Title 18, United States Code, Section 111(a), it is a felony offense to assault, resist, oppose, impede, intimidate, or interfere with an immigration officer’s efforts to duly execute the immigration laws of the United States.
Foley’s letter to Judge Mark Summerville echoed similar thoughts, reminding him that his court lacks any authority whatsoever to proceed in this matter with respect to United States Immigration and Customs Enforcement Officer Brian Sullivan or any other federal official relating to the lawful federal arrest of an illegal alien.”
Garcia, a citizen of El Salvador, who is portrayed as a "Maryland father" in most news reports, entered the US illegally in 2011. In 2019, he was arrested on allegations of membership in the violent Salvadoran gang called Mara Salvatrucha, or MS-13. At that time, he applied for political asylum, which was denied. He was given an order of removal, but a judge put his deportation on hold on the grounds that he might be in danger if he returned to El Salvador. In early March, Garcia was arrested and put on a plane to El Salvador and the Terrorist Confinement Facility, CECOT.
His attorneys sued, and a judge ordered the Trump administration to return Garcia to Maryland. In her order, the judge called the deportation “an illegal act.”
When White House spokeswoman Karoline Leavitt reacted by saying, “We suggest the Judge contact [El Salvador’s] President [Nayib] Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador,” it struck me, and many others, as the kind of remark you can make if you are in no danger of facing the judge in a courtroom. As it turned out, she perfectly captured the tone of the administration's request for a stay of her order.
High Points
The first response was that the judge's order is impossible to comply with.
The district court’s order—a command to “facilitate and effectuate” Abrego Garcia’s return from a foreign country by midnight on Monday—is unlawful. There is no likelihood that it would survive review on appeal.
...The order below is neither possible nor proper. As noted, Abrego Garcia is an El Salvadoran national, being held in El Salvador, at the hands of the El Salvadoran government.
The conclusion is my favorite.
Because the United States has no control over Abrego Garcia, however, Defendants have no independent authority to “effectuate” his return to the United States—any more than they would have the power to follow a court order commanding them to “effectuate” the end of the war in Ukraine, or a return of the hostages from Gaza.
The government's argument is that Garcia had a final deportation order, so the district court judge erred in hearing the case because it was outside her jurisdiction.
Even putting aside these fundamental defects, the order below also runs into a statutory bar. Section 1252(g) strips district courts of jurisdiction to review “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to … execute removal orders 11 against any alien” under the INA, except as otherwise provided in § 1252. 8 U.S.C. § 1252(g) (emphasis added). This is such a suit. The district court thus lacked jurisdiction over this case, and lacked authority to issue its order. //
The government's brief conclusively takes apart every aspect of Garcia's case. He had a deportation order, he had MS-13 connections that make him ineligible to enter the US, the judge not only doesn't have the clout to make El Salvador send him back to the US, she isn't legally allowed to hear the case.
The point of all the injunctions and restraining orders is to preserve the supreme rule of unelected and unaccountable bureaucrats. //
More nationwide injunctions and restraining orders have been issued against Trump in the past month that were issued against the Biden administration in four years. On Wednesday alone, four different federal judges ordered Elon Musk to reinstate USAID workers (something he and DOGE have no authority to do), ordered President Trump to disclose sensitive operational details about the deportation flights of alleged terrorists, ordered the Department of Defense to admit individuals suffering from gender dysphoria to the military, and ordered the Department of Education to issue $600 million in DEI grants to schools.
On one level, what all this amounts to is an attempted takeover of the Executive Branch by the Judicial Branch — a judicial coup d’état. These judges are usurping President Trump’s valid exercise of his Executive Branch powers through sheer judicial fiat — a raw assertion of power by one branch of the federal government against another.
One added note: The DOJ sought to have the case dismissed without prejudice — meaning it could be brought again at some later date. Ho declined to grant that request, opting instead to dismiss it with prejudice, and noting:
In light of DOJ’s rationales, dismissing the case without prejudice would create the unavoidable perception that the Mayor’s freedom depends on his ability to carry out the immigration enforcement priorities of the administration, and that he might be more beholden to the demands of the federal government than to the wishes of his own constituents. That appearance is inevitable, and it counsels in favor of dismissal with prejudice. //
raswhiting Random US Citizen
an hour ago
Yes, it seems the corruption encouraged and allowed by the leftist Democrats is a feature, not a bug in the system, with one reason being it gives the top Democrats leverage over the lower, corrupt Democrats, i.e., the threat of prosecution.
there's plenty to say about Chen's reasoning as well. Should a judge be overruling the executive branch based on his own personal feelings about "economic activity" and "public health?" How would "safety in communities" even be affected?
I would posit that none of that should be considered. The only thing Chen should have been analyzing was what the law says and whether the administration was within its legal right to remove TPS in this case. Not only did he not do that, but it appears he completely contradicted the law.
