Runaway judges, rogue rulings — and JD Vance is having none of it



Wall Street Journal columnist Kimberley Strassel recently launched an unexpectedly harsh attack on Vice President JD Vance in her piece, “Vance Courts Trouble for Trump.” Strassel took issue with Vance’s criticism of the Supreme Court — specifically Chief Justice John Roberts — for refusing to rein in lower courts that continue to block the president’s immigration enforcement efforts. Vance had condemned what he called the “profoundly wrong sentiment” that the judiciary exists to “check the excesses of the executive.” Strassel responded by warning Vance to stop bad-mouthing “Trump’s greatest legacy and biggest asset — the Supreme Court.”

But why should Trump muzzle his vice president? Why should he sit quietly while the very judges he fought tooth and nail to confirm — despite often violent opposition from the Democrats — now obstruct his efforts to secure the border and deport criminal aliens?

Yes, the Wall Street Journal prefers to cast itself as a centrist paper taking aim at both sides. But that posture doesn’t match the moment we’re in.

If Vance’s criticisms count as “political malpractice,” then so did the actions of several American presidents. Thomas Jefferson, for instance, pushed through the Judiciary Acts of 1801 and 1802, which cut the number of Supreme Court justices and stripped them of their circuit-riding duties. Jefferson acted to dismantle the Federalist “Midnight Appointments” rushed through by outgoing President John Adams.

In Marbury v. Madison (1803), the Supreme Court claimed the power of judicial review — something not granted by Article III of the Constitution, by the way. Even then, Chief Justice John Marshall, a staunch Federalist, stopped short of challenging Jefferson directly. He didn’t try to compel the president to seat William Marbury, the would-be justice of the peace Adams had appointed in his final hours. Marshall asserted the court’s authority but avoided provoking a constitutional crisis.

Today’s activist judges show no such restraint. Unlike Marshall, they challenge the executive branch at every turn — and always in one direction. Vance’s criticism doesn’t reflect political malpractice. It’s an overdue reality check.

We’re now dealing with a runaway judiciary. Democrat-appointed federal district judges continue to block lawful presidential functions for openly partisan reasons. It’s unclear what authority these judges claim when they prohibit Trump from deporting even violent criminal aliens — many of whom Democrats welcomed in to inflate future voter rolls.

Vance’s expectation — that the Supreme Court, especially the justices Trump fought to confirm, would step in to curb the excesses of lower courts — makes perfect sense. Contrary to Strassel’s framing, Vance isn’t succumbing to some reckless “temptation” by criticizing Chief Justice John Roberts and his Republican colleagues. He’s stating the obvious: The court’s failure to rein in rogue judges undermines the president’s constitutional authority.

Strassel’s shrug-it-off mentality — “win some, lose some” — won’t cut it here. This fight matters. Trump cannot afford to lose.

Consider the hypocrisy. Presidents Clinton and Obama removed removed multitudes of illegal aliens when doing so served their political interests. Back then, Democrats still courted blue-collar workers and didn’t want unskilled illegal labor undercutting their base. They didn’t insist on due process or invite obstruction from the courts. They acted decisively.

RELATED: Trump must defy rogue judges or risk a failed presidency

Photo by Win McNamee/Getty Images

Now, Strassel insists that Trump must accept lengthy hearings before removing even the most dangerous illegal aliens. That’s a formula for paralysis, not justice. Meanwhile, Democrat judges didn’t blink when the Biden administration opened the floodgates and allowed 10 to 20 million illegals to pour into the country. Trump has every right to expect that the Supreme Court — not least the justices he carried over the finish line — would finally restore order and let him carry out the mission he was elected to complete.

And enough with the double standard. The populist right gets lectured about decorum while the left ignores every rule with impunity. Democrats tried to pack the courts with ideologues, launched smear campaigns against nominees, and encouraged mobs to hound justices who ruled against them. Their media allies cheered them on and still call for removing conservative justices like Clarence Thomas any time the court hands down an opinion they dislike.

This isn’t a fair fight. The right is battling from behind, and Strassel’s call for restraint sounds almost unserious in this context. Yes, the Wall Street Journal prefers to cast itself as a centrist paper taking aim at both sides. But that posture doesn’t match the moment we’re in. Vance’s criticism didn’t go too far — it didn’t go far enough. His comments were mild, measured, and overdue. And if they rattled Strassel’s sensibilities, that says more about her perspective than his.

Trump’s trade tactics echo founding-era common sense



Prominent voices on the left and within movement conservatism have argued that President Trump’s approach to foreign trade is strange, unorthodox, and even un-American. This is not surprising. After all, doctrinaire commitment to free trade — and doctrinaire distaste for protecting American industry — has been the dominant view among elites of both major political parties for at least a generation.

Against this backdrop, it is no wonder that Trump’s actions on trade appear as a wholly irrational disruption of a system that, according to our political elites, does not need to be discarded.

Hamilton would find it perfectly sensible of Trump to hold that other nations should give America something of value in exchange for access to our vast market.

