The Judicial Insurrection is Worse than you think – it's to preserve the supreme rule of the Unelected & Unaccountable
By John Daniel Davidson
The fusillade of injunctions and temporary restraining orders issued by District Court Judges across the country in recent weeks – against the Trump Administration on everything from foreign aid, to immigration enforcement, to Defense Department enlistment policy, to climate change grants for Citibank – boggles the mind. At this point, it’s not too much to say that the Federal Judiciary has plunged us into a Constitutional Crisis.
More nationwide injunctions and restraining orders have been issued against Trump in the past month that were issued against the Biden administration in four years.
On Wednesday alone, four different Federal Judges:
On Wednesday alone, four different Federal Judges:- ordered Elon Musk to reinstate USAID workers – something that he and DOGE have no authority to do
- ordered President Trump to disclose sensitive operational details about the deportation flights of alleged terrorists
- ordered the Department of Defense to admit individuals suffering from gender dysphoria to the military, and
- ordered the Department of Education to issue $600 million in DEI grants to schools
But on another, deeper level, this is an attempt by the judiciary to prevent the duly elected president from reclaiming control of the Executive Branch from the federal bureaucracy – the deep state, which has long functioned as an unelected and unaccountable 4th Branch of the government.
This unconstitutional 4th Branch has always been controlled by Democrats and leftist ideologues, who under the guise of being nonpartisan experts neutrally administering the functions of government, have effectively supplanted the political branches.
Unfortunately, to large extent the political branches have acquiesced in the usurpation of their authority.
This unconstitutional 4th Branch has always been controlled by Democrats and leftist ideologues, who under the guise of being nonpartisan experts neutrally administering the functions of government, have effectively supplanted the political branches.
Unfortunately, to large extent the political branches have acquiesced in the usurpation of their authority.
Trump, with a strong mandate from the American electorate, has resolved to wrest control of the government from the deep state. The deep state, in turn, has been forced to fall back on its last line of defense: the courts.
This scheme has been the greatest scandal of modern American government – and the crisis unfolding now is a direct result of Trump’s efforts to dismantle it.
Why are the courts willing to defend the deep state? One reason is simply the unabashed partisan hatred of Trump by specific federal judges – like U.S. District Judge James Boasberg of the D.C. Circuit, who this week arrogated to himself the authority to command Federal Law Enforcement and military personnel in a failed attempt to halt the Trump administration’s deportation of 100s of alleged foreign terrorists.
The larger cause of this judicial insurrection, however, is structural and historical, going back more than a century to the emergence of the theory of the administrative state – the modern administrative state created by Franklin Roosevelt’s New Deal, which in the 1930s established a federal bureaucracy powerful enough to actually govern. The role of government in society, contrary to the Founding Fathers, should adjust to meet the demands of the moment – and not be bound by outdated concepts like "the Rule of Law" or "Separation of Powers" – but do whatever experience permits, or the times demand.
The crucial thing, then, was to separate politics from governance. But if you take politics out of governance, where does that leave public opinion? How do you maintain a democratic form of government in which the people are supposed to have a say in how they’re governed?
You don’t, actually. It would be, and is, impossible.
Indeed, the entire point of the "administrative state" is to render elections largely meaningless – to strip the authority of the political branches (Congress and the Presidency,) to adjudicate political questions and place that authority in the hands of so-called experts inside the bureaucracy.
After generations of this sort of rule, we can see what it produces: a bloated and unaccountable deep state controlled by partisan ideologues who wield massive policymaking power, answerable to neither the President nor the Congress.
Whatever you call this system of government, it isn’t the Republic Constitutionalism our Founding Fathers set up – and it isn’t accountable to the American people. Voters can twice elect a president like Trump, only to find that the deep state is not controlled by the elected president – but is a power unto itself, indifferent to the wishes of the people.
This directly relates to the Judicial Coup now underway.
The injunctions and restraining orders are one of the results of the complete takeover of the administrative state.
In fact, they are one of the deep state’s last lines of defense against the reassertion of actual political power in the person of Trump.
This directly relates to the Judicial Coup now underway.
The injunctions and restraining orders are one of the results of the complete takeover of the administrative state.
In fact, they are one of the deep state’s last lines of defense against the reassertion of actual political power in the person of Trump.
Take for example the nation's immigration and asylum policy, which is inherently a political question that in a properly functioning republic should be decided by the elected representatives of the people. Instead of passing clear laws that settle the political question of who is allowed into the country and who isn’t, Congress created an elaborate immigration bureaucracy that purported to transcend the political nature of the question in favor of fake process neutralism.
Presidents and Members of Congress would inveigh against illegal immigration and promise to secure the border – but this was just political theater. In practice, the immigration bureaucracy implemented mass immigration that flooded the country with millions of illegal immigrant, calling them “asylum-seekers.” They had no valid claims to "asylum," but were nevertheless allowed to remain in the U.S. as their cases wended their way through the system, a process that takes years.
And because Congress abdicated its duty to settle that political question, it was settled instead by the unelected bureaucrats of the deep state – who had their own policy preferences.
It wasn’t until Donald Trump came along, and attempted to reassert political governance, that the reality of administrative rule became obvious to the American people. He tried to change it, but was immediately challenged by the deep state, which is now relying on the judiciary to uphold its authority over and against the president.
The good news is, that by attacking the deep state, Trump has forced it to fight back and expose its true nature – which isn’t that of neutral experts, but of politically and ideologically motivated actors.
President Trump has also exposed the collusion and corruption of the judiciary in upholding the deep state's supposed authority.
Radically partisan judges – who are also supposed to be neutral arbiters of the law – are now resorting to increasingly outlandish injunctions and restraining orders to maintain the deep state’s hold on power.
The "Deep State' is now being fully exposed.
President Trump has also exposed the collusion and corruption of the judiciary in upholding the deep state's supposed authority.
Radically partisan judges – who are also supposed to be neutral arbiters of the law – are now resorting to increasingly outlandish injunctions and restraining orders to maintain the deep state’s hold on power.
The "Deep State' is now being fully exposed.
This state of affairs cannot continue. Thus far, Trump has shown remarkable restraint in his response to the judicial usurpation of the presidency's legitimate executive authority – but he’s running out of ways to show deference to these federal judges, who only seem to have been emboldened by his restraint.
The plain reality is that this fight with the Federal Courts is really a fight against the entire liberal-progressive scheme of administrative rule – and it’s one that Trump has to win.
Or, that is, if the nation's consent of the governed is to maintain its rightful place in America.
John Daniel Davidson is a Senior Editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. Follow him on Twitter @johnddavidson.
