The question arises because the facts behind the term "classical liberal" are usually a revelation. This is a vital consideration given the political realignment in the states and around the world, with many on the Left moving to the Right and becoming classically liberal or just liberal in the truest sense of the word.
If that sounds confusing, it’s been primarily caused by the usual leftist Orwellian distortions of reality with word meanings, where without rational justification they have laid claim to every positive-sounding political term to cover for the fact that their collectivist ideologies are grounded in falsehoods and force. Thus, it’s important to consider the question and the facts of classical liberalism.
The phrase can be traced from the fact that the Founding Fathers were considered liberals, but their ideological beliefs were antithetical to leftists who wanted to exploit the term as their own. Anti-liberty leftists have cynically co-opted the term to hide their authoritarian intentions. Thus, the phrase classical liberal was conjured up to somehow differentiate the two, even though the phrase is hardly ever defined in most dictionaries and “classical liberal” usually defaults to "liberal." The problem for them is that the facts behind the word’s original meaning still exist, and even worse for them, most dictionariesdon’t distinguish between the two terms.,with a few going full Orwell in trying to modify and muddle the meaning to bring it in line with far-left dogma that is antithetical to the ‘classical’ definition. But let’s start with a short video from a few years ago that provides a short overview of: What is a Classical Liberal.
Classical liberalism is the idea that individual freedom and limited government are the best way for humans to form a free society. The classical liberal tradition was born from great thinkers such as John Locke, Adam Smith, John Stuart Mill, and Thomas Jefferson. While they all tinkered in their own way with the ideas of classical liberalism the core belief that the individual should always be considered above the group always remain constant. Thomas Jefferson even threw in the pursuit of happiness in the Declaration of Independence to drive home the point that your happiness wasn’t the government's to give but rather yours to take.
Putting the individual above the group not only empowers you to live your life as you see fit but it also neutralizes the forces of racism and bigotry which judge people not on their individuality but on their immutable group characteristics be it color of skin gender or sexuality.
These days liberalism has been confused with leftism or progressivism which actually has nothing to do with classical liberalism. Sadly, the left is no longer liberal at all, for it has traded in individualism for collectivism, thus placing us in an oppression Olympics where victimhood is virtue.
Now, does the idea that individual freedom and limited government as the best way for humans to form a free society sound left-wing or right-wing?
Which side of the political spectrum is based upon the pillars of individualism and individual liberty? Which side is mired in collectivism and nonexistent collective "rights?"
Doesn’t individual freedom and limited government sound very similar to conservatism?
Take note that both ideologies are based on individualism, while the leftist ideologies at the other end of the political spectrum are mired in collectivism. And that it makes the very important point that the Left is no longer liberal. In other words, collective or group "rights" are nonexistent, because rights can only be endowed to the individual.
Dr. Nigel Ashford explains the 10 core principles of the classical liberal & libertarian view of society and the proper role of government:
1) Liberty as the primary political value
2) Individualism
3) Skepticism about power
4) Rule of Law
5) Civil Society
6) Spontaneous Order
7) Free Markets
8) Toleration
9) Peace
10) Limited Government
The second principle is individualism, that the individual is more important than the collective. We should not sacrifice the interest of the individuals for what some people argue is the common good.
This was the central feature of communism and fascism, that individuals didn't matter.
Again, we see some of the same principles, with a few more added, and all of it resembling more the pro-freedom Right than the authoritarian Left. Note the very important distinction between the two sides of the political spectrum, between the individualism of the Right and the collectivism of the Left.
My regular readers know that I see a number of left-wing legal writings from day to day. One of the more sane (from time to time) pundits is Ilya Somin of George Mason University. In his latest piece, he bemoans the “Perils of the Unitary Executive Theory.” He begins by saying,
The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.
For those who didn’t major in Constitutional Law, Somin is referring to Article II, § 1, Sentence 1, which says, “The executive Power shall be vested in a President of the United States of America.” That’s pretty simple. And it is, as the Supreme Court loves to say, “Black Letter Law.”
Further, in more words from the Court, it is “unqualified.” That means that all power in the Executive Branch belongs to Donald Trump. No “ifs,” “buts,” or “excepts.” “All” means “all.” Put bluntly, as long as he occupies the White House, every bureaucrat is obligated to do what he says. If you don’t like it, then “You’re fired!”
