Activist Judges Gone Wild: The President Must Resist!

What happens when power becomes concentrated in one branch of government or the hands of a few? The result is tyranny, James Madison observed in Federalist No. 47. 

Wary of this threat to our constitutional republic, our founders devised the separation of powers, a fundamental principle enshrined in our Constitution. They determined, shrewdly, that dividing the powers between the three branches of government, equipped with the ability to check each other, would protect against one branch becoming too powerful and thus, overstep its authority. 

Out of this principle emerged another crucial one - Judicial restraint -  the concept that judges should inhibit their personal opinions and defer to elected branches (executive and legislative) on matters within their constitutional purview. Put simply, judicial restraint protects against judges becoming political activists. 

With the increasing political polarization of American society, these principles have become virtually obsolete. The sad, inescapable reality is that for far too many Democrats the Constitution is an antiquated relic of the past that has no binding authority on our modern politics. The Supreme Court is seen as merely another policy-making apparatus, subject to the caprice of disgruntled politicians. 

Read a Supreme Court opinion from an Obama or Biden-appointed justice on any major issue - abortion, 2nd Amendment, etc - and you'd be hard-pressed to distinguish it from a CNN op-ed. 

Although woefully incompetent on many issues, the Obama and Biden administrations were particularly adept at finding and appointing activist judges to the courts - a legacy that will live on for years given the lifetime nature of judgeships. 

In a shocking but unsurprising manner, a host of activist judges have already begun to stifle the president's agenda. 

Without any constitutional or lawful basis, these judges have unleashed a series of Temporary restraining orders (TROs) against the lawful executive actions of the President. Let's consider some examples. 

President Trump, in an effort to ensure that federal spending was aligned with the objectives and priorities of his administration, imposed a temporary freeze on federal funds. A federal judge from Rhode Island temporarily blocked the implementation of the executive order, claiming that it was "likely unconstitutional." Note, the judge didn't stop the order because it was unconstitutional, but that it was "likely unconstitutional." 

The same judge, after immense backlash, later clarified that the president, in accordance with the law, had the authority to limit access to some funds.

In a similar case, the Department of Government Efficiency (DOGE), under the authority granted by the president, discovered a web of waste and abuse of taxpayer funds at USAID, an agency under the authority of the executive branch. The President, in response, imposed a temporary freeze to ensure that taxpayer funds were being spent appropriately. An activist judge, in typical fashion, decided to temporarily block the order, citing that there was no sufficient reason for the freeze - without any consideration for whether the president had the authority to impose such a freeze. 

Perhaps the most brazen instance of this overt judicial overreach involved the executive order defunding the chemical castration of children under 19, euphemistically known as "sex change" surgery. The president's cabinet, in compliance with the EO, had taken down a series of web pages that promoted such sex-change content.

In response to this lawful exercise of executive authority, an activist judge from Washington, D.C. ruled in a two-page order that the administration must reupload these webpages, without providing any - not even a semblance of - legal justification whatsoever. Two days later, another judge from Washington State went even further, ruling that the order itself was unconstitutional because it discriminates based on sex. Yes, the judge ruled that the Trump administration's refusal to fund child sex changes - which, it bears noting, is physically impossible since sex is an immutable trait - somehow violates the Constitution. 

These TROs are nothing short of blatant judicial overreach. These are desperate attempts by activist judges to hamstring the president and even worse, impede the will of the American people. 

I should note, importantly, that this criticism is not meant to impugn the authority of the courts. The courts do have legitimate authority in checking executive power, but when judges forsake their duty to interpret the law and instead impose their own policy preferences under the guise of legal decrees, they forfeit that legitimacy. 

So what is the proper response when judges cease to behave like judges and decide to dictate executive affairs?

The only proper response is resistance - not compliance. The Trump administration should, by all means, ignore these judicial fiats! Complying with them only legitimizes the overreach and emboldens these activist judges further.

Ignoring them sends a clear message that the executive will not tolerate the abuse of the courts. Instead, it will maintain its sovereignty and exercise its rightful authority.

Author: Alvin Wright

The views expressed are the author's alone and do not represent the official position of the GWCRs.