Category: Judicial supremacy
The courts are running the country — and Trump is letting it happen
One of the most consequential developments of 2025 has received far less scrutiny than it deserves: the steady surrender of executive authority to an unelected judiciary.
President Trump was elected to faithfully execute the laws of the United States, yet his administration increasingly behaves as if federal judges hold final authority over every major policy decision — including those squarely within the president’s constitutional and statutory powers.
Judicial supremacy thrives on abdication. It advances because presidents comply, lawmakers defer, and voters are told this arrangement is normal.
By backing down whenever district courts issue sweeping injunctions, the administration is reinforcing a dangerous precedent: that no executive action is legitimate until the judiciary permits it. That assumption has no basis in the Constitution, but it is rapidly becoming the governing norm.
The problem became unmistakable when federal judges began granting standing to abstract plaintiffs challenging Trump’s deployment of the National Guard to protect ICE agents under attack. Many assumed such cases would collapse on appeal. Instead, the Supreme Court last week declined to lift an injunction blocking the Guard’s deployment in Illinois, signaling that the judiciary now claims authority to second-guess core commander-in-chief decisions.
Over the dissent of Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, the court allowed the Seventh Circuit’s decision to stand. That ruling held that violent attacks on ICE agents in Chicago did not amount to a “danger of rebellion” sufficient to justify Guard deployment and did not “significantly impede” the execution of federal immigration law.
That conclusion alone should alarm anyone who still believes in separation of powers.
No individual plaintiff alleged personal injury by a Guardsman. No constitutional rights were violated. The plaintiff was the state of Illinois itself, objecting to a political determination made by the president under statutory authority granted by Congress. Courts are not empowered to adjudicate such abstract disputes over executive judgment.
Even if judges disagree with the president’s assessment of the threat environment, their opinion carries no greater constitutional weight than his. The commander in chief is charged with executing the laws and protecting federal personnel. Courts are not.
If judges can decide who has standing, define the scope of their own authority, and then determine the limits of executive power, constitutional separation of powers collapses entirely. What remains is not judicial review but judicial supremacy.
And that is precisely what we are witnessing.
Courts now routinely insert themselves into immigration enforcement, national security decisions, tariff policy, federal grants, personnel disputes, and even the content of government websites. The unelected, life-tenured branch increasingly functions as a super-legislature and shadow executive, vetoing or mandating policy at will.
RELATED: Judges break the law to stop Trump from enforcing it
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What, then, remains for the people acting through elections?
If judges control immigration, spending, enforcement priorities, and foreign policy, why bother holding congressional or presidential elections at all? The Constitution’s framers never intended courts to serve as the ultimate policymakers. They were designed to be the weakest branch, confined to resolving concrete cases involving actual injuries.
Trump’s defenders often argue that patience and compliance will eventually produce favorable rulings. That belief is not only naïve — it is destructive.
For every narrow win Trump secures on appeal, the so-called institutionalist bloc on the court — Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett — uses it to justify adverse outcomes elsewhere. Worse, because lower courts enjoin nearly every significant action, the administration rarely reaches the Supreme Court on clean constitutional grounds. The damage is done long before review occurs.
Consider the clearest example of all: the power of the purse.
Congress passed a budget reconciliation bill explicitly defunding Planned Parenthood. The bill cleared both chambers and was signed into law. Under the Constitution, appropriations decisions belong exclusively to Congress.
Yet multiple federal judges have enjoined that provision, effectively ordering the executive branch to continue sending taxpayer dollars to abortion providers in defiance of enacted law. Courts have not merely interpreted the statute; they have overridden it.
That raises an unavoidable question: Does the president have a duty to enforce the laws of Congress — or to obey judicial demands that contradict them?
Continuing to fund Planned Parenthood after Congress prohibited it is not neutrality. It is executive acquiescence to judicial nullification of legislative power.
The same pattern appears elsewhere.
Security clearances fall squarely within executive authority, yet the first Muslim federal judge recently attempted to block the president from denying clearance to a politically connected lawyer. Immigration, long recognized as a sovereign prerogative, has been transformed by courts into a maze of invented rights for noncitizens — including a supposed First Amendment right to remain in the country while promoting Hamas.
States fare no better. When West Virginia sought to ban artificial dyes from its food supply, an Obama-appointed federal judge intervened. When states enact laws complementing federal immigration enforcement, courts strike them down. But sanctuary laws that obstruct federal authority often receive judicial protection.
Heads, illegal aliens win. Tails, the people lose.