This isn’t complicated, and as push comes to shove, all the Supreme Court needs to do is look at the language of the Constitution. In every case, Trump wins. Even Somin admits that “he is supposed to haveallthe power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution.” The next step is where Somin goes off the rails. He confuses proximate and ultimate causation.
Somin is correct that the Executive branch wields great powers that were not envisioned in the original discussions around the Constitution. In this, he agrees with James Madison in Federalist 41. Madison states that using the general welfare clause (Article I, § 8, Clause 1) to allow the government to “exercise every power which may be alleged to be necessary for the common defense or general welfare” is a “stooping to…a misconstruction.”
Madison goes on to state that logically, the enumerated powers that follow the general welfare clause explain what the clause means. In short, if it’s not in that detailed list after the General Welfare Clause, the federal government isn’t supposed to do it.
When I asked ChatGPT when this changed, it pointed me toUnited States v. Butler(1936), where the Court said, “The power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”
You can take your jaw off the floor now. During the New Deal under FDR, the Supreme Court threw the entire concept of enumerated powers out the window. This was set in concrete with Helvering v. Davis (1937), which explicitly allowed Congress to use the General Welfare Clause to do almost anything it wanted to do with your tax dollars.
As for the President’s management powers, most of the questions are unanswered. Myers v. United States(1926) clarified that the President has the freedom to fire any official he nominated, and the Senate confirmed. Then Humphrey’s Executor v. United States (1935) limited his removal power for certain specific officials. Morrison v. Olson (1988) basically echoed Humphrey’s Executor for Special Counsels. Seila Law v. CFPB (2020) and Bessent v. Dellinger (2025, DC Court of Appeals) have both chipped away at Humphrey’s Executor, and many legal observers are suggesting that the Court is looking for a way to put it six feet under.
What does this all mean for President Trump’s actions to fire lots of bureaucrats? For almost a century, Congress has felt free to create and fund lots of agencies and the cronies to operate them. This becomes a great feedback loop where more bureaucrats discover more “needs” for Congress to answer.
And with little or no pushback from anyone in the White House, the Federal Government and debt have exploded. Then a true outsider showed up. He was stymied by a Swamp more impenetrable and Dismal than he ever imagined. Even his own Vice President has now been proven to be part of the enemy swarm.
But when Donald Trump sat a second time behind the Resolute Desk with Sharpie in hand, DC changed. He can neuter many of his opponents simply by denying them access to classified information. This strips them of access to the corridors of power and rich sinecures due to their privilege.
So, it’s no surprise that they are actively pursuing legal Hail Mary strategies. But those remedies are running headlong into Article II, Section 1. Democrat district judges can try to gum up the works, but the Constitution does not care, and, ultimately, virtually everything will end up in the lap of the Supreme Court, where, contra Professor Somin, Donald Trump possesses plenary power over the management of the Executive Branch.
Ilya Somin has missed the point. Admitting that the President has complete authority over his branch of government would not be a problem if Congress was properly constrained by the Constitution’s enumerated powers. But since a rogue progressive Court ignored the plain history and tradition of the General Welfare Clause, we have a behemoth in DC. When Saint George Trump arrived to slay this dragon, those who benefit from it started screaming. Donald’s Ascalon is the proximal “threat to America” that the Swamp fears when, in fact, the ultimate threat is the Swamp itself.
We must be careful to avoid Professor Somin’s error of mistaking the proximate cause of whatever we fear for the ultimate cause. We can fix a thousand proximate causes, and like Hydra, a new head of the monster will appear. Until we return our government to one of limited, constitutionally enumerated powers, we will not have subdued the threat to liberty.
SCOTUS’ Refusal To Rein In Rogue Lower Courts Has Become A Disturbing Pattern
Lower court federal judges across the country are standing athwart the American people’s will to allow the Trump administration’s to cut government programs and deport violent gang members from the country. But these unelected judges have a long-running pattern of clinging to their status quo, even in defiance of the Supreme Court, because the high court refuses to rein them in.
The Supreme Court has the responsibility to make sure its subsidiary courts follow its directives — often by taking more cases, and making their precedent unambiguous. Arrogant, active, and open defiance on some of the most important issues, however, has been the norm from these lower courts for years, and a majority on the high court has persistently refused to stop them.
