One particularly powerful obstacle that has quickly materialized against the Trump Administration is the federal judiciary. Lawsuits challenging Trump’s flurry of executive orders have been filed, and federal judges have begun placing temporary injunctions on the president’s EOs.
For example, U.S. District Judge for D.C. Royce Lamberth issued a restraining order that bars the implementation of President Trump’s EO that transgender prison inmates be housed in prisons corresponding to their biological sex. Two days later in Washington State, U.S. District Judge John Coughenour placed a hold on the president’s EO that refuses to interpret the 14th Amendment as automatically granting birthright citizenship to children born to non-citizens temporarily residing in the U.S., either legally or illegally.
Trump’s opponents, who indefatigably maintain he is an autocrat prepared to wield unconstitutional power, are thrilled his administration is facing judicial setbacks and hope to see his entire agenda wither under progressive judicial scrutiny. Even many conservatives who favor Trump’s agenda are likely worried that the courts will hold up his executive orders indefinitely.
Cases like these demonstrate the vast expansion of the powers of the federal judiciary. Judicial supremacy has become established orthodoxy while departmentalism—the Founders’ view that the officers of each branch of government have a duty to interpret the Constitution as they understand it—has been eroded. Undoubtedly, President Trump will challenge these cases, compelled, as he believes, by an electoral mandate. These controversies provide a much-needed opportunity for reviving departmentalism and executive independence, thus restoring key pieces of the Constitution’s architecture.
Departmentalism: The American Tradition
We have become accustomed to thinking that interpreting the Constitution is solely the work of the courts, and that Congress and the president are at their mercy. Nevertheless, this is not the view expressed by the Federalist, Chief Justice John Marshall’s famous Marbury v. Madison decision, or any prominent American Founder. To reassert the executive power, President Trump should look to the actions and speeches of American presidents such as Thomas Jefferson, Andrew Jackson, and Abraham Lincoln for guidance.
In his 1832 message that vetoed the proposed rechartering of the Second Bank of the United States, Jackson described departmentalism in the following way:
The congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
Jefferson put it similarly in an 1819 letter: “My construction of the constitution is…that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.”
As a robust example of departmentalism and executive independence, President Lincoln refused to allow his executive orders, such as issuing passports to blacks, to be determined by what he held to be an unconstitutional Supreme Court decision in Dred Scott v. Sanford.
As with the officers of the other departments of the federal government, the chief executive takes an oath to defend the Constitution, which means he is duty-bound to interpret the Constitution and execute it to the best of his ability. President Trump should revive the understanding of the executive’s duty to interpret and faithfully defend the Constitution as explicated by Jackson, Jefferson, and Lincoln, thus fulfilling his constitutional duty to “take Care that the Laws be faithfully executed.”
President Trump’s recent salvo of executive orders indicates a strong executive looking to dictate how he will interpret and apply the laws. While the reach and constitutionality of Trump’s various executive orders will be debated sincerely by originalist scholars, many of them fall squarely within the departmentalist view of the executive.
Even President Trump’s pardons for those convicted of offenses related to January 6 and for the pro-lifers convicted under the FACE Act were done in the spirit of departmentalism. The president cannot retroactively undo the judicial proceedings and judgments of the courts in those cases. But he has the constitutional power to pardon those convicted, given that he contends they never should have been prosecuted or that they received disproportionately harsh prosecutions and sentences. In this regard, Trump is following the example of President Jefferson, who pardoned those convicted under the 1798 Sedition Act, which he considered to be an unconstitutional law.
Universal Injunctions?
President Trump’s executive orders are a bold step in the direction of reviving departmentalism, but I believe he can go further. In the cases where federal judges have enjoined the implementation of his executive orders, the president should ignore these injunctions in all other cases other than those of the particular plaintiffs who have sued and won preliminary judgments. The notion of universal injunctions, in which a single federal judge can enjoin the implementation of a law or an executive order upon any potential persons implicated, is deeply constitutionally suspect.
