How Congress Can Rein In Rogue Federal Judges
It is time for Congress to rethink its federal statutes that govern the discipline of judges.It is time for Congress to rethink its federal statutes that govern the discipline of judges.Judges now veto Trump prosecutors after the Senate stalls confirmations
One of the core executive powers is the authority to prosecute criminals. Article II of the Constitution assigns “the executive power” — all of it — to the president of the United States. In practice, the power to execute the laws against those who have violated them is delegated by the president to the attorney general, the Department of Justice she heads, and the 93 U.S. attorneys spread across the country.
Yet since he took office for the second time last January, President Trump and his attorney general, Pam Bondi, have had a heck of a time getting their people in place.
The criminal prosecution work of the US attorneys’ offices does not abate while Washington plays out its slow-walking games.
Of the roughly 50 U.S. attorney nominations the president has sent to the Senate, fewer than half — just 19 — had been confirmed by December 15, and all of those but three were confirmed en masse in October, some 10 months after Trump took office. Although another 13 were confirmed en masse on December 18, 14 are still awaiting confirmation as we approach the one-year mark of Trump’s second term.
A good bit of the holdup is caused by the Senate’s “blue-slip” process, whereby nominations will not be considered unless both senators from the nominee’s home state return a blue slip allowing the nominee to be considered.
Originally designed to allow input from the elected senators who presumably are most familiar with the nominee’s qualifications and temperament — the “advice” part of the “advice and consent” process mentioned in the Constitution — the refusal to return a blue slip has become an obstructionist tactic deployed by Democratic senators bent on blocking as much of Trump’s agenda as they can.
But the criminal prosecution work of the U.S. attorneys’ offices does not abate while Washington plays out its slow-walking games, and the president of the United States — the nation’s top executive and chief law enforcement officer, who has the constitutional duty to “take care that the laws be faithfully executed” — needs to have people in charge of those offices.
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Democratic obstruction
The Constitution’s default rule for the appointment of U.S. attorneys is presidential nomination followed by Senate confirmation. But because U.S. attorneys are “inferior officers” in the Constitution’s language, Congress can allow for appointments by the president alone, by the heads of the executive departments, or by the courts of law. It has done so by allowing the attorney general to appoint “interim” U.S. attorneys for up to 120 days to fill vacancies.
But after the 120-day period expires, the interim can remain in charge of the office only if the district court in that jurisdiction approves. Six of the U.S. attorneys appointed to interim positions have been rejected by their respective district courts: Bill Essayli in the Central District of California, Julianne Murray in the District of Delaware, Sigal Chattah in the District of Nevada, Alina Habba in the District of New Jersey, Ryan Ellison in the District of New Mexico, and John Sarcone in the Northern District of New York. Not surprisingly, five of these district courts are overwhelmingly stacked with Democrat-appointed judges, another outgrowth of the more aggressive “blue-slip” policy that has been deployed by Democratic senators in the last decade.
The Nevada District Court has seven judges, for example, and all seven were appointed by either President Obama or President Biden. It’s the same situation with the Northern District of New York, where all five judges on that court were appointed by Obama or Biden. The New Jersey District Court has 17 judges, and all but two (both George W. Bush appointees, not Trump appointees) were appointed by either Obama or Biden. The Central District of California has 28 judges, and fewer than one-third were appointed by Republicans. And five of the seven federal judges in New Mexico were appointed by Obama or Biden.
Alina Habba, who brought the indictment against Rep. LaMonica McIver (D-N.J.) for interfering with Immigration and Customs Enforcement enforcement operations, was famously disqualified by the District Court in New Jersey after the cumulative 120-day period expired. And Lindsey Halligan — the interim U.S. attorney in the Eastern District of Virginia who obtained the high-profile indictments of former FBI Director James Comey for allegedly lying to Congress and of New York Attorney General Letitia James for allegedly falsely claiming a home in Virginia as her personal residence in order to obtain a more favorable mortgage interest rate — was disqualified by her local district court after the 120-day interim period in that office expired.
The bigger obstacle
The Department of Justice has said it will challenge these disqualifications on appeal. One issue will be whether the 120-day limit on the interim appointment authority is cumulative or successive. That is, if someone is appointed as interim U.S. attorney and then resigns before the expiration of the 120 days, does the attorney general get to appoint a new, different interim to fill the new vacancy for another 120 days, or does the new interim appointee only get to serve until the original 120-day clock expires?
The practice has been the latter, but that leaves the president without someone to exercise his executive authority in charge of the office, as long as the obstruction tactics in the Senate hold. That seems to be a big threat to the president’s ability to take care that the laws be faithfully executed and therefore a big Article II executive authority problem.
