Putting the Judicial Branch in Its Place

The recent spate of rulings by federal district court judges staying or overturning executive orders by President Donald Trump through national or “universal” injunctions has reignited the debate over the proper exercise of judicial power in our constitutional system of checks and balances. District court judges, whose charge is to hear and decide cases arising under federal law between parties properly within their local jurisdiction, are using the practice of universal injunctions to prevent the president’s executive actions from taking effect anywhere throughout the United States. 

The major criticism of this practice is that the popularly elected chief executive exercising executive power in a manner arguably consistent with both the Constitution and federal law now has the potential (and in many cases the reality) that his actions must meet with the approval of 677 district court judges, lest any one of them decide to issue a universal injunction to stop that execution. 

Rather than defy these injunctions, President Trump—exercising what is no doubt for him remarkable patience—has sought relief through the appellate judicial process. The Trump administration has been more successful than not at the appellate or Circuit Court level, but is ultimately pinning its hopes on a case recently argued before the U.S. Supreme Court. On May 15, 2025, the Court heard oral arguments in three cases brought by the Trump administration challenging universal injunctions staying the Trump administration’s policy of refusing to recognize birthright citizenship to the offspring of illegal aliens or those not legally authorized to be in the United States and therefore not “subject to its jurisdiction.” The Court has promised a decision soon, not on the question of birthright citizenship per se, but on whether a single district court judge, consistent with the Constitution, could issue a ruling with nationwide force negating an executive action. Arguments in favor of such rulings are that the courts must provide a check on presidential actions that exceed the president’s constitutional powers; that the due process and other rights of persons, including those not parties before the court, might be at risk from energetic execution by presidents; and that if courts do not provide this check then presidents could become authoritarian or even “dictators.”

We should indeed be wary of any governmental actions that have the potential to create a dictatorship. The U.S. Constitution was created to ensure that the rights of “we the people” were secured, but secured by a government that did not itself become destructive of those rights. This was accomplished by creating a government of limited and separated powers, with those powers carefully balanced and checked according to the nature of the powers exercised to ensure that the separated powers remained separate. Madison reminds us in Federalist #47 that when all the powers of government are exercised by the same hands or set of hands, that is the very definition of tyranny. It is well to remember that Madison considered checks and balances an “auxiliary precaution”: that “a dependence on the people is no doubt the primary control on government.”

Many of the checks on potential abuse of power within the national government focus on the legislative branch. For a variety of reasons, the founders feared legislative tyranny and therefore provided for a number of constitutional mechanisms by which the other branches could “check” the legislative branch: these included the bicameral division of legislative power; the presidential veto and other legislative powers assigned to the executive; frequent but staggered elections for legislative members; limited and specifically delineated legislative powers; among others. Hamilton in The Federalist goes to great lengths to justify the nature and extent of powers given to the executive and the judiciary, and to demonstrate how both are necessary not only to serve as checks on the legislative branch but also to secure good government. This is especially true in the case of the executive, wherein Hamilton asserts that “Energy in the executive is a leading character in the definition of good government.”

The framers of our Constitution struggled over the proper extent and division of power in the national government.

The Constitution grants lawmaking authority to Congress; however, general laws passed during times of peace often cannot anticipate all the contingencies that arise in an emergency, and Congress is ill-equipped to pass new laws after the emergency has begun. The president must have the power and discretion to act, or he will be unable to protect the nation. But if the president exercises the powers he believes are necessary during an emergency, what prevents him from crowning himself dictator when the emergency has ended?  The apparent remedy for potentially abusive or dictatorial powers exercised by presidents is not through universal injunctions issued by single, often partisan district court judges; the remedy is political: through impeachment or repudiation at the polls. The Constitution purposefully vested the executive power in one person, the president, and provided for both presidential responsibility and accountability. It is the president’s accountability to the people: through the limited term of office; through the requirement that the president face the voters; and through the potentiality of impeachment that renders an energetic executive safe in our constitutional republic.

