How Trump can dismantle the imperial judiciary once and for all

When Alexander Hamilton wrote in Federalist No. 78 that the Supreme Court would wield “neither force nor will” over politics, he never envisioned the judiciary having the final say on every political decision in the country. Now imagine his reaction if he were told during the American Revolution that, in the future, a single lower-court judge could unilaterally grant citizenship to illegal immigrants’ children, override the will of elected branches, and even force the Centers for Disease Control and Prevention to maintain information about transgenderism on its website. He might have preferred staying under King George’s thumb.

In just the past two weeks, liberal judges in carefully chosen jurisdictions have issued rulings that reshape major policy decisions. They have effectively granted citizenship to children of future illegal immigrants, blocked Trump from offering federal workers early retirement buyouts, ordered the National Institutes of Health to maintain wasteful grant programs, mandated that male inmates be housed in women’s prisons, restricted access to key government data, and dictated appropriations for USAID staff and private organizations.

No one should assume that an unconstitutional court ruling is binding on Congress or the president.

What’s next?

The possibilities are endless if the country continues to accept the dangerous myth that every ruling from a federal judge is the final, unquestionable law of the land — even on deeply political questions. It’s time to challenge this unchecked judicial overreach.

A generation of politicians have been brainwashed into believing that a judge can, with a mere stroke of a pen, establish a universally binding political rule that other branches must obey — unless another court overturns it. In reality, each branch of government has its own tools and resources to influence policy and is obligated to use them in accordance with its interpretation of the law and the Constitution. Some may argue that allowing one branch to have the final say simplifies governance, but that is tyranny, not constitutional government. It’s time for Trump to make this distinction clear.

Courts render judgments — that’s all

Yes, courts issue judgments in civil and criminal litigation. But as Abraham Lincoln explained in his first inaugural address, it is a legal fiction to assume that “the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions.”

Lincoln strongly disagreed with the Supreme Court’s ruling in Dred Scott v. Sandford, which declared that black people were property without rights. He signed the Emancipation Proclamation during the war, and ultimately, former slaves were granted citizenship under the 14th Amendment. At the end of the day, the executive branch issues citizenship documents, not the judiciary. Lincoln had a constitutional duty to interpret the law as he understood it.

Trump must assert Lincoln’s understanding of separation of powers. Lincoln made it clear: The Constitution, not any single branch of government, is the law of the land. When courts issue rulings, those rulings bind only the parties involved and serve as precedent within the judiciary. “We nevertheless do oppose that decision as a political rule,” Lincoln said in his sixth debate with Stephen Douglas.

Trump must make it clear that lower courts are not equal to the president in authority — let alone supreme over him on every policy matter.

In other words, no one should assume that an unconstitutional court ruling is binding on Congress or the president.

When asked what could restrain Congress if backed by a majority of its constituents in enacting an unconstitutional law, James Madison stated that ultimate power resides with the people. “Nothing within the pale of the Constitution but sound argument [and] conciliatory expostulations addressed both to Congress [and] to their Constituents,” he explained.

Petitioning a court is one avenue to challenge unconstitutional actions, but it is not the final one. As Thomas Jefferson said late in his life, “Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without regard to what the others may have decided for themselves under a similar question.” Ultimately, public engagement and elections determine the balance of power.

No supremacy

If the Framers had intended for the judiciary to hold supremacy over the other branches, they would not have left its entire structure, purview, and power to the discretion of Congress. In fact, Congress could, if it so desired, abolish all lower courts and leave only a single Supreme Court justice with jurisdiction over the four categories granted under Article III, Section 2.

From the outset, Trump must make it clear that lower courts are not equal to the president in authority — let alone supreme over him on every policy matter. According to Article I, Section 8, and the judicial vesting clause of Article III, Section 1, Congress has full authority over the creation of “inferior courts and tribunals.”

In fact, it was never a given that Congress would establish lower courts at all. During debates at the Constitutional Convention, some delegates proposed allowing state courts to oversee most federal issues, with a direct appeal route to the Supreme Court. This historical reality underscores that the judiciary was never meant to dictate policy to the executive and legislative branches.

Roger Sherman, one of the most respected Founding Fathers and a drafter of the Declaration of Independence, wrote, “The constitution does not make it necessary that any inferior tribunals should be instituted, but it may be done if found necessary.”

Nobody wants an imperial presidency, but an imperial judiciary is an even greater threat.

In 1812, the Supreme Court ruled that lower courts “possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer.” In Sheldon v. Sill (1850), the Court reaffirmed this principle, ruling that “Congress, having the power to establish the courts, must define their respective jurisdictions.” Justice Robert Grier, writing for a unanimous Court, left no ambiguity: “Courts created by statute can have no jurisdiction but such as the statute confers.”

Even the Supreme Court is not supreme over the other branches — only over the congressionally created “inferior” courts. The Constitution mandates only the position of chief justice and grants original jurisdiction in a few specific cases, such as disputes between states and matters involving foreign diplomats. As for its appellate jurisdiction, Congress vested the court with that power in 1789, and under Article III, Section 2, Congress retains the authority to make exceptions and regulations governing its scope.

No logical person can argue that the Framers intended the courts — even the Supreme Court — to reign supreme over the other branches. If its entire structure depends on legislation and Congress can strip it of jurisdiction over nearly any issue at any time, the judiciary was never meant to be the final authority over all political questions.

Nobody wants an imperial presidency, but an imperial judiciary — one that is unelected and unaccountable — is an even greater threat. If Democrats believe Trump exceeded his authority by firing USAID workers or blocking funding for private organizations, they can refuse to pass a budget bill unless it includes that funding. Some have already threatened to do so.

Ultimately, the American people — not the courts alone — will decide who is right through public debate and the looming threat of a government shutdown. Courts cannot force Trump to fund foreign countries any more than Trump can dictate how judges rule in a murder trial.

A republic, not a rule by judges

It wasn’t until 1958, in Cooper v. Aaron, that Chief Justice Earl Warren brazenly declared the Supreme Court “supreme in the exposition of the law of the U.S. Constitution” and called it “a permanent and indispensable feature of our constitutional system.” No previous generation believed in such a dangerous myth — that the weakest and unelected branch should rule over the others. It’s time to restore the balance that existed before Cooper v. Aaron.

The Congressional Research Service noted in a 2017 report that the “early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” Members of Congress once took their duties seriously, and as the CRS observed, they never passively accepted the courts as having “a final or even exclusive role in defining the basic powers and limits of the federal government.”

We must stop accepting the false premise that the judiciary has the authority to police the other branches while also serving as the sole enforcer of its own boundaries of power. This idea is tyrannical and contradicts the fundamental structure of a constitutional republic with three coequal branches, in which the judiciary is the weakest. As James Madison put it, “If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.”

So what happens when the legislature and the president disagree? Do we treat the courts as the final arbiter, as nearly everyone on both sides of the Kavanaugh confirmation hearing seemed to believe? Not at all.

In his second “Helvidius” essay, Madison — debating Alexander Hamilton over the Washington administration’s stance toward France — argued that such friction is not only inevitable but healthy. He wrote:

It may happen also that different independent departments, the legislative and executive, for example, may in the exercise of their functions, interpret the constitution differently, and thence lay claim each to the same power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution.

In other words, the branches are supposed to fight it out. This is the essence of a functioning republic — messy, but far superior to the North Korean-style consolidation of power in an unelected judicial branch, which has become the norm today.

It’s time to restore the proper balance.