An even bigger obstacle for Trump, though one that has not received much attention, is the separation-of-powers problem lurking in this statutory scheme, which requires approval by the district court at the conclusion of the 120-day period.
Yes, the Constitution’s text allows for the appointment of inferior officers by the courts of law, which would technically allow Congress to create a scheme whereby the courts appoint the prosecutors who prosecute cases before them.
There is nothing in the records of sparse debate during the 1787 federal convention to suggest the drafters had such an interbranch appointment authority in mind however. Rather it would seem more likely that they intended inferior executive officers to be appointed by the president alone, or the heads of the executive departments, and inferior judicial officers to be appointed by the courts of law.
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When it upheld the independent prosecutor law in the 1988 case of Morrison v. Olson, which had provided for the appointment by a “Special Division” of the U.S. Court of Appeals for the D.C. Circuit, the Supreme Court rejected that interbranch argument, but it also pointed out that the independent prosecutor statute was designed to allow for investigation and prosecution of high-ranking officials in the executive branch, and the interbranch appointment process therefore avoided the obvious conflicts of interest.
No such conflict exists in the run-of-the-mill appointment (or rejection) by district courts of interim U.S. attorneys at the expiration of the 120-day interim period. The interbranch appointment authority raises serious separation-of-powers concerns, and the Supreme Court has been particularly solicitous of them in recent years. It also raises serious concerns about the president's ability to take care that the laws be faithfully executed when the people executing them are not the ones he has chosen.
A century ago, in the case of Humphrey’s Executor v. the United States, the Supreme Court upheld congressional restrictions on the ability of the president to remove executive branch officials. But already on the Supreme Court’s docket this term is a case, Trump v. Slaughter, in which most observers rightly predict that it will overrule that old, New Deal-era case and restore a large measure of control of the executive branch to the head of that branch, the president — the only member of the entire executive branch that we the people actually elect.
If the Slaughter case ends up slaughtering the bad constitutional law from Humphrey’s Executor, it does not take much imagination to conclude that the question of judges appointing prosecutors who appear before them — that is, those officials who exercise the core executive function of prosecuting crimes — should also be in for a very serious reconsideration.
Editor’s note: A version of this article appeared originally at the American Mind.
Who checks the judges? No one — and that’s the problem.
One would think a federal judge trying to block the president from deploying the National Guard to protect federal agents would mark the breaking point for judicial supremacism. Yet the Trump administration still behaves as if the Supreme Court can rescue it from judicial overreach. It cannot. You can’t comply your way out of judicial tyranny, appoint your way past it, or count on the high court to stop it. The judiciary must be delegitimized completely.
Congress passed by overwhelming margins a law banning Chinese-owned TikTok in the United States. President Trump ignored it. He ordered Attorney General Pam Bondi to keep the app online, and no one in Washington blinked. The president defied a duly enacted law, extended TikTok’s life beyond the 90-day limit, and still allows just under 20% Chinese ownership. Yet the same Washington class insists that any judge can command the president on immigration, national security, or even his use of the National Guard — and that such rulings are the word of God.
The proper response is not to plead for Supreme Court review — it’s to ignore such rulings outright.
Late Saturday night, U.S. District Judge Karin Immergut, a Trump appointee, ruled that the president lacked authority to deploy the Oregon National Guard to Portland to protect ICE facilities. The same judiciary that called a few hours of chaos on Jan. 6, 2021, an “insurrection” now dismisses eight months of rioting, doxxing, and targeted attacks on ICE agents as “lawful protest.”
On Sunday, Immergut extended her injunction to every state’s National Guard units, even those like Texas, whose governors had granted Trump permission to federalize.
The merits of her decision aren’t the core issue. The problem is structural: Federal courts claim abstract standing to decide national-security questions that belong to elected branches. Judicial power was never meant to work this way.
If a citizen suffers injury, he can seek damages in court. But no judge has constitutional authority to referee political disputes as if she were deciding some sort of civil case between Microsoft and Amazon. The proper response is not to plead for Supreme Court review — it’s to ignore such rulings outright.
If the judiciary holds the final say in every political or constitutional conflict, checks and balances collapse. When judges alone define their own powers and the limits of the other branches, we cease to be a republic and become an unelected oligarchy. Abraham Lincoln, citing Thomas Jefferson, warned that once a free people submits absolutely to any department of government, liberty is lost.
When one branch violates the Constitution, the others — and the people — must push back. The founders never vested final authority in any single branch, least of all the one insulated from elections. Presidents come and go; judges remain for decades, accountable to no voter.
