Checks and balances: Trump, supporters seek to push back against 'activist' judges

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Jonathan Turley ‘baffled’ by courts ‘intruding significantly’ on Trump’s authority

George Washington law professor and Fox News contributor Jonathan Turley joins 'Fox & Friends' to discuss courts blocking President Donald Trump and Elon Musk's DOGE cuts as Democrats celebrate.

As the lawsuits filed against President Donald Trump have climbed well past the triple-digit mark less than three months into his presidency, some supporters are questioning what actions – if any – can either members of Congress or the White House take to check the power of the courts.

Trump's supporters have criticized so-called "activist" judges who have ruled against Trump. Notably, some have labeled U.S. Supreme Court Justice Amy Coney Barrett, a Trump appointee, as such after she sided with Chief Justice John Roberts and left-leaning justices to uphold a lower court decision that forced the Trump administration to unfreeze USAID payments previously authorized by Congress. 

More recently, the White House contested a federal judge's order blocking the administration from using a 1798 wartime law to deport Venezuelan nationals, including alleged members of the violent gang Tren de Aragua. When U.S. District Court Judge James Boasberg ordered the Trump administration to turn around any plane carrying deported foreign nationals, the administration sent hundreds of deportees to El Salvador anyway, seemingly in defiance of the judge. 

White House press secretary Karoline Leavitt told Fox News later that the plane in question had already "left U.S. airspace" and later added that the administration should not need to comply with the judge's order. 

WHO IS JAMES BOASBERG, THE US JUDGE AT THE CENTER OF TRUMP'S DEPORTATION EFFORTS?

President Donald Trump, right, listens as Tesla and SpaceX CEO Elon Musk speaks next to a Tesla Cyber Truck and a Model S on the South Lawn of the White House in Washington, D.C. (Andrew Harnik/Getty Images)

"The order, which had no lawful basis, was issued after terrorist [Tren de Aragua] aliens had already been removed from U.S. territory," Leavitt said, adding, "A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil."

Boasberg ordered the parties back to court Monday for a hearing over the matter and set a Tuesday deadline for the Justice Department to provide the court with more information about what happened. However, Trump's apparent defiance of the court demonstrates how the executive branch is looking to push back against judges whose opinions it does not respect, while supporters in Congress cheer on. 

"Judges targeting President Trump are political hacks and their decisions belong in my SHREDDER," Rep. Andy Ogles, R-Tenn., wrote on X last week, sharing a video that criticized another judge, U.S. District Judge Amir Ali. Ogles called Ali a "Biden-appointed, woke judicial activist" after the judge, following the Supreme Court's guidance, ordered the government to pay nearly $2 billion in "unlawfully" restricted USAID funds. 

Sen. Mike Lee, R-Utah, a frequent critic of the courts, shared Ogles' post and wrote, "Judges aren't presidents." Lee, in recent weeks, suggested that some judges handing down defeats for the Trump administration "might warrant removal." 

FEDERAL JUDGE ORDERS TRUMP ADMINISTRATION TO PAY ‘UNLAWFULLY’ RESTRICTED USAID FUNDS

James Boasberg, incoming chief judge of the US District Court, in Washington, D.C., on Monday, Mar. 13, 2023. (Valerie Plesch/Bloomberg via Getty)

Congress indeed has the power to impeach and remove federal judges for misconduct, corruption or other offenses – Trump has called for Congress to do so – but two-thirds of the Senate would need to vote in favor of removal, and Democrats are unlikely to join Republicans in any such effort. 

Many judges, for their part, have taken umbrage at the sweeping nature of Trump's executive orders, which have called for the gutting of government personnel, halted billions in foreign aid – including funds approved by Congress – and attempted to unilaterally end birthright citizenship, among other actions. 

"An American President is not a king – not even an 'elected' one – and his power to remove federal officers and honest civil servants like plaintiff is not absolute," U.S. District Court Judge Beryl Howell said earlier this month in a court order reinstating a member of the National Labor Relations Board.

Constitutional scholars say these separation of powers conflicts long predate Trump and are somewhat expected because of the recent lack of action from the United States Congress.

Article I empowers Congress to "make all Laws which shall be necessary and proper" for the executive branch to function. However, when lawmakers focus more on their re-election campaigns or partisan fighting than enacting law, there is a vacuum that is filled by executive action – which faces tough scrutiny from the courts. 

HERE'S WHY DOZENS OF LAWSUITS SEEKING TO QUASH TRUMP'S EARLY ACTIONS AS PRESIDENT ARE FAILING

U.S. District Judge Amir H. Ali is a Biden appointee on the United States District Court for the District of Columbia. (United States District Court for the District of Columbia)

Congress passed slightly fewer than 150 bills during the 118th session, according to data compiled by the firm Quorum and reported by Axios – making that session, which ended in December, the most unproductive since at least the 1980s.

Recent presidents, including former Presidents Barack Obama and Joe Biden, have responded with a flurry of executive orders and actions to enact their agenda, analysts explained to Fox News Digital in an interview. 

According to the Code of Federal Regulations and the Federal Register, a president’s executive order can be revoked or modified only by the president or via the legislative branch, if the president was acting on authority that had been granted by Congress. In the Trump era, lawsuits have alleged that Trump has acted without authorization from Congress. 

In the absence of clearly written laws, judges wield enormous power to interpret the lawfulness of the executive's action and have done so. Critics of the judiciary have advocated for Congress to curtail this power by either changing the size or structure of certain lower courts or taking similar action.

Harvard Law professor Adrian Vermeule opined in a social media post Thursday that Congress, with its Republican majorities in the House and Senate, could simply move to cut off funding for judicial law clerks and other essential legal personnel, making the legislative branch's "power of the purse" painfully clear. 

"If Congress simply refused to fund judicial law clerks, secretaries, or computers, one suspects that the TROs would come out more slowly - and perhaps even that the judiciary would gain a renewed appreciation for the limits of its role," Vermeule wrote on X.

However, given Congress's difficulty in passing legislation, including days of infighting that have delayed the passage of recent stopgap spending bills, it is unclear how effective lawmakers of either party would be at rallying behind a measure like the one he proposed.

Options available to the White House are more limited by the Constitution. The president can appoint federal judges, but he cannot fire them. The executive branch is also responsible for enforcing court rulings and may either slow-roll or de-prioritize decisions the president disagrees with. However, such an action would violate historical deference given to the courts, although Trump now seems to be willing to do so.

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President Donald Trump signs an executive order in the Oval Office at the White House in Washington, D.C. (Pool)

After the Supreme Court upheld a district court's decision this month ordering the Trump administration to pay nearly $2 billion in owed payments to USAID contractors for completed projects, Judge Ali said in his ruling that the Trump administration likely exceeded its constitutional authority in attempting to block the payments.

"Here, the executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent," Ali said.

"The executive not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress’ exclusive authority to dictate whether the funds should be spent in the first place." Ali added.

However, it is unclear what remedies the White House would have unilaterally to push back on the decision, short of appealing certain portions to the Supreme Court that were not ruled on directly – prompting criticism from some.

As president, Trump "is exercising Article II power to take care that our federal laws are faithfully executed," Mike Davis, the founder and president of the Article III Project, or A3P, told Fox News Digital in an interview. 

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"That's his constitutional duty. And that includes weeding out waste, fraud and abuse. That’s what he's doing with Elon Musk and with DOGE," said Davis, a former Supreme Court clerk for Justice Neil Gorsuch. 

It is unclear whether the White House plans to appeal any part of Judge Ali's preliminary injunction ruling, and administration officials did not immediately respond to Fox News Digital's request for comment.