America, sadly, has been dealing with a long-standing crisis in civic understanding. Quite simply, a lot of Americans have a limited grasp of their government’s structure and features. Occasionally, however, events unfold that present a chance to revisit the basics. Despite the predictable media outcry of “constitutional crisis,” we are currently witnessing a significant separation-of-powers standoff that could serve as an enlightening civics lesson.
Let’s begin by looking into the executive branch’s recent activity.
Right from the start of his term, President Trump harnessed the ideas from Federalist No. 70, penned in 1788, where Alexander Hamilton argued for the necessity of a unitary executive to govern with decisiveness and efficiency. Nowadays, this approach aligns with Trump’s allies like Stephen K. Bannon, who promotes the “flood the zone” strategy, and Elon Musk, known for the “move fast and break things” philosophy. The idea is that both Trump’s opponents and the general public can be easily distracted by constant stimuli, especially given today’s relentless social media landscape.
These guiding principles explain the whirlwind of Trump’s initial weeks—a more assertive and lively MAGA wave. You can see “move fast and break things” in actions like executive orders targeting birthright citizenship and efforts to dismantle diversity initiatives within the federal government. Add to this the winding down of USAID and the potential shutdown of the Department of Education. Furthermore, “flood the zone” is evident in the relentless stream of executive orders. It’s reached a point where White House Staff Secretary Will Scharf’s regular delivery of new orders for Trump to sign has become a recurring spectacle on cable TV.
Now, let’s consider the judicial opposition.
This isn’t an unfamiliar scenario. During Trump’s first administration, judges often served as significant obstacles. Vice President Mike Pence pointed out in 2019 that their term encountered more nationwide injunctions than the first 40 administrations combined. That same year, then-Attorney General William Barr critiqued these injunctions for deviating from tradition and hindering sound judicial processes. Ultimately, Trump’s policies were stalled by 64 nationwide injunctions, affecting measures like travel bans from certain Muslim-majority countries and funding for the border wall. Among the hurdles Trump faced, none were quite as cumbersome as the judicial pushback.
Recently, lower-court judges have issued numerous nationwide injunctions against Trump’s new executive orders. This renewed judicial resistance reached a peak this week. Judge Paul Engelmayer in New York aimed to block Musk’s Department of Government Efficiency from accessing Treasury Department payment systems, while Judge John J. McConnell Jr. in Rhode Island threatened Trump’s officials with criminal contempt. Both are Obama-appointed judges, acting amidst a backdrop of Vice President JD Vance’s post cautioning that “judges aren’t allowed to control the executive’s legitimate power.”
Both Barr and Vance were right to highlight the judiciary’s reach exceeding its grasp over executive power.
As Justice Clarence Thomas pointed out in a 2018 opinion supporting the travel ban, the authority of American courts has long been about “rendering judgments in individual cases.” If the current Supreme Court gets involved, Thomas’ stance on the role of the courts might secure a majority decision.
Politically, it seems likely that Trump and congressional allies will prevail in this power struggle against lower courts’ resistance.
Hamilton noted in Federalist No. 78 that the judiciary is so reliant on the executive that it “depends on the executive branch even for the efficacy of its judgments.” Consider if Judge McConnell in Rhode Island were to pursue criminal contempt charges against someone in Trump’s cabinet. What’s the next step? Ordering jail time for Trump, Attorney General Pam Bondi, or another official? The U.S. Marshals Service would enforce such an order, but those marshals report to Bondi, who, in turn, reports to Trump. Would they simply disregard that court order? More importantly, should a federal judge like McConnell find someone in contempt, Trump might issue a pardon. Crisis averted!
Moreover, a Republican-dominated Congress could come into play—putting checks on the executive branch if both chambers opposed a Trump initiative strongly enough or by penalizing the judges encroaching on executive actions through these injunctions. Congress could seek impeachment for rogue judges, dismantle certain judgeships, limit their jurisdiction, or even humorously require judges to personally cover robe-cleaning fees. With ample tools at hand to rein in the judiciary’s excesses, Congress should probably use them more often.
Though the judicial resistance may see their actions as principled, they’re stepping beyond constitutional bounds— setting the stage for an embarrassing climbdown.
Josh Hammer is Newsweek’s senior editor-at-large. This article is published in partnership with Creators Syndicate. Follow him at @josh_hammer.