I don’t like that Trump sets tariff rates and hands out exemptions by executive order. He even granted Qatar de facto NATO protection without Senate approval. Those moves deserve political resistance — but not judicial vetoes. Questions of national policy belong to voters and legislators, not to courts hunting for imaginary plaintiffs.
Immergut granted standing to Oregon and Portland to challenge Trump’s finding of a “violent domestic insurrection,” claiming there were only four clashes with federal officers in the prior month. Even if that number were correct, no judge has the power to second-guess an executive’s determination of an uprising. Governments cannot sue one another over political facts. We are either a constitutional republic or a dictatorship of robes.
The founders understood this. James Madison originally proposed that the Supreme Court share a “council of revision” with the president to veto legislation. Once the Constitution created an independent executive with its own veto, no serious thinker imagined adding a judicial one. In 1789, Madison made clear that while courts interpret law in specific cases, no branch “draws from the Constitution greater powers than another in marking out the limits of the several departments.”
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When branches clash, each uses its own powers to persuade the public. Madison wrote that differences between the legislative and executive “may be an inconvenience not entirely to be avoided.” That friction, he said, reflects the “concurrent right to expound the Constitution.” In other words, conflict is not a crisis — it’s republican government at work.
Today’s judicial supremacy replaces that rough balance with North Korean-style obedience to unelected authority. What’s next? Will judges write the 2026 federal budget while the president and Senate argue?
Waiting for the Supreme Court to reverse rogue lower-court rulings is a fool’s errand. As Justice Samuel Alito warned in Trump v. CASA, class-action suits and nationwide injunctions make such limits meaningless. Even if the high court eventually reverses Immergut, the administration will have wasted precious time and capital — while worse precedents, like birthright citizenship rulings, remain untouched.
How far must this usurpation go before the executive reasserts its authority? Until the presidency and Congress together reject the judiciary’s false supremacy, the United States will remain trapped in a system unworthy of a free people.
Split the Big Beautiful Bill Act, seal the border … and give Trump a real win
The GOP doesn’t resemble a big tent any more — it looks more like a boundless landfill. No shared vision or coherent guiding principles bind the party’s disparate factions beyond not having a “D” next to their names. That’s why it’s impossible to pass a reasonable budget bill that cuts spending without including massive subsidies for high-tax blue states.
The rift between the Freedom Caucus, the K Street crowd, RINOs, and the Trump White House remains unbridgeable. So what’s the realistic path forward on budget reconciliation?
With real leadership, Trump could sign the most consequential part of his 2024 mandate into law — before the smoke clears in LA.
Focus on the one issue that unites the base: immigration enforcement.
Riots in Los Angeles this week have made the case for an immigration-only reconciliation bill even stronger. The public sees the connection. The urgency is obvious. And President Trump, understandably frustrated by the calendar — it’s June and he hasn’t signed a single major legislative win — wants action now.
But cramming unrelated tax and health care provisions into one big, bloated bill guarantees disaster. Good members will face a bad vote. So why not act decisively?
Split the immigration provisions from the rest. Make them tougher. Pass the bill right away, while the chaos in L.A. is still at the front of everyone’s mind. Save the fiscal brawls for later.
The math of an immigration-focused bill
The current draft of H.R. 1, the One Big Beautiful Bill, includes about $185 billion in new funding for Immigration and Customs Enforcement, Customs and Border Protection, and new and improved border infrastructure. It also tacks on another $150 billion in defense spending — a top White House priority.
Even strong provisions need offsets. But in a party this fractured, cutting spending isn’t just difficult — it’s practically taboo.
Still, by limiting the bill to the Department of Homeland Security and Pentagon spending and scrapping the tax components, Republicans would only need to offset $335 billion over 10 years.
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That’s well within the realm of possibility. They could hit that number using the consensus cuts and immigration reforms already in the bill. No gimmicks. No sleight of hand. Just political will and a sense of timing.
The current bill would generate about $77 billion in new revenue from immigration-related fees and taxes on remittances. It saves hundreds of billions more over the next decade by cutting off illegal aliens from Medicaid, Obamacare, and food stamps.
Republicans should go farther and ban illegal aliens from claiming the child tax credit — a move that could save another $50 billion.
Instead of loading the first reconciliation bill with a jumble of unrelated and divisive provisions, Republicans should focus on consensus items: national security, enforcement of sovereignty, and policies that put Americans first.