Article III of the U.S. Constitution provides a bare outline of the federal judiciary, leaving much of the structure and organization of the federal courts, including the Supreme Court, to Congress. In Federalist #78, Alexander Hamilton discusses the establishment of an independent judiciary in the proposed Constitution, arguing that such independence is “peculiarly essential in a limited Constitution.”  This independence can only be guaranteed, according to Hamilton, when judges hold their offices “during good behavior,” which provides an “excellent barrier to the encroachments and oppressions of the representative body.” But Hamilton reminds us that there is little reason to fear the tenure in office established in the Constitution for federal judges, because the judiciary itself provides little cause for concern:  Hamilton’s discussion of judicial power emphasizes its inherent weakness relative to the other two branches of government, concluding that the judiciary has neither force nor will, but only judgment, and must ultimately depend upon the executive arm to enforce its judgments. An independent judiciary was an innovation of what Hamilton called “the new science of politics,” and his explication of judicial power —especially the power of judicial review—within the constitutional system of checks and balances presages Chief Justice John Marshall’s defense of that power in Marbury v. Madison.

Article III of the U.S. Constitution discusses the powers and composition of the judiciary, vesting “the judicial power in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” Article III then goes on to define the extent of judicial power, i.e., what is included within the jurisdictional reach of the federal judiciary. The Constitution assigns considerable powers to Congress in the composition and structure of the federal judiciary. Under a strict reading of the Constitution, there must be a Supreme Court which includes a Chief Justice exercising both original and appellate jurisdiction over those subjects specified in Article III section 2, with the latter being subject to exceptions by Congress; members of the federal judiciary are nominated by the president and confirmed by the Senate; the Chief Justice, any associate justices, and any judges of any “inferior courts” created by Congress enjoy lifetime appointments under “good behavior”; and members of the federal judiciary can be removed from office by impeachment by the House of Representatives and conviction by two-thirds of the Senate. In other words, the Constitution grants Congress extensive powers to check the judiciary, although it is rare for Congress to exercise these powers. Rather, it is fashionable to assert that the current composition and practice of the federal judiciary—most of which were created by Congress in the legitimate exercise of its constitutional powers—cannot be limited or controlled by any constitutionally sanctioned congressional action that might encroach upon “judicial independence.”

This rather skewed notion of judicial independence has become in modern parlance almost synonymous with the idea that only the judiciary can provide for constitutional checks and balances and ensure that individual rights are protected against government overreach. That such a role was never envisioned by the founders goes without saying; yet proponents of this vaunted idea of judicial power frequently rely on Marshall’s decision in Marbury to justify their position that the judiciary is the final—and in many cases the only—check on government. In the course of justifying the exercise of judicial review, i.e., the power to declare laws contrary to the Constitution null and void, Marshall asserts that “it is emphatically the province and duty of the judicial department to say what the law is.” However, so problematic was this assertion of power both at the time and for almost half a century after that, the Supreme Court did not again (until the infamous Dred Scott case) declare another law of Congress unconstitutional. Moreover, the nature of that power exercised in Marbury was of a quite limited character, dealing specifically with a provision of a law passed by Congress that attempted to add to the Supreme Court’s own powers. Marshall declared the law null and void, thereby refusing to exercise that power in a highly political and controversial case. In other words, the great Chief Justice Marshall’s only use of the power of judicial review to strike down an act of Congress was in a case dealing directly with the Supreme Court’s powers. This is a far cry from a single district court judge ordering the President of the United States to stop the deportation of a generalized class of criminal illegal aliens without (its skewed and faulty definition of) due process.

Indeed, it is the Dred Scott case that most closely parallels the exercise of judicial power advocated by those who argue that universal injunctions are necessary to prevent an overly energetic president from enforcing his interpretation of this nation’s laws. The most divisive political controversy in the antebellum period was the question of the extension of chattel slavery into new territories. The Kansas-Nebraska Act of 1854 was passed with the promise of quelling this controversy by taking the question of whether slavery should be allowed into new territories out of the halls of Congress and giving it to the people of the territories closest to the issue to decide. On the surface, this was the “democratic” solution; indeed, the policy was dubbed “popular sovereignty.” The Republican Party was founded in opposition to the Kansas-Nebraska Act and this definition of popular sovereignty, which, of course, meant that the issue had become even more divisive, not less.