You see, this issue was already litigated under the first Trump administration, and the Ninth Circuit Court of Appeals ruled that TPS is not subject to judicial review.
Bill Melugin @BillMelugin
·
Replying to @BillMelugin
Notably, U.S. law says this is not subject to judicial review, and the 9th Circuit upheld that in Trump’s first term.
8 U.S.C. § 1254a(b)(5):
“There is no judicial review of any determination of the [DHS Secretary] with respect to the designation, or termination or extension of
Bill Melugin @BillMelugin_
·
Here is that Prior 9th Circuit decision siding with the Trump admin when he sought to terminate TPS for Haiti, Sudan, Nicaragua, and El Salvador and a district judge tried to block it.
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/14/18-16981.pdf
8:48 PM · Mar 31, 2025.
In other words, not only is Chen violating the law with his order by ruling on something already deemed not subject to judicial review, but he's then demanding the administration meet a legal standard that doesn't even exist. //
CaptainCall
7 hours ago
This seems like a perfect judicial order for Trump to ignore. He can simply explain that he is not ignoring the courts...he's following the ruling by the 9th circuit, not the district court.
Kennedy then asked the assistant AG nominee to "explain how this works."
You have a plaintiff and you have a defendant. And the plaintiff files a lawsuit and goes in front of a federal judge. a federal judge has a certain jurisdiction ... and subject matter over the parties; the plaintiff and the defendant. They're the only two people in court. How can a federal judge issue an order that affects everybody else — other than those in front of him or her? How's that possible?
Shumate was on it:
It shouldn't be possible, Senator. But district courts do it all the time. I think on the theory that the courts need to enjoin a federal policy from going into effect, and they also will enjoin it nationwide so all non-parties are protected by that injunction. //
John Kennedy @SenJohnKennedy
·
The universal injunction has become a weapon against the Trump admin.
It’s long past time to put an end to this lawless practice.
12:50 PM · Mar 26, 2025. //
anon-l1t0
15 minutes ago
I remember when Obama wanted to make changes in the law but could not get Congress to agree. He found a willing plaintiff to sue the government, and a friendly judge, and then entered into a Consent Decree to accomplish his desired outcome. Then if someone sane objected, Obama simply pointed to the court order and said that his hands were tied by the court. Lawfare working for rather than against the President and his agenda. That is how it is done.
Crawford | March 26, 2025 at 11:46 am
“No matter where you are and what you’re accused of, you deserve due process if you are a citizen of America.”
Simply not true. US citizens who had gone to Germany and volunteered for the Wehrmacht were not given due process during WWII, and no one expected them to receive it. They were enemy combatants, no more.
TargaGTS in reply to Crawford. | March 26, 2025 at 12:47 pm
That’s true. They were not afforded due process on the battlefield…in Europe. However, some were captured in the US. For instance, the US citizens involved in Operation Pastorious (three total), were granted due process (as were the other German nationals captured with them) and that would eventually produce the case SCOTUS decided, Ex parte Quirin, 317 U.S. 1 (1942). Those men were eventually sentenced to death. Their convictions upheld by the Court but two of the three US citizens were granted clemency by FDR and I think later deported to Germany after the war. One was executed weeks after the sentences were upheld.
According to numbers compiled by the Harvard Law Review, U.S. District Courts have issued more sweeping injunctions against Trump in the past two months than they have against three former presidents over their entire terms.
Since Jan. 20, lower courts have imposed 15 nationwide injunctions against the Trump administration, compared to what the Harvard Law Review recounts as six over the course of George W. Bush’s eight-year presidency, 12 over the course of Barack Obama’s eight years in the White House, and 14 during Joe Biden’s single four-year term.
During his first term, Trump was subjected to 64 nationwide injunctions. If inferior courts continue issuing nationwide injunctions against the Trump administration at the current rate (15 for every two months in office), then the second Trump administration will have accumulated 360 nationwide injunctions by the time the president leaves office—and a grand total of 424 over the course of both of Trump’s terms. However, there have been a total of over 45 rulings or more targeted injunctions leveled against the second Trump administration overall, according to The New York Times. //
The Harvard Law Review’s tally (published in 2024) also noted the increased partisanship of the federal judiciary. Of the six injunctions imposed against Republican Bush, half came from judges appointed by Democrats and half from judges appointed by Republicans. Of the 12 injunctions imposed against Democrat Obama, seven (less than 60%) were issued by judges appointed by Republicans. Of the 64 injunctions Trump’s first Republican administration was slapped with, 92.2% were issued by judges appointed by Democrats. All—100%—of the 14 injunctions issued against Democrat Biden came from Republican-appointed judges. //
The growing use of nationwide injunctions by inferior courts, the prestigious legal journal warned, necessarily has a chilling effect on the development of law and precedent. When several inferior courts of different jurisdictions issue conflicting rulings, the matter often winds up at the U.S. Supreme Court, where a definitive standard is set for addressing similar issues going forward. However, nationwide injunctions halt the continued challenging of executive orders, executive actions, or laws, since, as the Harvard Law Review pointed out, various other inferior courts simply refuse to take up related cases, determining that there can be no demonstration of injury in fact while the nationwide injunctions are in place.