RELATED: The imperial judiciary strikes back
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What we are witnessing is adverse possession — squatter’s rights — of constitutional power. As Congress passes fewer laws and the executive hesitates to assert its authority, courts eagerly fill the vacuum. In 2025, Congress enacted fewer laws than in any year since at least 1989. Meanwhile, judges effectively “passed” nationwide policies affecting millions of Americans.
This did not happen overnight. Judicial supremacy thrives on abdication. It advances because presidents comply, lawmakers defer, and voters are told this arrangement is normal.
It is not.
Trump cannot comply his way out of this crisis. No president can. A system in which courts claim final authority over every function of government is incompatible with republican self-rule.
The Constitution does not enforce itself. Separation of powers exists only if each branch is willing to defend its role.
Right now, the presidency is failing that test.
Judges break the law to stop Trump from enforcing it
Nearly 30 years ago, Congress recognized that the country could not litigate its way out of an immigration crisis.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act, bipartisan majorities created expedited removal for anyone who failed to prove two years of physical presence in the United States. Anticipating a cottage industry of defense attorneys forcing the government to prove duration of unlawful stay, Congress also stripped federal courts of jurisdiction to review expedited removal orders.
At some point, the executive must defend not only its own authority but Congress’ authority to restrain the courts.
Three decades passed with little enforcement. Now, after that long dormancy, federal judges have begun reviewing cases they have no statutory authority to hear and are attempting to block President Trump from using expedited removal nationwide.
Over the line
On November 22, the U.S. Court of Appeals for the D.C. Circuit refused the Justice Department’s request for a stay in Make the Road New York v. Noem. The case challenges Trump’s policy expanding expedited removal to illegal aliens apprehended anywhere in the country, provided they cannot prove two years of continuous presence. Administrations since the 1990s ignored the statute and limited expedited removal to aliens caught at or near the border.
A district judge, despite clear statutory limits, reviewed the case and issued an injunction against most uses of expedited removal. That move set the stage for this week’s order from the D.C. Circuit — another step in a long pattern of courts seizing authority Congress explicitly withheld.
A watershed moment
The Supreme Court recently upheld the administration’s use of the Alien Enemies Act to quickly remove alien gang members. That ruling helped, but it cannot resolve the broader problem: Most illegal entrants do not fall into the “enemy combatant” category. If every non-gang-member can exhaust layer after layer of due process after invading our country, immigration enforcement collapses under its own weight.
But the central issue in this dispute is not due process at all. The decisive point is that IRAIRA explicitly authorizes expedited removal anywhere in the country and explicitly bars the federal courts from issuing “declaratory, injunctive, or other equitable relief” in any action challenging an expedited removal order.
The lone exception applies to aliens who can prove, by a preponderance of the evidence, that they possess a lawful right to remain — such as a granted asylum application. Even then, Congress set a firm 60-day window to bring such a claim. The plaintiffs in this case missed that deadline.
This challenge does not implicate the validity of an executive action. It represents a double violation of statute: courts ignoring the law that authorizes expedited removal and ignoring the law that strips them of jurisdiction to review it. Congress anticipated this exact scenario and barred it.
What Congress must do
Congress holds plenary authority over immigration and total authority over the structure and jurisdiction of federal courts. Only adjudication of a specific case lies beyond congressional reach. As Justice Clarence Thomas wrote in Patchak v. Zinke, “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
If judges can decide every political question, define the scope of their own power, override Congress’ limits, and bind the executive even when Congress lawfully precludes them from hearing a case, the separation of powers collapses. At some point, the executive must defend not only its own authority but Congress’ authority to restrain the courts.
RELATED: The imperial judiciary strikes back
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Just say ‘no’
Many of us have called for broader statutes stripping courts of jurisdiction over deportation. But that effort means nothing if judges can simply declare those statutes unconstitutional. Judicial supremacism has no end when the executive enforces judicial usurpation against itself.
That dynamic played out again last week. A federal judge ruled that ICE may not arrest illegal aliens solely for being in the country unlawfully unless agents obtain a warrant or prove a specific flight risk — an order that contradicts decades of law. In another case, Judge Sunshine Suzanne Sykes in California certified a class granting relief to migrants who “have entered or will enter the United States without inspection” as well as those not initially detained after crossing the border.
A government that treats judicial decrees as binding even when Congress denies jurisdiction invites a permanent veto from judges over immigration enforcement. It won’t stop until the president simply says no.
The imperial judiciary strikes back
So far, more than 100 federal court judges have ruled against the Trump administration in hundreds of lawsuits filed by states, unions, nonprofit organizations, and individuals.
