We are approaching a constitutional crisis with a confrontation between a politicized and overreaching judiciary, and a reckless president who is smashing the political norms that have enabled our system to function. The balance of power between the three branches of government is getting shaky.
Currently, the Republicans control both the executive and legislative branches, and have been on a political blitzkrieg to quickly enact their agenda. The Democrats, out of power and in disarray, are thrashing about wildly in an effort to stop them. They will do anything to stop him, including using sympathetic and cooperative judges, and nearly every executive action has met with some sort of legal challenge.
At the moment, we have the Trump administration defying the direct orders of a federal district court judge, who ordered that several planes deporting illegal immigrant alleged gang members from Venezuela, turn around and return to the U.S. The administration has indicated its intention to continue similar deportations despite the court’s injunction prohibiting them.
The Venezuelans are being deported to El Salvador, where Salvadoran President Nayib Bukele, a hero in his country for taking draconian steps to reduce gang crime, has agreed to hold them. Trump has cited the Alien Enemies Act of 1798 as authority, which authorizes summary deportation if the president declares that the U.S. is at war. The deportations have been challenged by the ACLU and by Democracy Forward, another leftist group.
The immediate question is how the judge will try to enforce his order against a president who has indicated every intention to continue to disregard his orders and how he will attempt to punish disobedience.
Backing every court order is the potential use of force to enforce it. But law enforcement and the military are under the command of the executive branch. Further, the oath sworn by law enforcement and military personnel is to support the Constitution, not to support the judiciary or the executive. The Constitution does not give any branch the exclusive power to interpret and apply its terms.
Whose orders will they obey? Do we really want to force soldiers and cops to make their own interpretations of the constitutionality of disputed directives?
Historically, judges tended to defer to the political process and were reluctant to inject themselves into the executive’s authority over military matters and foreign affairs. They “stayed in their lane.” The acts of the other branches were afforded a presumption of validity, and courts were hesitant to interfere. But, in recent decades, the courts have occasionally been politicized and used to challenge the other branches to obtain political objectives. Two examples were the efforts to disqualify Trump, and enacting public policy that the legislative branch won’t accept, such as Roe v. Wade. The judicial process, through injunctions and stays, can be used to defeat, long delay, or frustrate the implementation of normal political policy. With our increasingly complex body of laws and regulations, love of deliberate, expensive, and slow-moving “process,” and the fertile and inventive minds of lawyers, it is not hard to concoct a superficially plausible legal challenge that can take years to disprove. Long delay is, in effect, a win.
Our system of three co-equal branches of government ruled by a Constitution is a structurally fragile arrangement in a world filled with the power-seeking. The Constitution is nearly 240 years old, and with the “living Constitution” approach, can be interpreted to mean pretty much anything. In the famous Marbury v. Madison decision, the Supreme Court gave themselves the power to determine just what the Constitution provides, effectively giving them the ultimate control over all branches of government. This was accepted because, practically speaking, someone had to have the final word.
But for this arrangement to actually work, it would require a lot of restraint and self-control by judges, and the willingness to resist the urge to take control and implement their own policy preferences. When courts become political entities and participate in actively making or implementing political policy, it is inevitable that their orders will be actively disputed, and this sort of standoff arises. Judges should act, well, “judiciously.”
My suggestions? First, return to the Senate procedural requirement to effectively require a supermajority to confirm judicial appointments, as existed before Democrat Harry Reid’s “nuclear option.” Requiring at least a few votes from the minority party would help avoid the partisan extremists. Second, any order blocking or mandating actions by the executive should be first approved by the District Court of Appeals en banc and require a finding that the specific government action is likely to be successfully challenged under existing law and legal interpretations. Third, the executive should be required to obey court orders. Fourth, the minority party should respect the right of the executive to enact their agenda. Elections have consequences.
We should be ruled by neither a single district court judge, nor by a lawless executive. Let’s back away from the precipice. Δ
John Donegan is a retired attorney in Pismo Beach who is just the piano player in this mess. Send a response for publication to letters@newtimesslo.com.
This article appears in Apr 10-20, 2025.