March has been great fun for anyone cheering for the United States to become a republic of judges.
As documented on the website of The Federalist and elsewhere, individual federal judges have essentially informed President Donald Trump that they -- not the duly elected head of the executive branch -- can decide how that branch will operate:
- D.C. District Judge James Boasberg took it upon himself to be the arbiter of terrorist threat assessment and national security when he ordered the administration to provide information about alleged members of the Venezuelan gang Tren de Aragua that the administration was removing from U.S. territory.
- Ana Reyes, also of the D.C. District Court, placed an injunction on an Executive Order that ended Defense Department accommodations for service members identifying as transgender. She took care to cite the legal treatise also known as the musical Hamilton in her order.
- Maryland District Judge Theodore Chuang ordered the administration to reinstate functions and payment access to employees of the U.S. Agency for International Development. Chuang did not like the role that Elon Musk has played in dismantling USAID.
- Again from the D.C. District bench, Judge Tanya Chutkin prevented the administration from canceling $14 billion of clean energy project grant monies that were a feature of programs begun by the Biden administration.
Supreme Court Chief Justice John Roberts didn't want to miss out on the fun of slapping Trump on the wrist. After Trump said that Boasberg should be impeached, Roberts issued a statement that, while not naming the president by name, cautioned that impeachment was not the way to go.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. “The normal appellate review process exists for that purpose.”
In 2010, the House of Representatives unanimously impeached federal district court judge G. Thomas Porteous, Jr., for corruption, failing to recuse himself from a matter in which he had an interest, and making false statements.
The Senate convicted Porteous on the four articles of impeachment levied by the House. But, to the point Roberts made, Porteous was the last of only 15 federal judges that Congress has impeached.
In 2019, The Wall Street Journal reported that, between 2010 and 2018, a total of 131 federal judges not only failed to recuse themselves from overseeing cases involving firms in which they or family members held shares, but ruled in favor of their own financial self-interest in two-thirds of those cases.
Participation in those cases violated the code of conduct for federal judges. Such violations do nothing to alter the appearance that the federal government is an oligarchy, in which its privileged members are not only immune from the rules and the consequences of breaking those rules, but profit financially.
Usurpation of constitutional power and general corruption seem fertile ground for impeachment. But Congress has been reluctant historically and Roberts thinks it's in poor taste.
So what are we going to do about it?
Each COS resolution that has been filed reads that a limited-purpose Article V convention will meet to propose amendments that limit the terms of federal officials and members of Congress. Federal judges are federal officials.
In his book The Liberty Amendments, Mark Levin proposes an amendment to the Constitution that limits justices of the Supreme Court to a combined term of service of no more than 12 years. Perhaps that should apply to all federal judges.
Fixed term limits for federal judges would go far in cycling out judges who see themselves not only as interpreters of the law, but policymakers and -- when it suits partisan ends -- de facto members of the executive branch. A representative republic cannot be sustained when there is such an imbalance of power.
As Thomas Jefferson wrote in a letter in 1820, "You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps...and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control."
Should we wait for Congress to address federal judges who clearly overstep their bounds? Or should the states exercise the power given in Article V to do the job from which Congress has thus far wilted? Who will step up to prevent our country from becoming a republic of judges who see it as their right and duty to usurp the executive branch, the legislative branch, and self-government itself?