Where were these Guardians of Justice when Joe Biden illegally invited and lured in millions and millions of "new Americans and undocumented immigrants?" Where? Why nowhere, of course. These robes seemingly had very little to say about U.S. Code § 1325 (based on Article IV, Section IV of the Constitution) and its undeniable violation. A violation that has, and will continue to for decades, fundamentally changed the history of America. Letting in millions and millions of aliens, and then making the citizenry pay for their everything from schooling, health care, drunk driving deaths, rapes, murders, and any other crimes they committed while here has changed life for us all on many different levels.
It is unclear why the D.C. Circuit has allowed Dellinger’s Motion to Dismiss to linger, as opposed to denying it with a note reprimanding his attorneys to follow the controlling procedures for dismissing a case. But by failing to immediately nix Dellinger’s efforts to manipulate the court, we are now seeing other litigants, such as those in the Maryland case challenging the termination of DEI initiatives, trying similar tacks.
The appellate courts need to make clear to litigants that such jockeying will not work, and then they need to put an end to the outrageous preliminary injunctions. And if they refuse to do so, the Supreme Court needs to end its delusional view that it is maintaining the reputation of the judicial branch by allowing the normal process to play out in these politically charged cases—because there is nothing normal about the lower courts’ efforts to unconstitutionally control the Executive Branch.
The Republicans may have complete control of Congress, but President Trump still has a major roadblock to carrying out his agenda — the courts.
The lower courts blocked more of Trump’s executive orders in his first two months of office than they did for other recent commanders in chief during their entire terms.
The lower courts have slapped at least 15 national injunctions against Trump so far this year.
That drastically outpaces the six against former President George W. Bush during his entire presidency and the 12 against former President Barack Obama and the 14 against former President Joe Biden for their whole time in office, too, according to a tally from Harvard Law Review.
Stephen Miller @StephenM
·
It takes 5 Supreme Court justices to issue a ruling that affects the whole nation. Yet lone District Court judges assume the authority to unilaterally dictate the policies of the entire executive branch of government.
Benjamin Weingarten @bhweingarten
Replying to @EricTeetsel
There’s a credible case to be made that any one of around 700 district court judges possesses more power than any one Supreme Court justice, given the unilateral power to issue a universal injunction
8:34 AM · Mar 20, 2025. //
How it works: Lawsuits against the federal government start in a district court — there are more than 600 district-court judges — then can move to an appeals court, then the Supreme Court.
In the old days, district courts' rulings only applied to the parties before them. But since the beginning of the Obama administration, those judges have become increasingly willing to say their rulings apply nationwide — the same scope a Supreme Court decision has. //
I’m open-minded enough to consider that some of these rulings are in fact fair, but the sheer number of them—especially compared with historical precedent—is simply impossible to ignore.
And deeply troubling.
When the media omit the facts that matter most, it’s clear that they are more interested in undermining the Trump administration in the court of public opinion than in informing the public about the very real threats America faces.
The Supreme Court has become a paper tiger, failing to hold defiant lower courts accountable when they make rogue decisions. //
Lower court federal judges across the country are standing athwart the American people’s will to allow the Trump administration to cut government programs and deport violent gang members from the country. But these unelected judges have a long-running pattern of clinging to their status quo, even in defiance of the Supreme Court, because the high court refuses to rein them in.
The Supreme Court has the responsibility to make sure its subsidiary courts follow its directives — often by taking more cases, and making their precedent unambiguous. Arrogant, active, and open defiance on some of the most important issues, however, has been the norm from these lower courts for years, and a majority on the high court has persistently refused to stop them. //
The Court’s majority again refused to take a case wrongly decided by lower courts, when the Biden administration attempted to fine a Medicare-funded work-around for Dobbs, forcing hospitals in Idaho, which had outlawed almost all abortions, to perform them anyway.
“Shortly before Idaho’s law took effect, President Biden instructed members of his administration to find ways to limit Dobbs’s reach,” Alito wrote in a dissent for Moyle v. United States. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”
It’s not just abortion, it’s Second Amendment rights as well. Lower courts repeatedly waged war against DC v. Heller, the Supreme Court precedent that struck down a law that banned handgun ownership in Washington, D.C., and clarified that the Second Amendment does not just protect a right to self defense for militia purposes.
In a 2018 case that would have allowed the Court to enforce its own precedent, the Court ran away, and had done so for years, Thomas wrote in yet another dissent slamming lower courts for defying the high court.
“Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years … If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari,” Thomas said before listing other rights that the Court would have taken cases on. “The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.” //
The Court used to enforce its precedent, like when lower courts attempted to defy Brown v. Board of Education and its mandate to racially integrate schools. It used to do it because it has always been part of the job — precedential decisions are not ‘one-and-done’ adventures. They will need clarification, parameters set, or clarity for lower courts to tell them the high court meant what it said.
At least one federal judge, James C. Ho of the Fifth Circuit Court of Appeals, has publicly diagnosed at least part of the problem with the court refusing to take cases: A debilitating lack of fortitude among a vast array of federal judges.
In a 2023 speech at the Heritage Foundation, Ho said many federal judges are afraid to make tough decisions, or take tough cases, because they are afraid of public backlash for making the right decision:
If you plan to be faithful to the Constitution in every case, no matter how unpopular that may be, gold stars are not in the cards for you. But that’s the job. Judges don’t swear an oath to uphold the Constitution part of the time: We swear an oath to uphold the Constitution all of the time.
If you’re an originalist only when elites won’t be upset with you—if you’re an originalist only when it’s easy — that’s not principled judging. That’s fair-weather originalism. We’re not binding ourselves to the text if we only follow it when people like the result.
“When you look at the résumé of a typical federal judge, you often see a bunch of fancy credentials,” Ho added to the argument in a 2024 piece for the National Review. “People who have devoted their whole lives to collecting gold stars tend to be motivated by one overarching objective: getting more gold stars. If that’s what drives you, then the threat of public scolding can be a powerful motivator.”
The “booing of the crowd,” Ho said, “is not going away anytime soon,” and if judges cannot handle it, they should probably find other work.
At what point does judicial review turn into judicial rule?
This problem isn’t just about these issues or executive power — it’s about the broader politicization of the judiciary. When a judge blocks a policy because he personally opposes it, rather than because it violates the Constitution, he is no longer functioning as a neutral arbiter. //
Even the Supreme Court has recognized the dangers of this judicial overreach. In Trump v. Hawaii (2018), Chief Justice John Roberts warned lower courts that they do not have the authority to micromanage national security decisions made by the executive. Yet lower courts continue to ignore that warning, issuing nationwide injunctions based on political discomfort rather than constitutional law.
The media will cast Trump’s decision to ignore Boasberg’s ruling as reckless, lawless, or authoritarian. But what’s truly reckless is allowing the judiciary to continue seizing power it does not have. There is precedent for presidents pushing back against judicial overreach. Abraham Lincoln ignored a Supreme Court ruling in 1861 when Chief Justice Roger Taney attempted to block his suspension of habeas corpus during the Civil War. Andrew Jackson famously refused to comply with a Supreme Court decision in Worcester v. Georgia, arguing that the executive branch — not the judiciary — was responsible for enforcement. Both of those decisions were controversial. Both were necessary.
The ACLU is seeking to stop the executive branch from removing five plaintiffs. D.C. District Judge James Boasberg hastily took command and control over the latest iteration of lawfare, emergently agreeing to consider the case and issuing orders camouflaged in legitimacy. Judge Boasberg’s orders, actions, and reactions are laden with plain error.
From the onset, Boasberg failed to recognize his court lacks the jurisdiction to hear this case. Why? The ACLU filed this case in the District of Columbia. The five Venezuelan plaintiffs represented by the ACLU are not detained in D.C., but in New York and Texas. The Supreme Court ruled in Rumsfeld v. Padilla that no court has jurisdiction over a habeas petition unless those filing the petition are detained in the district in which it was filed.
Boasberg was also quick to accept the plaintiffs’ premise that the Alien Enemies Act (AEA) is a power properly exercised only during a time of war. This is patently false. Any plain reading of the law makes it clear that the AEA is an appropriate power to invoke not only during a time of war, but when the president determines there has been an invasion or predatory incursion. Even more persuasive is the Supreme Court’s ruling in Ludecke v. Watkins that the AEA extends beyond wartime. And without a statutory definition of “invasion” or “predatory incursion,” it is the judgment of the president alone to determine if such has occurred. This national security determination is a non-justiciable political question and the Supreme Court has repeatedly informed the intellectually curious that political questions are not reviewable by a court. //
Boasberg has gone too far and too fast to retreat, so this skirmish will continue until the Supreme Court loads up the Article II canons on his position (see what I did there). Through his orders and admonitions, Boasberg has tactlessly given imprimatur to the “legal strategy” of disrupting the Trump presidency at all costs. Boasberg has called DOJ’s response to brash authority as “woefully insufficient,” but, candidly, his stewardship of this case thus far has been nothing more than woeful.
President Trump’s adversaries were determined to take his freedom, his fortune, and even his life. Those efforts thankfully failed. But his enemies remain undeterred.
This is just lawfare by other means.