This view of the matter, however, is based on an incomplete understanding of the American political tradition. Trump’s approach to trade policy has deep roots in American history, as we can see if we cast our gaze further back than we are accustomed to doing. It does not go too far to say that America’s founders would find Trump’s approach to international commerce perfectly intelligible and respectable.

The most obvious way to link President Trump to the founders is to invoke the justly celebrated name of Alexander Hamilton. The “Report on Manufactures,” Hamilton’s most famous state paper during his tenure as George Washington’s treasury secretary, laid out policy objectives that are essentially the same as those being defended by Trump and the members of his Cabinet who are responsible for trade policy.

It was necessary, Hamilton contended, to exert the government’s authority to promote American manufacturing to counteract the “artificial policy” of other nations that sought to exclude or disadvantage American goods. The ultimate aim of such a policy, he explained, was not the “vain project of selling everything and buying nothing” — it was instead to secure America’s vital national interests.

Hamilton argued that national “independence and security” are the “great objects” of all governments, thus requiring each country to “possess within itself all the essentials of national supply,” especially “the means of subsistence, habitation, clothing, and defense.” Having such goods available within one’s own country, he continued, “is necessary to the perfection of the body politic, to the safety as well as the welfare of the society.”

No strange departure

It is hard to see much daylight between Hamiltonian trade principles and President Trump’s desire to have the products necessary to American security and prosperity built in the United States.

The nationalist character of Hamilton’s thinking about trade policy, moreover, did not emerge after the founding as some strange departure from its essential principles. Rather, such nationalism was evident earlier, especially in the prominent part Hamilton played in the debates over the ratification of the Constitution.

Writing in "The Federalist Papers," Hamilton observed that one of the great advantages of a union of states under one government was the power it would confer on the nation to “oblige foreign countries to bid against each other for the privileges of our markets.” Elsewhere in “The Federalist Papers,” Hamilton suggested that the restrictive trade policies nations sometimes pursue are not properly viewed as “injuries” but simply as “justifiable acts of independent sovereignties consulting a distinct interest.”

Hamilton, then, would find it perfectly sensible of President Trump to hold that other nations should be willing to give America something of value in exchange for access to our vast market. His arguments similarly anticipated Trump’s frequent remarks that while other nations will inevitably act in their own interest, they likewise must understand that we intend to act in our own interest as well.

The preceding argument is enough to show that Trump’s thinking about trade policy has venerable roots in the American political tradition. After all, who is more American than Alexander Hamilton?

We can go further, however. Trump’s approach broadly represents not just the Hamiltonian strain of American economic nationalism but the common sense of the founding-era generation itself. Indeed (and as I have observed elsewhere at greater length) the authority to regulate trade with foreign nations was included in the Constitution precisely for the purposes for which the Trump administration is now wielding it.

Regulating commerce was uncontroversial

In his massive and highly regarded "Commentaries on the Constitution of the United States,” Joseph Story — John Marshall’s great colleague on the early Supreme Court — observed that the power to regulate foreign commerce was so obviously necessary in a complete and effective government that it was hardly even a matter of controversy at the Constitutional Convention.

Commerce, Story suggested, is important to “the prosperity of nations.” Nevertheless, the prosperity of American commerce had been thwarted by the restrictive policies of other nations during the time America was governed by the Articles of Confederation, which conferred on the government no authority to regulate America’s foreign trade.

On Story’s telling, before the Constitution was adopted, American commerce “was regulated by foreign nations with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination.” Under the Constitution, however, the government of the United States has the power to control access to the entire American market and hence has the ability to retaliate against the excessively self-regarding trade policies of other nations.

The Trump administration is simply using this constitutional power in an attempt to secure an arrangement that is more mutually beneficial for the United States and our trading partners.

Just as the founders anticipated

Story’s understanding of these matters was by no means idiosyncratic or partisan. On the contrary, essentially the same views were expressed by James Madison, the “father of the Constitution.”

Writing to James Monroe in 1785, Madison expressed his personal wish that “no regulations of trade, that is to say, no restrictions or imposts whatever, were necessary.” “A perfect freedom” of trade, he continued, “is the system which would be my choice.” Nevertheless, he immediately added, for such a system to be “attainable, all other nations must concur in it.” And if any other nation imposed restrictions on American trade, Madison continued, it would be appropriate for America to “retort the distinction” — in other words, to impose retaliatory restrictions of its own. Indeed, Madison held that to question the propriety of such economic retaliation would be “an affront to every citizen who loves his country.”

Similarly, in the preface to his notes on the Constitutional Convention, Madison observed that the lack of a commerce power under the Articles of Confederation had “produced in foreign nations ... a monopolizing policy injurious to the trade of the U.S.” and further suggested that the appropriate response would be a “countervailing policy on the part of the U. States.” Such a policy became possible because the new Constitution included a power to regulate trade with foreign nations — the power the Trump administration is wielding to secure more advantageous trade relations for America, just as the founders anticipated.

None of this is to say that the founders would have approved of the specific steps the Trump administration has taken in the last several weeks. No one can pretend to know how they would apply their principles to the changed circumstances of the present. Nor is it to say that the founders would approve the extent to which the Congress has delegated its foreign commerce power to the president. It is to say, however, that Trump’s aims, and the kind of tools he is using to achieve them, would be unobjectionable to those who founded our nation and established our form of government.

