Activist Judges Are Pulling a Reverse Marbury v Madison

Are we to be a nation ruled by one man?

I’m not talking about President Donald Trump, I’m talking about district court judges who increasingly abuse their position to thwart the president’s actions on a nationwide level.

The Trump administration has racked up victory after victory as Democrats fail to mount an effective counter. Right now, all Democrats have is tantrums and torched Teslas to hang their hats on. It’s probably why the party is the most unpopular it’s been in a generation.

The one area the Left is having success is with the courts, where activist federal judges have used and abused their position to shut down Trump’s policies. It’s interesting to see the Left turn to the courts as a general strategy after they’ve tried for years to demolish the Supreme Court for issuing some rulings they don’t like, but here we are.

If they were trying to take down the courts from without before, they are now doing so from within. They’ve found activist judges to stretch the law and issue universal injunctions on Trump’s policies and have issued a few ridiculous temporary restraining orders as well.

These actions are delivering temporary “wins” for some judges, but are hardly boosting the power of the courts. In the end, the result may be the opposite.

Universal injunctions are getting particularly out of control. They aren’t just being used as a short-term way to protect a particular plaintiff, they are being used by lower courts to shut down policies nationwide, even though the Supreme Court has ruled that such injunctions are to be used only under “extraordinary circumstances.”

Many on the Left have tried to frame these actions as simply a part of judicial review, of the courts exercising their legitimate power to decide constitutional questions. But in some ways what these judges are doing is the exact opposite of what Chief Justice John Marshall did to establish the principle of judicial review in the famous Marbury v Madison.

I’ll make this history lesson short. The issue at stake in Marbury v Madison was the constitutionality of a “midnight” appointment of William Marbury by the outgoing President John Adams.

Marbury didn’t receive his commission, and the incoming administration of Thomas Jefferson refused to accept his appointment. Marshall reasoned in the case that while Jefferson’s Secretary of State James Madison was wrong to refuse Marbury, the Supreme Court didn’t have the jurisdiction under the Constitution to issue a writ and force Madison to seat him.

The brilliance of this decision was that it affirmed the notion of judicial review but without directly challenging the executive branch and taking the chance that the Jefferson administration would simply ignore the ruling. There was little Marshall could do to force them to do anything. So, in ruling as he did, the chief justice could be right on the law and prevent a general attack on the court by the executive branch.

Today’s rampant use of court shopping to find judges who will issue universal injunctions is not just a travesty in each individual case. What this is doing is damaging the long-term legitimacy of the courts entirely as the more powerful political branches reassert control.

House Speaker Mike Johnson said on Tuesday that the extreme nature of the injunctions might push Congress to defund and eliminate courts.

“We do have the authority over the federal courts, as you know. We can eliminate an entire district court. We have power of funding over the courts and all these other things,” Johnson said on Tuesday according to NBC News. “But desperate times call for desperate measures, and Congress is going to act.”

Now a broad-based attack on the courts would be an unwise maneuver, but if the public comes around to the idea that some federal courts are out of control and abusing power they don’t have, then this fight won’t work out well for the Judiciary or the country.

The Judiciary must follow the Constitution too. Substituting its ability to review laws with the prerogative to rule is an inversion of how the courts are supposed to operate in America.

What the nationwide injunctions are doing, besides being downright unlawful, is to put the Trump administration in a position whereby it could easily just ignore the ruling. In fact, in the case of Federal district judge James E. Boasberg’s ruling about a flight of Tren de Aragua gang members from South America out of the country, Trump officials could simply do nothing and all and be in violation of the court.

Ordering a plane to turn around mid-flight to bring a handful of what the Trump administration called “terrorists” home was never going to fly.

This is a reverse John Marshall. These district court judges are piddling away the reputation of the judiciary—the only real source of its power–to win a few partisan victories. Maybe they don’t care. If they shut down the Trump administration for a short time while damaging the Judiciary, they may be fine with that if they think it will help them create enough chaos to crawl back into power.

Hopefully, the Supreme Court will weigh in soon and issue a course correction. If Chief Justice John Roberts really is the institutionalist he’s been portrayed as, he should be keenly interested in restoring order in the courts to save them from themselves.

The post Activist Judges Are Pulling a Reverse Marbury v Madison appeared first on The Daily Signal.