Real constitutional crises are relatively rare in American history. In 1803, Chief Justice John Marshall could have sparked one with his decision in Marbury v. Madison. In it, he deftly asserted that the Supreme Court had the power to invalidate laws or actions it saw as unconstitutional. That assertion didn’t cause a crisis in the fledgling nation mainly because it came in a decision that supported the Jefferson administration, and as such the president was not inclined to protest.
Then of course there was President Franklin Roosevelt’s court-packing scheme in 1937. In 1936, in the face of continuing 5-4 decisions going against his New Deal legislation, FDR’s Attorney General Homer Cummings proffered an idea penned by one of his predecessors in 1914, James Clark McReynolds: for every justice older than 70, a new justice should be appointed. Ironically, in 1936 McReynolds was a 75-year-old associate justice.
FDR’s legislation died in committee, but it would likely not have survived even if it had made it out of committee as it faced a great deal of bipartisan opposition. But it didn’t really matter because Justice Owen Roberts, who had been a thorn in the side of much of the New Deal legislation, joined the leftists in upholding West Coast Hotel Co. v. Parrish in 1937 and became a relatively reliable New Deal supporter going forward.
Crisis might not be the right word in either of those situations because, despite their long-term implications for the government, neither imminently threatened government functionality. It most certainly is the right word for what America and the Trump administration are facing right now, and does threaten government functionality.
The Trump administration has faced an unprecedented number of nationwide injunctions from federal courts on a wide range of issues from deportations to firings of federal employees to paying for sex change surgeries for military members and more. Across the country and in virtually every area of government, it seems federal judges have suddenly decided their role is to micromanage the executive branch. The first Trump administration faced an unprecedented number of injunctions, and the first five months the second has faced even more.
It appears as if the federal judiciary has declared war on the executive branch. That is literally a constitutional crisis.
By continuing to face this crisis with appeals to higher courts, the president is bringing a knife to a gun fight. He should instead bring a howitzer. He should make it clear that his administration does not recognize these courts’ power to issue nationwide injunctions and will no longer recognize them as legal.
Tucked away in the bowels of the travesty that is the Big Beautiful Bill is one golden nugget that attempts to obviate the problem. It states that courts cannot use appropriated funds to enforce contempt citations for failure to comply with injunctions or temporary restraining orders.
That’s an interesting strategy, but it’s a band-aid approach to a cut artery. It still leaves the option for courts to continue to micromanage policy from the bench and simply include a funding caveat in their orders or otherwise find funding sources for enforcement. No, the president needs to face this crisis head on and make it perfectly clear that the courts are acting unconstitutionally and that he will no longer be bound by them.
The obvious consequence will be gnashing of teeth from leftists and much of the swamp-infested GOP. “Tyrant,” they’ll call him. “Dictator,” they’ll brand him. “He thinks he’s a king,” they’ll claim. But there’s nothing new in any of that. Beyond the shrieking, something more substantial will result of the administration’s new clarity. It will force Congress and/or the Supreme Court to act.
The reality is, there is no basis in the Constitution for these nationwide injunctions and courts playing the role of executive. These rogue courts have undermined the legitimacy of the judicial system and with it the larger government as a whole.
Once the administration makes it crystal clear that they do not recognize the legitimacy of these rogue courts, Congress or SCOTUS will have to step up and provide clarity. Whether in legislative action by Congress or direction from SCOTUS or both, something will have to be done to begin to repair American’s confidence in the judiciary.
That’s quite important in a nation of laws like the United States, where citizens are largely free and most obey laws because they respect the legitimacy of the government. If that legitimacy is undermined, then social order follows suit. Look no further than cities where the police have been demonized and local governments operate like banana republic grift machines. Crime and corruption are rampant as law-abiding citizens and for-profit businesses abandon them for safer, more functional environs.
The ideal solution is Congress passing legislation that makes explicit that lower courts have no jurisdiction beyond the immediate cases before them and cannot impose injunctions beyond those specific cases. This clarity would at a minimum put an immediate end to the tyranny of unelected judges seeking to elevate themselves above the executive.
More broadly, it would return to the political realm the work of legislation and policy implementation. No more would plaintiffs who represent a sliver of the population or hold views far outside the Overton Window be able to venue-shop for extremist judges and use extremist courts to impose their ideas on the entire nation. There’s nothing wrong with being a sliver of the population or having ideas outside the common window, but the place to debate policy ideas is in the public square, not the dark corners of judicial chambers.
This crisis exists today because the left has moved so far to the fringe that they cannot convince Americans to vote for their positions at the ballot box. But that’s where the Constitution says they should be debated. If President Trump wants to have any chance of a successful second term, he will force Congress’s hand and explain to the American people why he’s doing it.