The recent anti-Trump decisions by federal judges have reached far beyond the legitimate constitutional boundaries of the federal judiciary. That’s why the disappointing remark made by Judge Neil Gorsuch, Trump’s nominee to the Supreme Court, was a cause for concern among conservatives.
Certainly Justice Scalia would never have complained that criticism of judges was “disheartening” or “demoralizing.” Scalia himself often used scathing language about other judges, such as the time he wrote that “I would hide my head in a bag” rather than join an opinion of his colleague, Justice Anthony Kennedy.
President Trump has at least one appointee who is vocal on this topic – White House policy advisor Stephen Miller. Miller astutely observed that Judge James Robart’s decision in Washington State was a “judicial usurpation of power” because “it is a violation of judges’ proper role in litigating disputes.”
Precisely 20 years ago, Phyllis Schlafly wrote against the growing problem of judicial supremacy in her monthly Phyllis Schlafly Report. Her words then ring just as true today: "The most important duty of the 105th Congress is to protect America from judicial usurpation and restore our constitutional balance of powers among the three branches of our government.”
“The Senate and House Judiciary Committees should hold extensive hearings on various proposals to stop the usurpation of power by the federal courts,” Phyllis continued. “Congress's investigative function is one of its most important duties, and now is the time to use it.”
If Congress fails to act, however, it is incumbent on the executive branch to check-and-balance overreaching by another branch of government. The power of the executive branch to take action against foreigners seeking entry into our Nation is central to its constitutional authority.
Presidents Thomas Jefferson, Andrew Jackson, and Abraham Lincoln all properly stood up against an overreaching federal judiciary, setting precedents for future presidents to do likewise.
President Ronald Reagan was tested early in office by the Air Traffic Controllers strike, and he rose to the challenge. So should President Trump.