The Judicial ‘Resistance’ Is Setting Itself Up for an Epic Smackdown | RealClearPolitics
Of all the forces arrayed against Trump the first time around, it is possible that none was able to gum up the works against the administration quite as much as the judicial “resistance.”
Accordingly, left-wing lower-court judges have, over the past few weeks, already issued many such nationwide injunctions against the new Trump administration’s executive orders. The reemergence of the judicial “resistance” reached a fever pitch this week, when Judge Paul Engelmayer in New York City attempted to stop Musk’s Department of Government Efficiency from accessing Treasury Department payment systems, and Judge John J. McConnell Jr. in Rhode Island threatened Trump administration officials with criminal contempt. Those rulings followed Vice President JD Vance’s post on X last Sunday that “judges aren’t allowed to control the executive’s legitimate power.”
Barr and Vance were both correct to call out judicial overreach against executive authority.
As Supreme Court Justice Clarence Thomas explained in his 2018 concurring opinion in the “travel ban” case of Trump v. Hawaii, American courts’ authority has historically been understood as “fundamentall(y) the power to render judgments in individual cases.” If the current Supreme Court weighs in, Thomas’ position on the role of courts should garner a five-vote majority. That is because it is clear, as law professor Samuel L. Bray argued in a much-cited 2017 law review article, that a federal court’s power to issue injunctions is restricted to a specific defendant’s conduct only with respect to a specific plaintiff. The entire notion of a “nationwide injunction” is therefore oxymoronic.
As a political matter, furthermore, the Trump administration and its allies in Congress are going to prevail in the separation-of-powers battle royale against the obstinate lower courts.
Josh Hammer.