It’s not enough to suggest that the national court has caused a constitutional crisis at this point. The fusillade of injunctions and transitory blocking orders issued by district court judges in recent months against the Trump administration — on everything from international aid to immigration enforcement to Defense Department recruitment scheme to climate change provides for Citibank — boggles the mind.
In the last month, more nationwide injunctions and restraining orders have been issued against Trump than they have been against the Biden administration in four years. Four different federal judges on Wednesday alone gave Elon Musk the power to reinstate USAID employees ( which he and DOGE have no authority to do ), and also gave President Trump the power to reveal sensitive operational details about alleged terrorists ‘ deportations, ordered the Department of Defense to admit gender dysphoria, and gave the Department of Education the$ 600 million DEI grants to schools.
On one level, what all this amounts to is an attempted takeover of the Executive Branch by the Judicial Branch — a judicial , coup d ‘état. Through pure judicial fiat, these judges are pursing President Trump’s legitimate executive branch powers, a raw retaliation for one branch of the federal government.
The judiciary has made an attempt to stop the duly elected president from regaining control of the Executive Branch from the federal bureaucracy, which has long served as an unelected and unaccountable fourth branch of the government. This unconstitutional fourth branch has always been controlled by Democrats and leftist ideologues who, under the guise of being nonpartisan experts neutrally administering the functions of government, have effectively supplanted the political branches. Unfortunately, the political parties have largely consented to their overthrow.
Trump has a strong mandate from the American electorate and has vowed to wrest control of the government from the deep state. The deep state in turn has been forced to fall back on its last line of defense: the courts.
In other words, what we’re seeing is the return of the political ( in the traditional sense ) to American government. Of course, the political never really disappeared. The idea of a neutral, nonpartisan class of experts and bureaucrats was always a fiction, a thinly-veiled scheme for implementing the Democrats ‘ agenda and neutralizing the effect of elections on actual governance. The bureaucracy’s power would not significantly alter who the voters were, despite the fact that they could choose who. The crisis that is erupting now is directly related to Trump’s efforts to dismantle this scheme, which has historically been the biggest scandal in modern American government.  ,
Why do courts have the capacity to defend the deep state? One reason is simply the unwavering partisan hatred of Trump by particular federal judges, like D.C. Circuit judge James Boasberg, who this week arrogated to himself the authority to command federal law enforcement and military personnel overseas in an unsuccessful attempt to stop the Trump administration’s deportation of hundreds of alleged foreign terrorists.
There is also the encouragement that judges like Boasberg have received not only from the Supreme Court’s refusal to step in and check these abuses of power but also from Chief Justice John Roberts ‘ unprecedented statement this week attacking the president for suggesting that Boasberg should be impeached ( which he should ).
The larger reason for this judicial revolt, however, is structural and historical, dating back more than a century to the development of the theory of the administrative state. In actuality, Franklin Roosevelt’s New Deal established a federal bureaucracy powerful enough to serve as the foundation for modern administrative state. But its intellectual and conceptual roots go back to Woodrow Wilson, an academic and unabashed progressive. Wilson studied what he termed” the science of administration” long before beginning his political career and used the 1880s imperial bureaucracy as a model for how to change American governance.
Wilson’s goal was to end constitutional government’s needless inefficiencies and limitations. The role of government in society, according to Wilson ( and contrary to the Founding Fathers ), should adjust to meet the demands of the moment. Wilson believed that the time was right for a government that wasn’t bound by outdated ideas like the separation of powers or rule of law. He wrote in 1889 that” Government” does today whatever experience or the circumstances permit.
To accomplish this, Wilson ( along with other pioneers in administrative law and politics at the time, like Frank Goodnow ) believed it was necessary to create a realm of neutral administrative authority totally shielded from political influence and the vicissitudes of the ballot box. Wilson essentially wished to separate the business of government from the opinion of the general public. In 1886, he wrote,” Practical reform must be slow and all reform must be full of compromises,” and public opinion is a first principle of government. ” For wherever public opinion exists it must rule”. The key was then to keep politics and governance separate.
Where does public opinion end if politics are removed from governance, though? How do you maintain a democratic form of government in which the people are supposed to have a say in how they’re governed? You don’t, in fact. It would be, and is, impossible. Indeed, the entire point of the administrative state is to render elections largely meaningless. The goal is to remove the authority of the political branches to decide political questions and transfer that authority to so-called experts inside the bureaucracy, whether it is a change in president in the White House or a shift in the congressional majority.
We can see what this kind of rule produces after generations of it: a bloated and unaccountable deep state ruled by partisan ideologues who have a lot of policymaking power and are not accountable to the president nor the Congress. Whatever you call this system of government, it isn’t the republican constitutionalism that our Founders set up, and it isn’t accountable to the American people. Voters can elect a president like Trump, who has publicly vowed to end the deep state, but who is not in charge of it. It is a self-sufficient force that ignores the needs of the populace.
All of this directly relates to the judicial coup now underway. The complete takeover of the administrative state is the cause of the injunctions and restraining orders coming out of the federal courts. In fact, they are one of the deep state’s last lines of defense against the reassertion of actual political power in Trump’s person.
Take for example something like immigration and asylum policy, which is inherently a political question that in a properly functioning republic should be decided by the elected representatives of the people. Instead of enacting strict laws that address the political issue of who is permitted into the country and who isn’t, Congress created a complex immigration bureaucracy that purported to be independent of the issue’s political bent in favor of fake process neutralism.
Although the Executive Branch was the organization’s headquarters, it is now only ceremonially under the president’s control, and only so long as the president does not obstruct the organization. Presidents and members of Congress would inveigh against illegal immigration and promise to secure the border. But all of this was political theater. In reality, the immigration bureaucracy started mass immigration by flooding the nation with millions of “asylum-seekers” who had no legitimate asylum applications and were still able to stay in the country as their cases travelled their way through the system, a process that can take years.
That is to say, a political question was answered with a political decision. The unelected bureaucrats of the deep state, who had their own policy preferences, settled the political issue instead because Congress renounced its decision to resolve it.
The reality of administrative rule was made so clear that anyone could see it until Trump intervened and attempted to reinstate it. Trump wants to change how we run our immigration system, and he has a mandate from the voters to do so. The deep state, which is now relying on the judiciary to uphold its authority over and against the president, immediately challenged him in an attempt to change it.
The good news is that Trump has forced the deep state to rebel and expose its true nature, which isn’t that of neutral experts but of politically and ideologically motivated actors. Trump has also exposed the collusion and corruption of the judiciary in upholding the authority of the deep state. In order to maintain the deep state’s hold on power, racially biased judges ( who are also supposed to be neutral arbitrators of the law ) are now using increasingly outrageous injunctions and restraining orders.
This is a state of affairs that cannot endure. Thus far, Trump has shown remarkable restraint in how he has responded to judicial usurpation of his legitimate executive authority. However, he is running out of ways to show deference to these federal judges, who have only been encouraged by his restraint.
In actuality, this fight with the federal courts is actually a fight against the progressive system of administrative rule, and Trump must win in order for it to succeed. It requires the support of the governed to do so.