Editor’s note: A version of this article appeared originally at the American Mind.

Trump must defy rogue judges or risk a failed presidency



If a federal judge told President Trump to deliver a specifically curated speech and then pull down his pants on live television, should he comply? If he refused, would that trigger a “constitutional crisis”? If you pay attention to the left, the answer might very well be “yes”!

The only “constitutional crisis” we face is the erroneous idea that the judiciary is atop the food chain rather than on equal footing with the other two branches of government. If Trump hopes to succeed this time around, he had better remind the judiciary of its impotence to enforce unconstitutional edicts.

Granting courts ultimate veto power over public policy creates a judicial supremacy the Founders never intended.

Federal judges have repeatedly attempted to restrict Trump’s presidential authority with overreaching demands. They have ordered the administration to fund private foreign aid organizations, reinstate specific personnel, and publish designated information on government websites. In one case, a judge even directed the secretary of defense to retract a statement on the Pentagon’s policy regarding transgender troops. And over the weekend, U.S. District Judge James Boasberg attempted to block the deportation of violent gang members under the Alien Enemies Act.

What’s next? Will they order Trump to stop threatening Hamas or remove the bust of Andrew Jackson from the Oval Office?

Judges have forgotten who they are: unelected shields against government overreach, not legislative swords that can impose policies. Perhaps Trump needs to examine that bust of “Old Hickory” Andrew Jackson in the Oval Office and recall his (likely apocryphal) response to Chief Justice John Marshall’s ruling in Worcester v. Georgia: “John Marshall has made his decision; now let him enforce it!”

What judges are not

Imagine if the president imposed the same restrictions on the judiciary that federal judges are placing on Trump. What if he dictated how judges managed their websites, controlled which clerks they could hire, or ordered them to rule a certain way? The overreach would be obvious.

Unlike judges, Congress has the authority to regulate every aspect of judicial proceedings, hiring, budget, and conduct. Judges, however, cannot impose similar policies on the other branches — a fact that frustrates judicial supremacists. This limitation exists for a reason: Federal judges are unelected. If they were meant to wield supreme — or even equal — power over public policy, they would be subject to re-election, as many state judges are.

If judicial power has clear limits, then what is its actual role, distinct from the executive and legislative branches?

In a letter to William Torrance dated June 11, 1815, Thomas Jefferson explained who decides constitutional questions.

Certainly there is not a word in the Constitution which has given [judges] that power [authority to decide on the constitutionality of a law] more than to the executive or legislative branches. Questions of property, of character, and of crime being ascribed to the judges, through a definite course of legal proceeding, laws involving such questions belong of course to them; and as they decide on them ultimately and without appeal, they of course decide, for themselves, the constitutional validity of the law.

Bankruptcy cases and criminal charges illustrate the proper scope of judicial authority. Judges can uphold or overturn criminal convictions and resolve disputes over property or bankruptcy. However, when conflicts arise over laws or the Constitution involving the other branches, the judiciary was never meant to have the final say.

Granting courts ultimate veto power over public policy creates a judicial supremacy the Founders never intended. Each branch has a duty to interpret and apply the law within its own constitutional authority. Jefferson reiterated this principle in the same letter.

On laws again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves also, whether, under the constitution, they are valid or not. So also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, and equally without appeal or control from its coordinate branches. And, in general, that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coordinate authorities.

Treating the courts as the final authority on public policy grants them more power than even James Madison’s rejected Council of Revision proposal at the Constitutional Convention. Under Madison’s “Virginia Plan,” Congress would have been a dominant, unicameral body with the ability to veto state laws. To keep it in check, he suggested that the president and Supreme Court jointly review laws before enactment, giving the judiciary a role in the legislative veto. Even in that system, however, the judiciary would not have acted alone — it would have shared power with an elected executive.

The system the Framers ultimately adopted works differently. Two legislative chambers check each other, and the president holds veto power. Are we now supposed to believe that the Supreme Court — or even a single district judge — has more authority than the elected House, Senate, president, and state governments combined? Should an unelected judge wield a stronger veto than the one the Framers deliberately withheld from an entire elected Congress?

No such judicial veto exists.

Resolving disputes among branches

What happens when branches of government disagree and exercise their powers in conflicting ways? Is that a constitutional crisis? Jefferson, again, provides wisdom here.

It may be said that contradictory decisions may arise in such case, and produce inconvenience. This is possible, and is a necessary failing in all human proceedings. Yet the prudence of the public functionaries, and authority of public opinion will generally produce accommodation.

Ultimately, the public will decide who is right. Our system isn’t perfect, but it is far better than allowing unelected judges to impose on the people what hundreds of elected legislators could not.

A Supreme History

UCLA law professor Stuart Banner’s new book is simply the finest and most valuable book ever written about the U.S. Supreme Court, a work of such erudite breadth and interpretive sophistication that in a world governed by merit it would be a slam-dunk winner of an upcoming Pulitzer Prize. Yet in today’s deeply degraded media landscape, only one major publication—the Wall Street Journal—has seen fit to give it the review attention it so richly deserves.

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