President Donald Trump and the courts are in a turf war over the reach of executive and judicial powers. The conflict results from a barrage of nationwide injunctions issued against the Trump administration by left-leaning judges on matters that Trump claims fall within the purview of the executive branch.
In a recent opinion piece in The New York Times, retired federal judge J. Michael Luttig claims that the courts will win this struggle. The opposite is true. The judicial branch will destroy itself — just like the Democratic Party did — if it stubbornly continues to fight Trump on the very issues that put him back into the White House.
The Judiciary Has Few Weapons in a Turf War With the Executive
Struggles between the executive and judicial branches date back almost to the founding of our country — to the 1803 Supreme Court decision in Marbury v. Madison. The Supreme Court ruled then that federal courts have a power of “judicial review” over the acts of the legislative and executive branches. The ruling rested largely on the proposition that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That is, courts have the power to state what the law “is,” which is merely to say, the power to issue judgments and orders reflecting what the written words of the laws mean.
But that is as far as the judicial power extends in our constitutional system. The judicial department has no constitutional power to actually control the president’s management and execution of the laws.
Co-Equal Means Co-Equal, Not Subordinate
The Constitution establishes a well-defined structure of federal government. Legislative power is vested in Congress. Executive power is vested in the president. Judicial power is vested in the courts. This means that Congress gets to write what the laws say. The courts get to say what the laws mean. And the president — and only the president — gets to execute the laws, whatever those laws say, and whatever those laws mean.
These principles are self-evident. For, if the judiciary had the power to control the president’s execution of the laws through orders or injunctions, then executive power would reside in the courts. Neither Congress nor the courts have any constitutional authority over the president’s execution of the laws. That’s exactly what makes all of the branches co-equal and not subordinate to either of the others.
In fact, the judicial branch has limited weapons in a turf war with the executive. For years, members of academia, the media, and (of course) the judiciary itself have tried to imprint on the American psyche the notion that the courts sit as some form of board of directors over a president (particularly when the president’s name is Trump), entitling them to actual control over the manner in which the president manages and executes the laws. That is incorrect. The judiciary has exactly zero executive power.
Instead, the judicial department has only moral authority, not actual authority, in this area. This is not a novel view of our government. It is a founding principle. As Alexander Hamilton explained in Federalist 78: “It may truly be said [that the judicial department] have neither FORCE nor WILL, but merely judgment, and must ultimately depend on the aid of the executive arm for the efficacy of its judgments.”
The following hypothetical illustrates Hamilton’s point. Assume that, in October 1941, Congress passed legislation providing $1 billion in foreign aid to Japan. After the Pearl Harbor attack, the president decides to redirect those funds to the construction of U.S. warships. A federal judge issues an order rejecting the president’s attempt to repurpose the funds and directs that they be paid to Japan. The president ignores the court’s order and builds the warships.
Each branch would have fulfilled its constitutional function. Congress passed an appropriations law. The judiciary issued a judgment reflecting its interpretation of what that law means. And the president executed the law as commander-in-chief in the manner that the president saw fit.
In this scenario, the judiciary’s moral authority to influence the president will have failed for obvious reasons. And one might object to the hypothetical, itself, on the grounds that it involves an obvious intrusion of the judiciary into the realm of the executive. But the obviousness of the intrusion is not the test. The relevant question is whether there is an intrusion.
In our constitutional system, the executive is as much a check on the judiciary as the judiciary is a check on the executive. If the judiciary perceives that the president has exceeded his constitutional authority, it may issue its judgments and orders to that effect. But equally so, when the executive concludes that the courts have exceeded their constitutional authority, it may side-step the orders entirely.
The People Decide Conflicts Between the Branches
Stand-offs between the judicial and executive departments do not paralyze our constitutional system nor do they create “constitutional crises.” That’s because the system accounts for this eventuality. Congress can place its thumb on the scales in such disputes by, for example, withholding appropriations from either the judiciary or the executive, by narrowing judicial jurisdiction, or, in extreme cases, by impeaching recalcitrant executive or judicial officials.
Thus, it is not clear, as Chief Justice John Roberts recently claimed, that there is no conceivable intrusion into the executive authority by a judge that would make impeachment appropriate. Have we reached that point yet? Who knows. But at least one anti-Trump judge has attempted to dispense with executive branch administrative control over the military and handed that control to herself. The same judge also suggested her willingness to reject civilian control over military administration in favor of control by the general staff.
Turf wars between the judiciary and executive are not unheard of. President Joe Biden defied judicial judgments (such as with student loan handouts) and he did so for the nefarious purposes — to purchase classes of votes in a subsequent election using taxpayer money.
Typically, however, the president backs down, accepts the judiciary’s rulings, and seeks to influence developments through revised legislation, future judicial appointments, or other, more-controversial means (e.g. threatening judicial term limits or court-packing). In other words, the moral authority of judicial judgments almost always prevails.
That is as a good thing, not because the judiciary was meant to be the most powerful branch of government, but rather, for the opposite reason: because the judicial department is generally considered the “weakest” and “least dangerous” branch. Americans understand that the judiciary is the branch most desperately in need of deference and are therefore willing to give it. It’s why presidents carefully weigh — and almost always fear — the political costs associated with defying court orders.
Ultimately, our constitutional system empowers the people to arbitrate conflicts between the branches, whether directly through subsequent presidential elections or indirectly through their other duly-elected representatives in Congress. In the terms of Marbury v. Madison, in a dispute between branches, it is emphatically the province and duty of the people to say what the law is.
Trump Derangement Syndrome Will Destroy the Judiciary
The people’s deference to the judiciary is not unlimited. The courts can weaken their moral authority quickly with over-reaching rulings, particularly when those rulings reek of personal animus toward one man — i.e., “Trump Derangement Syndrome” — rather than rational decision-making. The so-called “resistance” will play well to the “elites” but not to the people who put the president into office to do the very things that are being resisted.
Americans intuitively understand that the judiciary’s primary role is to protect the rights of American citizens, not the “rights” of federal bureaucracies and foreign interests. They also understand that the president’s core functions include managing the executive branch and protecting Americans from foreign threats. They do not need to reread the Constitution with every dispute to remain convinced of these things.
Americans will tolerate some level of Ivy-League-trained manipulation at the margins of constitutional interpretation. However, they are not likely to support judicial micromanagement of personnel- and budget-cutting decisions for an organization that is $36 trillion in debt. They will not support judicial meddling in the military, foreign aid, or other foreign affairs. And they certainly will not support a federal judiciary hell-bent on favoring the interests of foreign threats — such as illegal alien law-breakers and Tren de Aragua gang members — at the expense of Americans.
With all due respect, Judge Luttig is wrong. The courts will destroy themselves in a war against Trump on these issues. That is why the Supreme Court is unlikely to let them fight these battles for very long.
Joseph LoBue is a retired Naval officer and attorney.
Jesus Christ is King
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