If the Republicans were more ambitious, they would use this bill to repeal the Green New Deal. Funding illegal immigration and the Green New Deal were the Biden administration’s two most transformative and unpopular policies. Target both. Pass the bill right away. Deliver a win that matches the mandate voters gave Trump — and give the president a badly needed legislative victory.
Enforcement money isn’t enough
Throwing $180 billion more at enforcement won’t solve the immigration crisis. Spend a trillion on deportations, and it still won’t matter if courts continue to block action.
Even in Trump’s rare Supreme Court wins on immigration, the justices insisted every illegal alien must receive due process — despite deportation being a civil process, not a punishment.
No president can litigate his way out of an invasion. Even with favorable rulings, Trump won’t deport enough illegal immigrants before the next Democrat takes office. That’s the hard truth.
Now is the moment to fix it.
Americans are watching a violent, coordinated invasion unfold in real time. The bill should formally declare an invasion — and include an amendment by Rep. Chip Roy (R-Texas) to strip judicial review from deportation cases involving noncitizens and, ideally, legal permanent residents.
Under that reform, the administration’s removal decisions would stand. No federal judge could second-guess them. No more delays, appeals, or lawfare.
Roy’s amendment would transform the first reconciliation bill into a singular focus on Trump’s most unifying, necessary, and popular campaign promise. It would hand him a quick, clean victory while the nation remains fixated on the border invasion.
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So why not just split the agenda into two bills and get on with it?
Here come the usual GOP excuses. Let’s knock them down one by one.
Excuse 1: “We only get one bite at the apple.”
White House deputy chief of staff Stephen Miller claims Republicans must use reconciliation just once to avoid the Senate filibuster.
But Democrats already broke that precedent in 2021, pushing through two separate reconciliation bills with a green light from the Senate parliamentarian, who noted that reconciliation should be reserved for “extraordinary circumstances.”
But ultimately, this isn’t the parliamentarian’s call. The decision rests with President Trump and Senate Majority Leader John Thune (R-S.D.). If Biden’s team could do it, so can we.
Excuse 2: “Without this bill, Americans face massive tax hikes.”
This line is pure fearmongering. The 2024 election wasn’t about taxes. MAGA never revolved around tax cuts for their own sake — that was the old GOP. Yet somehow, this bill morphed into another tax-centered mess.
The truth? Most tax provisions in the current draft — from an expanded child tax credit and higher standard deduction to new breaks for seniors, overtime, and tips — enjoy broad bipartisan support.
No Democrat wants to get blamed for letting these expire. Even in a lame-duck session, they wouldn’t allow a public tax hike. The only serious dispute involves the top marginal rate. Trump has already signaled he’s open to a modest increase if it means getting the rest of the agenda passed.
And let’s be honest: The current bill isn’t exactly Reaganesque. It’s loaded with progressive goodies, including an obscene expansion of the SALT deduction.
Even the pro-tax-cut Tax Foundation calls the bill’s economic impact weak and overly complicated. This isn’t a bold, pro-growth package — it’s a muddled compromise.
The irony is that ending taxes on tips — perhaps Trump’s most prized tax provision — already passed the Senate 100-0. Why not pass that and similar provisions in the House and place it on Trump’s desk without wasting budget reconciliation?
Excuse 3: “We can’t include policy provisions in a budget bill.”
Critics claim the Byrd Rule blocks the inclusion of policy reforms — like immigration or judicial changes — in a reconciliation bill. That excuse doesn’t hold up.
The original House-passed bill included a provision that barred states from regulating artificial intelligence. That isn’t budget-related. That is pure policy.
By comparison, a provision removing judicial review from deportation cases would directly cut costs by eliminating thousands of court hearings. That’s a legitimate budgetary angle — and far more defensible than regulating AI through backdoor channels.
The Byrd Rule exists, yes. But the party in power determines what gets through. The president and Senate leadership can overrule the parliamentarian. Democrats did it. So can we.
Fast-forward to this week: The streets of Los Angeles are on fire again. And instead of seizing the moment to deliver on the most urgent national priority, Miller is using anti-ICE violence to ram through a bloated mega-bill — all because it includes ICE funding.
But if solving immigration were the real goal, Republicans would just split the bill already. They’d put the judicial reform language in the first package. And they’d pass it immediately.
With real leadership, Trump could sign the most consequential part of his 2024 mandate into law — before the smoke clears in L.A.
Trump Should Force Congress And SCOTUS To Stop Rogue Judges By Ignoring Unconstitutional Injunctions
By continuing to face this crisis with appeals to higher courts, the president is bringing a knife to a gun fight. He should instead bring a howitzer.Today's top stories
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