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The Judicial Insurrection Is Worse Than You Think

BY: JOHN DANIEL DAVIDSON for The Federalist 

The point of all the injunctions and restraining orders is to preserve the supreme rule of unelected and unaccountable bureaucrats.

At this point it’s not too much to say that the federal judiciary has plunged us into a constitutional crisis. The fusillade of injunctions and temporary restraining orders issued by district court judges in recent weeks against the Trump administration — on everything from foreign aid to immigration enforcement to Defense Department enlistment policy to climate change grants for Citibank — boggles the mind.

More nationwide injunctions and restraining orders have been issued against Trump in the past month that were issued against the Biden administration in four years. On Wednesday alone, four different federal judges ordered Elon Musk to reinstate USAID workers (something he and DOGE have no authority to do), ordered President Trump to disclose sensitive operational details about the deportation flights of alleged terrorists, ordered the Department of Defense to admit individuals suffering from gender dysphoria to the military, and ordered the Department of Education to issue $600 million in 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. These judges are usurping President Trump’s valid exercise of his Executive Branch powers through sheer judicial fiat — a raw assertion of power by one branch of the federal government against another.

But on another, deeper level, this is an attempt by the judiciary to prevent the duly elected president from reclaiming control of the Executive Branch from the federal bureaucracy — the deep state, which has long functioned 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, to large extent the political branches have acquiesced in the usurpation of their authority.

Trump, with a strong mandate from the American electorate, has resolved 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.

What we’re seeing, in other words, is the return of the political (in the classical sense) to American governance. The political never really went away, of course. 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 voters could elect whomever they liked, but it would not much change what the bureaucracy did. This scheme has been the greatest scandal of modern American government, and the crisis unfolding now is a direct result of Trump’s efforts to dismantle it. 

Why are the courts willing to defend the deep state? One reason is simply the unabashed partisan hatred of Trump by specific federal judges, like U.S. District Judge James Boasberg of the D.C. circuit, who this week arrogated to himself the authority to command federal law enforcement and military personnel overseas in a failed attempt to halt 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 cause of this judicial insurrection, however, is structural and historical, going back more than a century to the emergence of the theory of the administrative state. As a practical matter, the modern administrative state was created by Franklin Roosevelt’s New Deal, which in the 1930s established a federal bureaucracy powerful enough to actually govern. But its intellectual and conceptual roots go back to Woodrow Wilson, an academic and unabashed progressive. Long before Wilson’s political career, he studied what he called “the science of administration” and looked to the imperial bureaucracy of Prussia in the 1880s as a template for how to transform American governance.

Wilson’s goal was to overcome what he saw as the needless inefficiencies and limitations of constitutional government. The role of government in society, according to Wilson (and contrary to the Founding Fathers), should adjust to meet the demands of the moment. At the turn of the 19th century, Wilson believed the moment demanded a government not bound by outdated concepts like rule of law or separation of powers. “Government,” he wrote in 1889, “does now whatever experience permits or the times demand.”

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. 

Above all, Wilson wanted to separate the business of governing from public opinion. “Wherever regard for public opinion is a first principle of government, practical reform must be slow and all reform must be full of compromises,” he wrote in 1886. “For wherever public opinion exists it must rule.” The crucial thing, then, was to separate politics from governance.

But if you take politics out of governance, where does that leave public opinion? 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, actually. It would be, and is, impossible. Indeed, the entire point of the administrative state is to render elections largely meaningless. Whether it’s a change of president in the White House or a shift in the congressional majority, the goal is to strip the authority of the political branches to adjudicate political questions and place that authority in the hands of so-called experts inside the bureaucracy.

After generations of this sort of rule, we can see what it produces: a bloated and unaccountable deep state controlled by partisan ideologues who wield massive policymaking power, answerable to neither 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 twice elect a president like Trump, who openly ran on dismantling the deep state, only to find that the deep state is not controlled by the elected president. It is a power unto itself, indifferent to the wishes of the people.

All of this directly relates to the judicial coup now underway. The injunctions and restraining orders coming out of the federal courts are a result of the complete takeover of the administrative state. Indeed, they are one of the deep state’s last lines of defense against the reassertion of actual political power in the person of Trump.

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 passing clear laws that settle the political question of who is allowed into the country and who isn’t, Congress created an elaborate immigration bureaucracy that purported to transcend the political nature of the question in favor of fake process neutralism.

This immigration bureaucracy was housed in the Executive Branch, but as we can see now it was only ceremonially under the control of the president, and only so long as the president did not interfere with the bureaucracy. Presidents and members of Congress would inveigh against illegal immigration and promise to secure the border. But this was just political theater. In practice, the immigration bureaucracy implemented mass immigration by flooding the country with millions of illegal immigrant “asylum-seekers” who had no valid claims to asylum but were nevertheless allowed to remain in the U.S. as their cases wended their way through the system, a process that takes years.

That is to say, a political question was answered with a political decision. But because Congress abdicated its duty to settle that political question, it was settled instead by the unelected bureaucrats of the deep state, who had their own policy preferences.

It wasn’t until Trump came along and attempted to reassert political governance that the reality of administrative rule became so obvious that anyone could see it. Trump wants to change how we run our immigration system, and he has a mandate from the voters to do so. He tried to change it but was immediately challenged by the deep state, which is now relying on the judiciary to uphold its authority over and against the president.

The good news is that by attacking the deep state, Trump has forced it to fight back 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. Radically partisan judges (who are also supposed to be neutral arbiters of the law) are now resorting to increasingly outlandish injunctions and restraining orders to maintain the deep state’s hold on power.

This state of affairs cannot continue. Thus far, Trump has shown remarkable restraint in how he has responded to judicial usurpation of his legitimate executive authority. But he’s running out of ways to show deference to these federal judges, who have only been emboldened by his restraint.

The plain reality is that this fight with the federal courts is really a fight against the entire progressive scheme of administrative rule, and it’s one that Trump has to win if we ever want to restore the role of politics — that is, of public opinion and the consent of the governed — to its rightful place in America.

The first and last paragraphs are the condensed version of the entire article and right on target!