Federal judges’ Trump hate is only harming the courts themselves

Donald Trump is demonstrating a skill at backing his opponents into corners that he didn’t show in his first term. 

Of course, it helps that his enemies are, unaccountably, cooperating.

One of Trump’s best moves has been, repeatedly, to get the Democrats to take the “20%” side on the so-called “80/20 issues.” (To be fair, sometimes they’re more like 70/30 issues, but close enough.) 

One reason he’s been able to do this is that Democrats reflexively oppose anything he does.

So when Trump promises to cut spending sharply and reduce the debt, Democrats go all-in against it, even though it’s something a huge majority of Americans support. 

Agitating to continue waste, fraud and abuse — especially when there are truly glaring examples of it — is a bad look. But it was just the start.

Billions for USAID: An 80/20 issue. Dems took the 20% side. 

Keeping boys out of girls’ sports: Another 80/20 issue, Dems took the 20% side. 

Closing the border, energy independence, supporting Israel, deporting dangerous aliens, on and on. 

Trump has the Democrats jumping to defend basically every issue that a Democratic strategist of 20 years ago, or maybe even 10 years ago, would have told them to avoid like the plague.

Heck, while Sen. Mark Kelly (D-Ariz.) was performatively trading in his Tesla for a gas-guzzling Tahoe SUV, Democrats’ new bete noir Elon Musk was rescuing Kelly’s fellow astronauts stranded on the International Space Station. (You can tell this dramatic space rescue is a good look for Trump and Musk and a bad one for the Democrats by the non-coverage it’s received in the mainstream media.)

As a consequence, Democrats have hit a new all-time low in approval ratings, while Trump’s approval is up, and the most Americans since 2004 say the country is on the right track.

Now Trump is drawing out the nation’s partisan district judges, causing them to overextend themselves in ways that will cost them — and the judiciary itself — a lot.

Lower-level federal judges have been issuing orders against the administration, purporting to block Trump-ordered spending cuts, halt layoffs of government employees and more.

In the latest incident, Chief Judge James Boasberg of the US District Court for the District of Columbia on Saturday tried to block Trump’s deportation of more than 250 illegal aliens tied to the Venezuelan Tren de Aragua gang, a federally designated foreign terrorist organization.

Trump was relying on the Alien Enemies Act of 1798, a venerable statute that allows the president to order the deportation of “alien enemies” in times of war, invasion, incursion or threat thereof. 

Trump’s deportation order declared that Tren de Aragua members were specifically exported here by the hostile Venezuelan government, as he placed them on airplanes and sent them to points south.

Though the law dates back to the 18th century, it has been employed regularly in modern times. A 1948 Supreme Court case, Ludecke v. Watkins, interpreted presidential authority under the law very broadly, holding that it precluded judicial review of the removals.  

Judge Boasberg is obviously inclined to disagree.

Boasberg’s ruling is part of a wide-ranging legal resistance effort, mostly organized by various left-leaning legal groups that engage in “judge shopping” to get anti-Trump decisions out of friendly district jurists. 

But in doing so, they, like the Democrats, may be playing into Trump’s hands.

As these cases pile up, it’s becoming more likely that the Supreme Court will rein in this judicial overreach. 

The ability of a single federal judge to block government action nationwide — let alone a president’s exercise of foreign policy — is not well established. It was a rare occurrence before Trump’s first term.

Chief Justice John Roberts has frequently expressed concern with the “institutional legitimacy” of the federal judiciary. At times that’s seemed limited to gaining the approval of the editorial pages of The Washington Post and The New York Times.

But he may need to consider what the rest of America thinks, lest he wind up on the 20% side of an 80/20 issue — an awkward place to be when you’re concerned about legitimacy.

Congress, too, may take action.

Utah Sen. Mike Lee has proposed a law requiring a three-judge panel — two district judges and one court of appeals judge, ideally from three different circuits, for diversity’s sake — to rule on challenges to presidential orders.

It’s similar to a procedure that existed before 1976. Appeals would go directly to the Supreme Court. 

The Supremes wouldn’t like this — it would increase their workload, and place them in the line of political fire. 

But the threat of Lee’s legislation intruding on judicial independence may nudge the Chief Justice and his peers into restricting the lower courts’ actions themselves — sooner rather than later.

Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the InstaPundit.com blog.