The judicial coup is thwarting the American people, and the agenda they voted for, in two ways: By blocking actions from the Trump administration upon which they have no business weighing, and not enforcing Supreme Court precedent they believe to be inconvenient or controversial, but are important to Americans like abortion, affirmative action, and election integrity.
Recent uproar about the judiciary started when Justice Amy Coney Barrett was the deciding vote joining the liberal justices in declining to hear a case that saw a lower court ruling force the Trump administration to pay $2 billion in foreign aid that it had halted. Chief Justice John Roberts, to no one’s surprise, joined them as well, and the court failed to meet the five-vote threshold needed to hear the appeal.
Then, most recently, a U.S. District Court judge, James Boasberg, in an unprecedented move, attempted to halt the deportation of alleged terrorists and gang members. Roberts dutifully defended him after Trump called for Boasberg’s impeachment.
But the judiciary suffers from more than rogue low-court judges believing they have the power to stop the executive branch when it does something the American people voted for: The Supreme Court has decided that it won’t even force the lower courts to abide by its own rulings.
“The Court routinely declines to say ‘see, we really meant it.’ They issue their ruling and call it a day,” South Texas College of Law professor Josh Blackman told The Federalist. “The Supreme Court has issued many landmark rulings, but lower courts resist those rulings. Unless the Supreme Court intervenes the lower courts will continue to resist.”
The framework has left a weak web of tentative precedent, and at least two justices — Clarence Thomas and Samuel Alito — know it, too.
Take Dobbs v. Jackson Women’s Health Organization — the case that overturned Roe v. Wade and returned regulation for abortion to elected officials — for instance. In a 2025 case, Coalition Life v. Carbondale, Thomas explicitly called out the court’s majority for refusing to take a case that could have finally overturned a 2000 precedent in Hill v. Colorado that is completely antithetical to the First Amendment, regarding abortion.
“Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill’s defunct status,” Thomas wrote in a dissent. “Our latest word on Hill — expressed in a majority opinion joined by five Members of this Court — is that the decision ‘distorted [our] First Amendment doctrines.’ If Hill’s foundation was ‘deeply shaken’ before Dobbs, the Dobbs decision razed it.”
According to Thomas, the Court had spent years chipping away at Hill, which upheld a Colorado law restricting peaceful speech within 100 feet of an abortion facility, but despite that clear track record of undercutting that decision, which has been described by the Court on separate occasions as an “‘absurd,’ ‘defunct,’ ‘erroneous,’ and ‘long-discredited’ ‘aberration’ from the rest of our First Amendment jurisprudence,” lower courts are still using it to encroach on the speech rights of peaceful protesters and religious persons praying outside clinics.
Hill’s errors were numerous. Whether Colorado’s law applies to a given speaker undeniably turns on “what he intends to say.” “A speaker wishing to approach another for the purpose of communicating any message except one of protest, education, or counseling may do so without first securing the other’s consent.” Nevertheless, the Court deemed the law content neutral on the theory that it does not prohibit a particular viewpoint or a particular subject matter. But, this Court had never — and since Hill, has never — taken such a narrow view of content-based speech restrictions. Buffer zones like the one at issue in Hill are “obviously and undeniably content based.”
“This Court has not uttered the phrase ‘we overrule Hill.’ For that reason, some lower courts have felt compelled to uphold Hill-like buffer zones around abortion clinics,” Thomas wrote. “This case is another prime example of that trend, and ‘[o]ne can hardly blame [lower courts] for misunderstanding’ when ‘[w]e [have] created … confusion.’ We are responsible for resolving that confusion, and we should have done so here.”
Alito pointed out the issue in another case that would have given the Court a chance to double down on Dobbs, where lower courts were clearly not following its precedent.
The Court’s majority again refused to take a case wrongly decided by lower courts, when the Biden administration attempted to fine a Medicare-funded work-around for Dobbs, forcing hospitals in Idaho, which had outlawed almost all abortions, to perform them anyway.
“Shortly before Idaho’s law took effect, President Biden instructed members of his administration to find ways to limit Dobbs’s reach,” Alito wrote in a dissent for Moyle v. United States. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”
It’s not just abortion, it’s Second Amendment rights as well. Lower courts repeatedly waged war against DC v. Heller, the Supreme Court precedent that struck down a law that banned handgun ownership in Washington, D.C., and clarified that the Second Amendment does not just protect a right to self defense for militia purposes.
