President Donald Trump on Thursday signed an executive order aimed at abolishing the Department of Education and returning most of its resources to the state level, delivering on one of his biggest campaign promises. While the order is a step in the right direction, Trump alone can’t dismantle the department. Jimmy Carter first created the agency, and later, Congress cemented it into law, meaning only Congress can dismantle it. The president can’t just wave a magic wand and make it disappear.
Democrats would have you believe that Trump’s executive order is a constitutional crisis — that education is, and always was intended to be, under the jurisdiction of the federal government. This simply is not the case.
Today, the Department of Education operates beyond its charter, and activist judges make law from the bench.
According to the Department of Education Organization Act, the federal government never intended to usurp state and local governments' authority over education:
It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve the control of such governments and institutions over their own educational programs and policies.
The ED has metastasized into the opposite of its original intention. Instead of protecting local control, the agency has become a federal behemoth dictating curriculum, policy, and administration at every level — a total inversion of its founding purpose.
Moreover, the founding document states that “the establishment of the Department of Education shall not increase the authority of the federal government over education.”
That didn’t age well, did it? Today, the federal government wields tremendous authority over what schools teach, how they operate, and who gets funding. It’s a bureaucratic monstrosity that Congress never intended to exist in its current form.
This pattern of government action straying away from its original intention is nothing new. In recent memory, the authors of the Patriot Act have bemoaned how the government currently uses the Act to broaden federal authority beyond its indented scope. However, one lesson from history always holds true: Once you give the government an inch, it takes a mile — every single time. America’s founders knew this, and that’s why they designed a system of checks and balances.
The left’s backlash against Trump’s actions on the Department of Education highlights a broader issue: government institutions, particularly the courts, overstepping their authority. Judges are increasingly issuing rulings based on ideology rather than law, using injunctions as a tool to block Trump’s policies with little to no recourse for appeal.
This is judicial activism. Judges are supposed to interpret the law, not write it. Imagine a football referee deciding that a touchdown is suddenly worth 10 points instead of six — just because he feels like it. That’s exactly what activist judges are doing — changing the rules mid-game to fit their agenda.
The Constitution’s framers foresaw the potential for activist judges and offered solutions to keep them in check. In Federalist 78, Alexander Hamilton states that judges should not have life tenure unless they maintain “good behavior,” meaning they can be removed if they step out of line. In Federalist 81, Hamilton goes farther, making it clear that judges can be impeached if they abuse their power.
History has since established precedent. In the 1832 case Worcester v. Georgia, the Supreme Court ruled that Georgia had to stop interfering with Cherokee land. Georgia ignored it. The judge could rule about the legality of the case, but ultimately, he lacked the final authority to enforce the law.
I’m not suggesting that we ignore the courts entirely. However, we must recognize that the judiciary was never meant to be the ultimate authority. It was designed to be the weakest branch of government — it has no army, no budget, and no enforcement power beyond its rulings. Congress holds the purse strings, and the president commands the military.
The president’s move to cut the Department of Education, along with his other major checks against our unhinged federal bureaucracy, is a step in the right direction. But it’s not enough to just trim it — we need to restore it to its original purpose or dismantle it entirely.
Likewise, we need to rein in the courts. Judges should not be legislators in robes, and it’s this unchecked power that has enabled the federal bureaucracy to mutate into its current form today. Congress has the power to check them, and it’s time that lawmakers use it.
Our founders designed a system where no single branch could dominate the others. But today, the Department of Education operates beyond its charter, and activist judges make law from the bench. We have strayed far from the system of government America’s founders envisioned.
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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!”
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.
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.
President Donald Trump on Friday issued a proclamation invoking the Alien Enemies Act to deport members of the Venezuelan Tren de Aragua gang. Predictably, this move drew the ire of anti-borders activists, who classified it as an attempt to circumvent due process protections for illegal aliens. Critics claimed that the legislation can be used only in times of war, but do they have a legal leg to stand on? For several significant reasons, they do not.
The Alien Enemies Act was first passed in 1798 as one of four pieces of legislation collectively — and erroneously — referred to as the “Alien and Sedition Acts.” These laws were implemented in response to the undeclared Quasi-War with France — bolstering the federal government’s power to react to national security threats.
The Supreme Court has repeatedly affirmed that noncitizens have no constitutional right to stay in the US unlawfully.
Contrary to popular open-border narratives, these laws were not originally universally reviled. Many Americans saw them as necessary measures to ensure the safety and sovereignty of their newly established nation. Out of the four laws, however, only the Alien Enemies Act survived; the others either expired or were replaced before the Supreme Court established judicial review in 1803 with Marbury v. Madison.
Where does that leave the Trump administration today? Historically, the Alien Enemies Act has been used during wartime or in response to an invasion, such as the War of 1812 and World Wars I and II. The law itself was written broadly, however. It states that when the United States is at war with a foreign nation — or when an “invasion or predatory incursion” occurs — the president has the authority to detain and remove citizens of the hostile country.
The key question now is whether the law applies to foreign nationals like Tren de Aragua and other non-military individuals who have entered the country illegally. That hinges on the definition of “invade” or "predatory incursion.” Interestingly, neither term is defined explicitly in U.S. law, nor has the Supreme Court clarified it.
However, history offers some clues. Colonial-era legal documents allowed British subjects to defend themselves against foreign threats described as "destruction, invasion, detriment, or annoyance.” In Federalist 41, James Madison referred to the need to protect against "pirates and barbarians," suggesting that non-state actors engaged in criminal activities could qualify as invaders. Similarly, in Federalist 43, Madison warned of threats from hostile nations and the “ambitious or vindictive enterprises of [a state’s] more powerful neighbors.”
Based on these historical interpretations, two conclusions emerge. First, an invasion doesn’t have to come from a foreign government’s military. Second, as the Texas Public Policy Foundation notes, criminal organizations like cartel-linked gangs could be classified as engaging in an invasion or predatory incursion if their activities undermine U.S. sovereignty. That’s exactly what Tren de Aragua is doing.
Trump justified his decision by pointing out that Tren de Aragua is a designated foreign terrorist organization with thousands of members who have illegally entered the U.S. According to his statement, the gang is engaging in "irregular warfare and hostile actions" aimed at harming Americans, destabilizing communities, and furthering the Maduro regime’s influence.
The U.S. Constitution gives the government broad powers to respond to evolving global threats, and the Supreme Court has historically limited its review of immigration-related decisions. Additionally, the Supreme Court has repeatedly affirmed that noncitizens have no constitutional right to stay in the U.S. unlawfully.
In Kleindienst v. Mandel, the court ruled that unadmitted, nonresident foreigners have no right to entry or continued presence in the country. Similarly, Mathews v. Diaz upheld congressional authority to make laws for noncitizens that would never apply to U.S. citizens.
Given such precedent, it is hard to argue that the president lacks the authority to remove gang members who threaten American security just because Venezuela hasn’t formally declared war. But never underestimate the extent to which those manifesting “Trump derangement syndrome” will interfere with legitimate attempts to protect U.S. citizens from the likes of Tren de Aragua.
thefederalist.com
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