At this point it’s not too much to say that the federal judiciary has plunged us into a constitutional crisis. The fusillade of injunctions and temporary restraining orders issued by district court judges in recent weeks against the Trump administration — on everything from foreign aid to immigration enforcement to Defense Department enlistment policy to climate change grants for Citibank — boggles the mind.
More nationwide injunctions and restraining orders have been issued against Trump in the past month that were issued against the Biden administration in four years. On Wednesday alone, four different federal judges ordered Elon Musk to reinstate USAID workers (something he and DOGE have no authority to do), ordered President Trump to disclose sensitive operational details about the deportation flights of alleged terrorists, ordered the Department of Defense to admit individuals suffering from gender dysphoria to the military, and ordered the Department of Education to issue $600 million in DEI grants to schools.
On one level, what all this amounts to is an attempted takeover of the Executive Branch by the Judicial Branch — a judicial coup d’état. These judges are usurping President Trump’s valid exercise of his Executive Branch powers through sheer judicial fiat — a raw assertion of power by one branch of the federal government against another.
But on another, deeper level, this is an attempt by the judiciary to prevent the duly elected president from reclaiming control of the Executive Branch from the federal bureaucracy — the deep state, which has long functioned as an unelected and unaccountable fourth branch of the government. This unconstitutional fourth branch has always been controlled by Democrats and leftist ideologues who, under the guise of being nonpartisan experts neutrally administering the functions of government, have effectively supplanted the political branches. Unfortunately, to large extent the political branches have acquiesced in the usurpation of their authority.
Trump, with a strong mandate from the American electorate, has resolved to wrest control of the government from the deep state. The deep state in turn has been forced to fall back on its last line of defense: the courts.
What we’re seeing, in other words, is the return of the political (in the classical sense) to American governance. The political never really went away, of course. The idea of a neutral, nonpartisan class of experts and bureaucrats was always a fiction, a thinly-veiled scheme for implementing the Democrats’ agenda and neutralizing the effect of elections on actual governance. The voters could elect whomever they liked, but it would not much change what the bureaucracy did. This scheme has been the greatest scandal of modern American government, and the crisis unfolding now is a direct result of Trump’s efforts to dismantle it.
Why are the courts willing to defend the deep state? One reason is simply the unabashed partisan hatred of Trump by specific federal judges, like U.S. District Judge James Boasberg of the D.C. circuit, who this week arrogated to himself the authority to command federal law enforcement and military personnel overseas in a failed attempt to halt the Trump administration’s deportation of hundreds of alleged foreign terrorists.
There is also the encouragement that judges like Boasberg have received not only from the Supreme Court’s refusal to step in and check these abuses of power but also from Chief Justice John Roberts’ unprecedented statement this week attacking the president for suggesting that Boasberg should be impeached (which he should).
The larger cause of this judicial insurrection, however, is structural and historical, going back more than a century to the emergence of the theory of the administrative state. As a practical matter, the modern administrative state was created by Franklin Roosevelt’s New Deal, which in the 1930s established a federal bureaucracy powerful enough to actually govern. But its intellectual and conceptual roots go back to Woodrow Wilson, an academic and unabashed progressive. Long before Wilson’s political career, he studied what he called “the science of administration” and looked to the imperial bureaucracy of Prussia in the 1880s as a template for how to transform American governance.
Wilson’s goal was to overcome what he saw as the needless inefficiencies and limitations of constitutional government. The role of government in society, according to Wilson (and contrary to the Founding Fathers), should adjust to meet the demands of the moment. At the turn of the 19th century, Wilson believed the moment demanded a government not bound by outdated concepts like rule of law or separation of powers. “Government,” he wrote in 1889, “does now whatever experience permits or the times demand.”
To accomplish this, Wilson (along with other pioneers in administrative law and politics at the time, like Frank Goodnow) believed it was necessary to create a realm of neutral administrative authority totally shielded from political influence and the vicissitudes of the ballot box. Above all, Wilson wanted to separate the business of governing from public opinion. “Wherever regard for public opinion is a first principle of government, practical reform must be slow and all reform must be full of compromises,” he wrote in 1886. “For wherever public opinion exists it must rule.” The crucial thing, then, was to separate politics from governance.
But if you take politics out of governance, where does that leave public opinion? How do you maintain a democratic form of government in which the people are supposed to have a say in how they’re governed? You don’t, actually. It would be, and is, impossible. Indeed, the entire point of the administrative state is to render elections largely meaningless. Whether it’s a change of president in the White House or a shift in the congressional majority, the goal is to strip the authority of the political branches to adjudicate political questions and place that authority in the hands of so-called experts inside the bureaucracy.
Keep reading
You must be logged in to post a comment.