In a 2018 case that would have allowed the Court to enforce its own precedent, the Court ran away, and had done so for years, Thomas wrote in yet another dissent slamming lower courts for defying the high court.
“Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years … If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari,” Thomas said before listing other rights that the Court would have taken cases on. “The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”
The Court used to enforce its precedent, like when lower courts attempted to defy Brown v. Board of Education and its mandate to racially integrate schools. It used to do it because it has always been part of the job — precedential decisions are not ‘one-and-done’ adventures. They will need clarification, parameters set, or clarity for lower courts to tell them the high court meant what it said.
At least one federal judge, James C. Ho of the Fifth Circuit Court of Appeals, has publicly diagnosed at least part of the problem with the court refusing to take cases: A debilitating lack of fortitude among a vast array of federal judges.
In a 2023 speech at the Heritage Foundation, Ho said many federal judges are afraid to make tough decisions, or take tough cases, because they are afraid of public backlash for making the right decision:
If you plan to be faithful to the Constitution in every case, no matter how unpopular that may be, gold stars are not in the cards for you. But that’s the job. Judges don’t swear an oath to uphold the Constitution part of the time: We swear an oath to uphold the Constitution all of the time.
If you’re an originalist only when elites won’t be upset with you—if you’re an originalist only when it’s easy — that’s not principled judging. That’s fair-weather originalism. We’re not binding ourselves to the text if we only follow it when people like the result.
“When you look at the résumé of a typical federal judge, you often see a bunch of fancy credentials,” Ho added to the argument in a 2024 piece for the National Review. “People who have devoted their whole lives to collecting gold stars tend to be motivated by one overarching objective: getting more gold stars. If that’s what drives you, then the threat of public scolding can be a powerful motivator.”
The “booing of the crowd,” Ho said, “is not going away anytime soon,” and if judges cannot handle it, they should probably find other work.
“But whether you take the charitable or uncharitable view, the lesson for judges is the same: As judges, it’s our duty to do our jobs and ignore the booing of the crowd. If you’re looking for gold stars, you’re in the wrong business,” he said. “You should become a judge for public service, not public applause, because if you do the job faithfully, you should expect to be either hated or ignored.”
Ending universal injunctions once and for all is the least the chief justice can do to defend not only the judiciary, but our country.
The chief irony of Chief Justice John Roberts’ tenure at the Supreme Court is that the man so doggedly devoted to defending the judiciary has done so much to undermine it. In so doing, he has threatened not only the court’s legitimacy but the republic itself.
His latest such act wasn’t an abomination of a ruling on the level of Obamacare, the census citizenship question, or DACA; a faulty probe into a devastating leak; or a defense of the indefensible censorship-industrial complex. It was a terse three-line statement that may prove the most consequential — and corrosive — move of them all.
“For more than two centuries,” the chief justice wrote, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
With that statement, the chief justice revealed not only that he suffers from the very self-aggrandizement plaguing the lower court judges but that he is either willfully blind to the brewing fire or lacks the will to put it out. Apparently, he is content to let it spread — digging in, defending courts acting lawlessly, and deferring to the “process.” At the same time, he attacks those who would dare notice the judiciary is self-immolating by subverting representative government and demand that something be done about it.
The chief justice’s statement came in direct response to a Truth Social post President Donald Trump published hours earlier. There, the president called for the impeachment of D.C. District Chief Judge James Boasberg — an unelected member of the federal judiciary, as Trump emphasized. Boasberg effectively usurped the president’s power and mandate to combat illegal immigration by thwarting his policy and micromanaging his operations to deport the terrorist illegal aliens of Tren de Aragua.
Rep. Brandon Gill, R-Texas, a member of the House Judiciary Committee, introducedarticles of impeachment against the judge for imperiling the nation, overstepping, and creating a “constitutional crisis” as the Trump-Roberts kerfuffle unfolded.
The self-aggrandizement lies in the chief justice’s apparent belief that he has the right and obligation to opine on the expressly political act of impeachment when that is a question for the legislative branch and ultimately the public it represents. What is absolutely “not an appropriate response” is to issue statements like his from the chambers of the Supreme Court — effectively seeking to interfere in the legislative branch’s deliberations.