While some of these rulings are fairly grounded in the Constitution, federal law, and precedent, many are expressions of primal rage from judges offended by the administration and moving at breakneck speed to stop it.
Trump sometimes exceeds his authority. Activist judges substitute ‘frequently’ for ‘sometimes.’ The Constitution and the Supreme Court disagree.
According to a Politico analysis, 87 of 114 federal judges who ruled against the administration were appointed by Democratic presidents, and 27 by Republicans. Most of the lawsuits were filed in just a few districts, with repeat activist judges leading the opposition.
Lawsuits against the administration may be filed in the District of Columbia and, often, also in other districts. Initially cases are randomly assigned. Plaintiffs focus on districts with predominantly activist, progressive judges. Because related cases are usually assigned to the same judge, later plaintiffs file in districts in which related cases were assigned to friendly activists.
Conservative judges generally believe they should interpret the law and avoid ruling on political questions, while liberals tend to see themselves as protectors of their values. After 60 years of domination by activist liberals, the Supreme Court and conservative appeals court judges are finally demanding that district court judges respect the Constitution. The Supreme Court is also re-evaluating precedents established by far-left justices who substituted their values for the words and intentions embodied in the Constitution.
To date, the Supreme Court has reversed or stayed about 30 lower court injunctions blocking the administration, and appeals courts have reversed or stayed another dozen. Even Justice Ketanji Brown Jackson imposed an administrative stay on a district court decision requiring the immediate resumption of SNAP payments.
Federal judges who oppose Trump’s agenda are openly opposing the Supreme Court. In April, D.C. Chief Federal Judge James Boasberg sought to hold administration officials in criminal contempt for violating an order the court had vacated. In May, Fifth Circuit Court of Appeals Judge James Ho criticized the court’s demand that district courts act promptly on administration requests. In a September ruling, Boston Federal Judge Allison Burroughs challenged the court for expecting lower courts to treat its emergency orders as binding legal precedent.
Ten of 12 federal judges interviewed by NBC News in September, and 47 of 65 federal judges responding to a New York Times survey in October, thought the court was mishandling its emergency docket. They described orders as “incredibly demoralizing and troubling” and “a slap in the face to the district courts.”
Deservedly so. Though the Supreme Court and appeals courts judges have rebuked district court judges for ignoring higher courts and abusing their authority, they continue to do so with rulings focused on identity politics and a progressive lens on the woes of immigrants, minorities, women, and workers. They likely expect to be reversed on appeal, but they secure wins by causing delay and creating fodder for progressive activists to rally their supporters.
There is little that can be done about these judges. Removal requires a majority vote in the House and a two-thirds vote in the Senate. With Democrats supporting these judges, those votes are unrealistic.
RELATED: Who checks the judges? No one — and that’s the problem.
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Just a few of the dozens of examples of politicized judicial decisions:
In May, Myong Joun, a Biden appointee in Boston, enjoined layoffs at the Department of Education in a decision featuring an encomium to its anti-discrimination mission. The Supreme Court stayed his injunction.
Despite this precedent, Susan Illston, a Clinton appointee in San Francisco, issued a nationwide injunction barring the administration from firing union employees during or because of the government shutdown. Ignoring settled law, she bemoaned the “trauma” of workers who had been under “stress” ever since Trump’s election. Illston gambled correctly that the shutdown would end before her order could be reversed.
Indira Talwani, a federal district court judge in Boston, went further. Declaiming her fear that defunding Planned Parenthood would deprive women of access to abortions, she elided Article I of the Constitution, which requires all federal spending to be approved by Congress, nullifying a duly enacted statute that suspended funding of large abortion providers for a year. By the time she is reversed, the suspension will have expired.
In June, after San Francisco Federal Judge Charles Breyer enjoined Trump from federalizing the California National Guard, a three-judge panel of the Ninth Circuit unanimously stayed his order, explaining that on military matters, the president’s judgment stands unless it is dishonest. Nonetheless, Oregon Federal Judge Karin Immergut subsequently blocked deployments in Portland, substituting her assessment of the situation for the president’s.
An Obama-appointed judge recently interviewed by NBC explained, “Trump derangement syndrome is a real issue. As a result, judges are mad at what Trump is doing or the manner he is going about things; they are sometimes forgetting to stay in their lane.”
Trump sometimes exceeds his authority. Activist judges, who self-reverentially believe progressive technocrats and judges are democracy’s guardians, substitute “frequently” for “sometimes.” The Constitution and the Supreme Court disagree.
