Now more than four months into President Trump’s second term, there have been dozens of District Court injunctions blocking policies that the new administration has sought to implement.  Deportations of gang members illegally in the U.S. back to El Salvador?  Enjoined!  Mass firings at USAID?  Enjoined!  Other mass firings at 22 other agencies and departments?  Enjoined!  Cancellation of funding of certain grants for Harvard?  Enjoined!  Ending of eligibility for Harvard to participate in foreign student visa program?  Enjoined!  Termination of federal funding for public schools maintaining DEI programs?  Enjoined!  Termination of security clearances for certain prominent law firms?  Enjoined!  And these are just examples among many more.

It seems that whatever new policy President Trump tries to implement, it will be enjoined within days by some left wing federal judge.  Professor Adrian Vermuele of Harvard in a May 23 tweet called these pervasive injunctions “basically an automatic judicial veto on all new policy.” He commented, “let’s please not call it democracy.”  It’s actually the opposite of democracy:  President Trump tries to implement the policies he promised to implement and that the voters elected him to implement; and the unelected judges — almost all appointed by presidents of the party that just got voted out — stop him.  

But before you get too outraged about the courts (and Democrat-appointed judges) blocking President Trump’s every move, let’s not forget about a few constraints that the courts imposed on prior President Biden.  If you disagree with what the courts have just done in the list of injunctions in the first paragraph of this post, you might nevertheless find yourself agreeing with some big constraints that landed on Biden.  For example, in Biden v. Nebraska, the Supreme Court held that President Biden did not have the authority under the Higher Education Act to engage in mass forgiveness of student loans; and in West Virginia v. EPA the Supreme Court held that the Biden EPA did not have the authority under the Clean Air Act to force the closure of all electric power plants using fossil fuels.  The Supreme Court justices who voted to imposed these constraints on Biden were all appointed by Republicans.

So almost everyone, left or right, would agree that the courts have at least some legitimate role in reining in overreach by the executive branch.  But the cases are so politically charged that one’s view of the outcome of any given case tends to turn almost entirely on the party of the President who got blocked.  Republicans cheer on the courts when they block Democratic presidents, and Democrats are currently cheering on the courts when they block President Trump.  At the District Court level, both sides forum shop for a friendly judge appointed by a president of their own party when trying to block an action of a president of the opposite party.    

What is badly needed here are politically neutral principles by which one can distinguish the legitimate uses of the courts’ role in restraining executive overreach from the illegitimate.  Remarkably, the Supreme Court to date has not really laid down such principles to any significant extent.  The reason for that is that before now cases have not come before the Court requiring it to do so.  But now things are different.  President Trump is challenging the rule of the permanent bureaucracy to a far greater degree than did the two Bushes, or even Reagan or Nixon.