Further, if you wanted to politicize the court and undermine the perception of its impartiality, what more could Chief Justice Roberts have done than to rebuke President Trump over his post? Moreover, Roberts did so after having previously attacked Trumpfor his 2018 comments about biased judges — while remaining silent as former President Biden flouted the court’s rulings; Biden and other Democrat leaders lambasted the Supreme Court and attacked its members; some called for their impeachment; and their followers threatened judges’ lives and courthouses with destruction.
To add insult to injury, Roberts showed animus toward a president who is party to litigation pending in lower courts almost assuredly ticketed for his own, and in fact, to litigation already sitting at the Supreme Court today — concerning the very dangerous judicial overreach to which the president’s post is referring.
The broader context here makes Roberts’ statement even more outrageous. Trump’s post alluded to “crooked” judges who have effectively colluded in unprecedented lawfare with the blue states, left-wing NGOs, and administrative state actors that have filed more than 100 lawsuitsaimed at paralyzing the president. The plaintiffs have proven partially successful by bringing those cases to courts (like that of Boasberg’s D.C. District) populated with Democrat nominees who have prohibited the administration from implementing its agenda at mass scale and with reckless abandon.
White House Deputy Chief of Staff Stephen Miller put it well, noting that district court judges have “assumed the mantle of Secretary of Defense, Secretary of State, Secretary of Homeland Security and Commander-in-Chief,” while dictating “the foreign policy, economic, staffing and national security policies of the Administration.”
The executive’s effort to reassert control over the executive branch — home of the unelected and unaccountable administrative state saboteurs of the Trump I agenda — and ensure it helps him fulfill the Trump II mandate, has now resulted in the unelected and unaccountable members of the judiciary resisting. There’s your assault on democracy, not to mention the republic.
Collectively in these cases, we have witnessed judges arguably rule on nonjusticiable issues, impose improper remedies, and ignore Supreme Court precedent — at times on behalf of plaintiffs arguably lacking in standing, with the judges themselves sometimes lacking in jurisdiction.
Most egregiously, as I recently reported at RealClearInvestigations, they have done so via universal injunctions issued at historic speed, scale, and of maximum potency.
This is a novel remedy, neither called for in the Constitution nor arguably in federal law, that exploded in usage under the first Trump administration. It faced nearly two-thirds of all injunctions issued this century, 92 percent of which were handed down by Democrat-nominated judges. Then, despite the urgings of Justices Clarence Thomas and Neil Gorsuch, Chief Justice Roberts and his colleagues refused to rule on their legitimacy.
As a consequence of the court’s lack of urgency, in the single month of February 2025 alone, federal judges issued more universal injunctions against the Trump administration than they did during the first three years of the Biden administration.
The Trump administration noted in a recent court filing that federal judges “have issued not just universal injunctions, but universal TROs,” generally unappealable orders at times granted without even giving the administration a hearing.
“They have run their writ not just nationwide, but worldwide,” the administration added, “And they have awarded not just universal injunctive relief, but de facto universal damages.”
This was a reference in part to the freeze of the administration’s foreign aid pause and the demand that it pay out $2 billion in funds allegedly owed to non-parties to the case all over the world pursuant to a universal TRO issued by D.C. District Judge Amir Ali. The Supreme Court refused to rule on that order, drawing the ire of Justice Alito, who issued a scathing dissent joined by Thomas, Gorsuch, and Brett Kavanaugh — but not Roberts.
As the rulings get more and more absurd in nature and reach, and as the ability of the administration to fulfill its basic constitutional duties becomes ever more imperiled, Roberts’ call for following “the normal appellate review process” — which the administration has done — is beyond alarming.
His unwillingness to rein in the lower courts is precisely why, as I further reported, members of Congress are mobilizing to halt universal injunctions by law and now to a lesser extent calling for impeaching judges. The chief justice’s willingness to let the lower courts that Congress created engage in such injustice has compelled the legislative branch to act.
That his inclination is evidently to defend the judges burning down the judiciary — and, to use another metaphor, to let cases sufficiently ripen while the entire institution rots — is remarkable.
Chief Justice Roberts self-evidently believes that the courts’ critics are a bigger problem than the lawless judges who have garnered such richly deserved criticism.
His statement is also an invitation for lower court judges to act and rule ever more brazenly. After all, the most they have to fear for egregiously political rulings is being smacked down in the “normal appellate review process.”
In near identical cases before the Supreme Court right now, the Trump administration has called for a stay of several universal injunctions upending its executive order curbing birthright citizenship. It has also called for the Supreme Court to “declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched.”