In 1857, the U.S. Supreme Court weighed in on the controversy, ostensibly to settle the issue in a manner that would no longer dominate the halls of Congress and thereby prevent the country from being divided along sectional lines. The Court, ignoring both the Constitution and history, determined that Dred Scott, a slave taken by his master into free territory to live, was still a slave even though Congress had outlawed slavery in that territory in the Missouri Compromise of 1820. Chief Justice Roger Taney’s decision first determined that blacks (not merely slaves) were not and could not be citizens of the United States, and could therefore not sue in federal courts. Of course, at that point, the case should have been dismissed with only Dred Scott having to suffer the consequences of the Supreme Court’s ill-considered ruling. However, the Court went further and declared the Missouri Compromise unconstitutional, asserting that

the right of property in a slave is distinctly and expressly affirmed in the Constitution…. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

In Dred Scott, the rogue Court determined that slaves were property, and that Congress had the duty to protect slave owners’ Fifth Amendment due process rights; hence a law that prohibited slaveowners from taking their slaves into the territories regulated by Congress, in essence failing to protect their property, was unconstitutional and therefore null and void. Rather than quell the controversy surrounding slavery in the territories, the Dred Scott decision further inflamed the situation, leading ultimately to the Civil War. Abraham Lincoln notes in his famous speech on the Dred Scott decision:   

Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

We believe…in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution.

Lincoln’s argument here is subtle and prudent, but he further qualifies what he means by “fully settled” in his next paragraph:

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent (emphasis added).

Lincoln thus establishes a rigorous set of standards by which Supreme Court decisions could become definitive interpretations of the Constitution, creating binding precedents that must be followed by national and state legislatures, executives, and judiciaries. In a constitutional system of separated powers, the question of whose interpretation of the Constitution is final is an important one. There is little evidence that the framers of the Constitution intended for the Supreme Court to be the sole and final interpreter of the Constitution, with its decisions creating binding precedents that circumscribe our most fundamental rights and liberties, making them only as inclusive or narrow as the Court defines them. There is almost no evidence that the framers intended for the Supreme Court to define or limit the exercise of the powers of the other branches. In a recent Civitas Outlook article providing an excellent analysis of single judge universal injunctions, John Yoo and Robert Delahunty note that: “[I]n interpreting the Constitution, the branches cannot force each other to adopt their favored reading of the law. They must respect each branch’s freedom to carry out its unique functions. Just as the President cannot order the courts how to decide cases, the Supreme Court cannot force a President to veto or sign a bill.” 

Unfortunately, the recent increase in single-judge universal injunctions—supported by only a relatively small, ideologically extreme faction of the population—has further undermined respect for the judiciary, which was already on a historic negative trajectory. Partisan disagreement with the outcome of politically controversial cases, as well as with the judiciary’s power to decide such questions, has served to undermine the public’s confidence in the courts as neutral arbiters outside the political arena.

While pronouncing their many controversial rulings with a solemn sense of finality, the judiciary has usurped the people’s right to rule themselves according to the Constitution they founded and which they ultimately are responsible for upholding. Courts have convinced the American people that it—and not they—are the final arbiters of what the Constitution should mean, regardless of what it states. Accordingly, judicial rulings on contentious political questions often serve as the foundation upon which these questions are subsequently discussed and debated. Understanding the Supreme Court in this context means recognizing that the Court has become a “molder of public opinion,” and as Abraham Lincoln reminded us, “Our government rests in public opinion. Whoever can change public opinion, can change the government, practically just so much.”

The Court’s rulings in cases involving slavery, abortion, religious freedom, same sex marriage, reapportionment, diversity, illegal immigration, administrative rule, and many other controversial issues have often defined those issues within the political process in a way that has precluded genuine democratic debate and republican rule. This is why the usurpation of power by the judiciary has become problematic not only from a separation of powers perspective but also because of the central role it now plays in defining for Americans how they should understand their Constitution. This is no small thing: one only has to think of the many regrettable decisions issued by courts to realize that the judiciary is perhaps the least suited to play this role, as it has no superior expertise or insights into political controversies. For all these reasons, it is time to rein in the excesses of the federal judiciary and to return political power where it belongs: to the political branches of government and ultimately to the people.

Linda Denno is the Associate Dean of Academic Affairs & Administration for the University of Arizona, College of Applied Science and Technology. She also serves as the Civilian Aide to the Secretary of the Army for Arizona, an appointed civilian position that carries the equivalent rank of three-star general.