WASHINGTON, D.C. – In a divided America, no fight appears more important than the current constitutional clash playing out between the Trump administration and federal judges. Democrats see a White House determined to seize additional executive power and therefore see national injunctions as a key safeguard.
“Donald Trump is a lawless, angry man,” Senate Minority Leader Chuck Schumer (D-NY) said recently. “He thinks he should be king. He thinks he should do whatever he wants, regardless of the law, and he thinks judges should just listen to him.”
The executive order list is a long one, ranging from ending birthright citizenship to banning transgender troops from the military to freezing federal spending and firing federal employees. The fight grabbing the most attention is over foreign policy and the White House move to deport illegal immigrants believed to be notorious gang members.
Professor Brad Jacob with Regent University says presidents pushing for more power is nothing new but it’s now reaching uncharted territory. “You can actually go back at least as far as President Obama, but it’s gotten worse, and the beginning of the second Trump term has just taken this to a whole new level, where the president, almost every day, is issuing executive orders that are making big, substantive changes in the law, and he doesn’t have authority to do that.”
The White House maintains President Trump does have the authority. When a district judge tried to stop sanctioned flights deporting illegal immigrants, Vice President JD Vance posted on social media that “judges aren’t allowed to control the executive’s legitimate power.”
Conservative lawyers like Joe diGenova point to the U.S. Constitution and the theory known as the unitary executive. “In Article Two, it mentions only one executive branch official, the president of the United States,” Joe diGenova says. “All of those other people who work for the federal government now, 2.9 million, work for that one person in Article Two, the president. Therefore, he has unilateral authority to conduct the business of the executive branch any way he sees fit.”
As the Trump administration plows forward with its agenda, federal district judges have put some moves on hold, issuing a record 17 nationwide injunctions in his first three months in office.
White House Press Secretary Karoline Leavitt wonders what the founders would think of this struggle. “They would be rolling over in their graves if they saw some of these cases and some of these judges who are being judicial activists rather than true arbiters of the law, and trying to stop the president of the United States from executing his agenda,” she said.
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The groups against President Trump and his agenda are employing “forum shopping,” essentially looking for a venue in front of a judge with a liberal track record likely to rule in their favor. And it’s working.
“We’re witnessing what amounts to a kind of a judicial revolt on the part of district judges who have been appointed by Obama and Biden in particular,” says former law clerk Robert Charles who served in both the Reagan and Bush administrations. “Obama, Biden, and some of these Carter judges are actually inserting things into the law, asserting authorities for the inferior courts below the Supreme Court that they simply don’t have under the Constitution.”
Not all see it that way. “The question is, does the judge allow his or her personal feelings to influence how they decide cases?” says Professor Jacob. “Most of these decisions I have seen don’t seem unreasonable by a judge…I do not think there’s any organized, massive resistance.”
The current anti-Trump pattern indicates otherwise. The non-partisan Congressional Research Service identified 86 nationwide injunctions against Trump policies in his first term. During Joe Biden’s presidency, judges issued 28.
Article Three in the U.S. Constitution gives Congress power to regulate the court system, and some lawmakers are trying to do so. The U.S. House recently passed a law limiting district judges from issuing nationwide injunctions, saying that power should rest at higher levels, like federal appeals judges and the Supreme Court.
“More than 90 percent of these nationwide injunctions have been issued by Democrat-appointed judges,” a North Carolina congressman recently said on the House floor. “I’m calling this what it is: weaponized political lawfare.”
Some in Congress are seeking to impeach certain district judges. That would be difficult as only 15 judges have been impeached in America’s history with just 8 of them convicted by the U.S. Senate. President Trump is on the record backing impeachment, which led Supreme Court Chief Justice John Roberts to take the unusual step of rebuking the president, saying, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
Clearly, the chief justice sees a potential crisis, although White House Advisor and lawyer May Mailman believes it’s already here in the form of judicial overreach. “The way that judges keep our democracy is they constrain themselves,” Mailman tells CBN News. “They constrain themselves. They are committed to the text of the law. They’re committed to the history of the judiciary, that sort of thing, and when judges do not constrain themselves, that’s the source of the crisis.”
Confidence in both branches has taken hits. Back in 2019, 36 percent of Americans thought the White House had too much power. Now it’s 43 percent. As for judges, 19 percent thought the courts were too powerful in 2019. That number is up to 28 percent today.
“Our federal court system is still good, and it’s something that we need,” says May Mailman. “We rely on our courts. We rely on the rule of law… If courts lose the American people, if people no longer treat them as fair places to seek justice, that is the end of our American system.”
Right now, our American system is trying to find the right balance.