In his concurring opinion in Trump v. Hawaii, in which the Supreme Court upheld Trump’s executive order barring foreign nationals coming from select (predominantly Muslim) countries, Justice Clarence Thomas wrote a brief but forceful survey of why universal injunctions do not accord with the Constitution, with the British and American legal tradition, or with the authority of federal courts as derived from congressional statutes. He writes:
American courts’ tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power. For most of our history, courts understood judicial power as ‘fundamentall[y] the power to render judgments in individual cases.’ Murphy v. National Collegiate Athletic Assn…. They did not believe that courts could make federal policy, and they did not view judicial review in terms of ‘striking down’ laws or regulations.
Thomas’s understanding of the limitations of the judicial function is in line with the American tradition, the high threshold for proving standing to sue in federal courts, and the Federalist.
In Federalist 78, Alexander Hamilton argued that of the departments of the federal government, the judiciary is the “least dangerous to the political rights of the constitution.” Hamilton noted that the judiciary “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.” According to this understanding, the judiciary can only make judgments in particular cases for those implicated plaintiffs or defendants. Universal injunctions are likely an unconstitutional measure by which the federal courts have vastly expanded their power since the 1960s, as Thomas eruditely describes in his concurrence.
The Supreme Court’s judgments certainly hold great sway, because they indicate how the highest court is likely to rule in similar cases in the future, and they set the precedent for the lower federal courts and appellate courts. But the Court’s decisions are not truly the final word on constitutional interpretation, as is articulated by the Federalist, Marshall, Jefferson, Jackson, Lincoln, and many others—and as is proved by the fact that the Court has often overturned or modified its own prior decisions.
Considering the storied American tradition of departmentalism, President Trump should ignore nationwide injunctions issued from single federal judges. If such judges wish to contend that they have statutory or constitutional authority to completely block the president’s executive orders, then Trump’s stellar legal team, headed by Attorney General Pam Bondi and Solicitor General John Sauer, can challenge that position in the federal courts and request a ruling by the Supreme Court.
In the meantime, President Trump should contend that his administration is interpreting the Constitution and executing it to the best of their ability. If a federal judge rules in a particular suit that certain transgender prison inmates cannot be moved back to a men’s prison (despite being biologically male), then the president can leave those particular inmates alone and carry out his orders at every other federal prison. If a federal judge rules in a particular suit that an individual’s citizenship is valid by birthright, then those individual plaintiffs may be protected from deportation, but President Trump can authorize ICE and the U.S. Border Patrol to continue deporting any other such individuals or deny them entrance to the U.S.
Whether judicial opposition comes in the form of a temporary restraining order, a universal injunction, or even an appellate court ruling, the remedy is the same: President Trump should continue on regardless of these specific decisions. By a reasonable constitutional standard and the original meaning of judicial review, such decisions are only binding for those particular individuals implicated.
Even if the Supreme Court were to rule against Trump’s birthright citizenship executive order, that would not necessarily mean the constitutional issue is settled for all time. Bold steps like executive non-compliance with judicial orders of dubious constitutional authority are absolutely necessary to reassert executive independence and push back the expansive creep of judicial tyranny. Another step that warrants commendation is the order from Attorney General Pam Bondi to halt all federal funding of so-called sanctuary cities that are effectively nullifying federal immigration law and obstructing federal law enforcement.
For too long, we have accepted either by implicit practice or explicit declaration the doctrine of judicial supremacy as promoted by the federal courts. The power of a single federal judge to universally enjoin congressional legislation or an executive order is a clear threat to the Constitution’s separation of powers.
President Trump has a rare opportunity to reassert executive independence and departmentalism, and to push back against the distortion of our constitutional regime that has carried on unchecked for so long. While a full restoration of the Founders’ regime may be decades in the making, any step in the right direction is to be applauded.