Ruling rightly on this fundamental issue by ending universal injunctions once and for all is the least the chief justice can do to defend not only the judiciary, but our country.
At this point it’s not too much to say that the federal judiciary has plunged us into a constitutional crisis. The fusillade of injunctions and temporary restraining orders issued by district court judges 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.
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 ordered Elon Musk to reinstate USAID workers (something 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.
On one level, what all this amounts to is an attempted takeover of the Executive Branch by the Judicial Branch — a judicial coup d’état. These judges are usurping President Trump’s valid exercise of his Executive Branch powers through sheer judicial fiat — a raw assertion of power by one branch of the federal government against another.
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 fourth branch of the government. This unconstitutional fourth 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.
What we’re seeing, in other words, is the return of the political (in the classical sense) to American governance. The political never really went away, of course. The idea of a neutral, nonpartisan class of experts and bureaucrats was always a fiction, a thinly-veiled scheme for implementing the Democrats’ agenda and neutralizing the effect of elections on actual governance. The voters could elect whomever they liked, but it would not much change what the bureaucracy did. 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 overseas in a failed attempt to halt the Trump administration’s deportation of hundreds of alleged foreign terrorists.
There is also the encouragement that judges like Boasberg have received not only from the Supreme Court’s refusal to step in and check these abuses of power but also from Chief Justice John Roberts’ unprecedented statement this week attacking the president for suggesting that Boasberg should be impeached (which he should).
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. As a practical matter, the modern administrative state was created by Franklin Roosevelt’s New Deal, which in the 1930s established a federal bureaucracy powerful enough to actually govern. But its intellectual and conceptual roots go back to Woodrow Wilson, an academic and unabashed progressive. Long before Wilson’s political career, he studied what he called “the science of administration” and looked to the imperial bureaucracy of Prussia in the 1880s as a template for how to transform American governance.
Wilson’s goal was to overcome what he saw as the needless inefficiencies and limitations of constitutional government. The role of government in society, according to Wilson (and contrary to the Founding Fathers), should adjust to meet the demands of the moment. At the turn of the 19th century, Wilson believed the moment demanded a government not bound by outdated concepts like rule of law or separation of powers. “Government,” he wrote in 1889, “does now whatever experience permits or the times demand.”
To accomplish this, Wilson (along with other pioneers in administrative law and politics at the time, like Frank Goodnow) believed it was necessary to create a realm of neutral administrative authority totally shielded from political influence and the vicissitudes of the ballot box. Above all, Wilson wanted to separate the business of governing from public opinion. “Wherever regard for public opinion is a first principle of government, practical reform must be slow and all reform must be full of compromises,” he wrote in 1886. “For wherever public opinion exists it must rule.” 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. Whether it’s a change of president in the White House or a shift in the congressional majority, the goal is to strip the authority of the political branches 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 republican constitutionalism that our Founders set up, and it isn’t accountable to the American people. Voters can twice elect a president like Trump, who openly ran on dismantling the deep state, only to find that the deep state is not controlled by the elected president. It is a power unto itself, indifferent to the wishes of the people.
All of this directly relates to the judicial coup now underway. The injunctions and restraining orders coming out of the federal courts are a result of the complete takeover of the administrative state. Indeed, 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 something like 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.
This immigration bureaucracy was housed in the Executive Branch, but as we can see now it was only ceremonially under the control of the president, and only so long as the president did not interfere with the bureaucracy. 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 by flooding the country with millions of illegal immigrant “asylum-seekers” who 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.
That is to say, a political question was answered with a political decision. But 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 Trump came along and attempted to reassert political governance that the reality of administrative rule became so obvious that anyone could see it. Trump wants to change how we run our immigration system, and he has a mandate from the voters to do so. 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. Trump has also exposed the collusion and corruption of the judiciary in upholding the authority of the deep state. 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.
This state of affairs cannot continue. Thus far, Trump has shown remarkable restraint in how he has responded to judicial usurpation of his legitimate executive authority. But he’s running out of ways to show deference to these federal judges, who have only been emboldened by his restraint.
The plain reality is that this fight with the federal courts is really a fight against the entire progressive scheme of administrative rule, and it’s one that Trump has to win if we ever want to restore the role of politics — that is, of public opinion and the consent of the governed — to its rightful place in America.
