Rudderless and dispirited Democrats are waging lawfare to thwart Trump, often on the losing side on hot-button ‘80:20’ issues against 80 per cent of Americans: cutting government waste, fraud and abuse; abolishing USAID; keeping boys out of girls’ sports, toilets and showers; securing the border and affordable energy; and deporting dangerous aliens. The result is record-low favourability ratings for Democrats: 27 and 29 per cent according to NBC and CNN. By contrast Trump is viewed favourably by 47 (NBC) and 50 per cent (Rasmussen). At its worst under Biden, in July 2022 the spread between those saying America was headed in the right direction (17.9 per cent) and wrong (75.4) was -57.5. Last July it was still 44 points and on 9 November it stood at 36.5. As of 17 March it had reduced to 8.5, with 42.6 per cent saying the US is moving in the right direction: the highest in two decades.

The judiciary could find itself courting a slide in public support. Will Americans support kid glove treatment of illegal aliens who have engaged in gang-related crimes? Should appointed judges who singularly failed to protect people’s rights under assault from governments during Covid, have an unrestricted right to prevent the elected President from implementing his mandate? Does one judge have the power to override the Defense Department and Homeland Security on national security, with planes already in the air? District Judge James Boasberg ordered a halt to the deportation of over 250 illegal Venezuelans with links to the Tren de Aragua gang, a federally designated foreign terrorist organisation. Flights already in progress were told to return. This did not happen. It was but one decision in a wide-ranging legal resistance campaign. A senior Trump adviser, Stephen Miller, said a district court has ‘no ability to in any way restrain the President’s authority under the Alien Enemies Act’. Trump posted that Boasberg is a ‘troublemaker and agitator’ Obama judge who ‘should be IMPEACHED!!!’.

Critics warned of an ‘assault on the entire constitutional order in America’. In a rare public rebuke, Chief Justice John Roberts (who stayed silent when a roll-call of Democrats called for impeachment of judges) said ‘impeachment is not an appropriate response to disagreement’ on judicial decisions. He ignores a basic cause of the looming constitutional crisis, namely the absence of mechanisms to ensure the judiciary stays in its own lane even while admonishing the executive to stay in its lane. Separation of powers imposes limits on the jurisdictional overreach of all three branches. The judiciary cannot be the sole arbiter of its own reach and limits as well as that of Congress and the President. Who then holds the judiciary accountable to its limits? National injunctions inevitably encourage activists to lodge a case in a jurisdiction and with a judge likely to be sympathetic. The assumption that no judge ever acts in an ideologically partisan way is demonstrably false. Events in the real world move much faster than the glacial pace of judicial proceedings. This means the Supreme Court too must move faster and decisively to rein in out-of-control judges. An alternative interpretation to the alarmist ‘constitutional crisis’ therefore is that Trump’s actions may help to restore constitutional integrity and democratic accountability by stripping power and resources from the bloated administrative state and returning them to Congress and the executive.

National injunctions from district courts are rare when Trump isn’t involved. According to an article in the Harvard Law Review last year, there were a total of 127 from 1963 to the start of 2020. More than half – 64 – were against the first Trump administration. In the period covering the Bush Snr and Obama presidencies, plus Biden’s first three years, there were 32. In February alone this year there were 15 against second-term Trump, according to a Justice Department filing in the Supreme Court. Judge Boasberg gave a get-out-of-jail-free card to FBI lawyer Kevin Clinesmith who had altered an email in order to get a warrant under the Foreign Intelligence Surveillance Act for surveillance of Trump campaign adviser Carter Page. This was the prelude to the Russia collusion hoax that severely hobbled the first-term Trump. Boasberg sentenced Clinesmith to probation rather than jail. He also meted out controversial sentences to protestors at the US Capitol on 6 January 2020 and ordered Mike Pence to testify before the grand jury investigating Trump’s role in those riots.

The problem of judicial overreach exists more broadly across the West. Pushed by voters to take back control of porous borders, governments are frustrated by courts that approve activist cases alleging breaches of national and international legal standards. The result is that as many Western democracies reach an inflection point on mass immigration, courts have become the place where democracies go to die. PM Keir Starmer, possibly the strongest supporter of the rule of law among world leaders, complained on 13 March about ‘A sort of cottage industry of checkers and blockers using taxpayer money to stop the government delivering on taxpayer priorities’. The Australian has run a series of articles exposing the scandal of ‘right-think’ courses at Macquarie University law school involving Aboriginal Australians. Some of tomorrow’s judges will be graduates of these schools. Will they apply the law free of indoctrinated prejudices?

Impeachment is a prerogative of Congress on which the courts don’t have a vote: only members of the House and the Senate do. Moreover, the crisis has intensified to this point because of the Supreme Court’s institutional timidness-cum-cowardice. As part of the administration-wide drive to cut waste and fraud, Trump ordered a review of all federal grants and a pause on grant payments in the interim. On 5 March, a 5-to-4 majority including Roberts and Trump appointee Amy Coney Barrett rejected Trump’s appeal to vacate a mid-February ruling by a Biden-appointed judge for USAID to disburse grants to NGOs for work that had already been completed. Dissenting Justice Samuel Alito wrote, ‘Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel’ the US government ‘to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned’. John Daniel Davidson wrote in the Federalist on 6 March that if the Supreme Court is going to permit executive authority to be ‘usurped by an inferior federal court’ in violation of the constitution’s clear separation of powers, then Trump should ignore the Court.

Chief Justice Roberts has previously expressed concern with the ‘institutional legitimacy’ of the federal judiciary. The Supreme Court needs to step in fast to rein in judicial overreach by district court judges and adopt orderly systems of adjudication of urgent matters. Utah Republican Senator Mike Lee has proposed a law requiring a three-judge panel from different circuits – two district judges and one court of appeals judge – to rule on challenges to presidential orders, with the possibility of appeal directly to the Supreme Court.