Executive vs. Judiciary: A Constitutional Crisis?

Donald Trump’s dizzying array of reforms is being met by a blizzard of Democrat lawsuits.

Is there any more tired, more hackneyed, more melodramatic phrase than the so-called “constitutional crisis” canard that the Democrats and their Leftmedia lickspittles keep trotting out? If you’ve been away for a spell, here’s a sampling.

Yesterday, White House Press Secretary Karoline Leavitt called all this coordinated fearmongering “an extremely dishonest narrative,” but, to be fair, the Democrats do this every time they’re on the defensive, every time Donald Trump runs roughshod over them. In a way, this “constitutional crisis” is the Left’s new Russia, Russia, Russia. It’s all they seem to be able to talk about.

“If you keep yelling, people are going to stop paying attention,” said Pennsylvania Democrat Senator John Fetterman, who has by default become his party’s lone conduit to political reality. “Democrats have already used the most severe kinds of language and condemnation. It’s going to lose its value, and no one’s going to pay attention to it.” Welp, at least The Hoodie gets it.

“I think this is the most serious constitutional crisis the country has faced, certainly since Watergate,” said Senator Chris Murphy, who clearly didn’t get the Fetterman memo. “The president is attempting to seize control of power and for corrupt purposes. The president wants to be able to decide how and where money is spent so that he can reward his political friends, he can punish his political enemies.”

There’s zero evidence to back up any of Murphy’s hysteria, but the Democrats have never allowed the truth to get in the way of a good narrative. Think of the Charlottesville lie, for example, or the “suckers and losers” lie, or the COVID “bleach” lie. But beyond that, we seem to remember Barack Obama once saying that he had “a pen and a phone,” and that he could use them to give amnesty to hundreds of thousands of illegal aliens. More recently, there was Joe Biden buying votes by forgiving loans: “The Supreme Court tried to block me from relieving student loan debt. But they didn’t stop me. I’ve relieved student debt for over five million Americans. I’m going to keep going.”

Where were Chris Murphy and his concerned colleagues during these moments of constitutional crisis? Anyone? Where were they when Biden was gaffing off a ruling not from some cherry-picked partisan hack but the United States Supreme Court? Bueller? Bueller?

In any case, the Democrats are now judge-shopping to slap injunctions on the president’s every move. As Axios gleefully reports, every single one of Trump’s most consequential executive orders is now the subject of multiple lawsuits. As of Tuesday, Trump’s federal workforce EO had drawn 18 separate lawsuits, and his immigration EO had drawn 17, while his actions on birthright citizenship, “transgender” rights, DOGE’s access to financial records, and the reinstatement of the Schedule F “firing” clause had all drawn multiple lawsuits.

What we now have, then, is both Article I and Article III going after Article II. Less than a month into his term, Trump is being constitutionally sandwiched, and his agenda is being thwarted by what Thomas Jefferson presciently warned might be “a despotic branch.” But are these mid-level judicial stewards of the status quo correct? Is Trump really running afoul of the Constitution by enlisting the help of Elon Musk to improve government efficiency?

Vice President JD Vance — who went to the same law school, Yale, as Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh — doesn’t think so. In fact, all this came to a head when he weighed in with some commonsense wisdom about the separation of powers: “Judges,” he said, “aren’t allowed to control the executive’s legitimate power.”

Former federal prosecutor Andrew McCarthy agrees with Vance, calling this a usurpation. “But you didn’t need the vice president to tell you that,” he says. “The Court occasionally tells you that. During the Biden years, a number of red states sued to attempt to make Biden enforce immigration law, in part by reinstating [Trump’s] ‘Remain in Mexico’ policy. But a court has no power to force a foreign country to agree to something, let alone to direct the president to negotiate such an agreement.”

McCarthy continues: “In theory, the judiciary is the least powerful branch because it has only judgment, not the purse or the sword,” adding that in a constitutional republic, “most federal decisions are supposed to be made by politically accountable officials — members of Congress and the president.”

This isn’t a slam-dunk, though — far from it. Alan Charles Raul, who served as associate White House counsel under Ronald Reagan and OMB general counsel under Reagan and George H.W. Bush, penned an op-ed in The Washington Post that sees things entirely differently. If I were to put myself in Chief Justice John Roberts’s black robe, I’d probably be most persuaded by this part of Raul’s argument:

The radical reorganization now underway is not just foot-faulting over procedural lines; it is shattering the fundamental checks and balances of our constitutional order. The DOGE process, if that is what it is, mocks two basic tenets of our government: that we are a nation of laws, not men, and that it is Congress which controls spending and passes legislation. The president must faithfully execute Congress’s laws and manage the executive agencies consistent with the Constitution and lawmakers’ appropriations — not by any divine right or absolute power.

To Raul’s last point about the executive branch being the enforcement arm of the legislative branch, well, yeah. But an American president must also be able to exercise discretion over the branch he runs — or so it would seem.

Have you heard of the Impoundment Control Act of 1974? Neither had I until earlier this week, when I noted it in a piece about President Trump’s energetic OMB director, Russell Vought. Essentially, the law says that a president can’t spend less money than that which Congress has appropriated. Think about it: Even if an administration finds a way to deliver services at a lower cost, it has to spend every last dime of the taxpayers’ money. Richard Nixon signed the ICA into law a month before resigning the presidency. I have no idea what he was thinking, but it’s hard to imagine a nastier impediment to presidential discretion and government efficiency.

Utah Republican Senator Mike Lee would seem to agree. On Tuesday, he once again introduced legislation to repeal the ICA, calling it “a Watergate-era relic of misguided overreach.” As Lee explains: “For nearly two centuries, presidents exercised the authority to impound funds as a critical check on runaway spending. The ICA’s unconstitutional limitations on this power have contributed to a fiscal crisis. Repealing this law will restore the balance of power envisioned by our Constitution and empower the President to reject wasteful, unnecessary spending by administrations that voters resoundingly rejected.”

Lee and Vought are surely likeminded about this. It’ll be interesting to see what happens to Lee’s bill, and likewise to any action the OMB director might take to short-circuit or circumvent the ICA.

As it stands, though, Donald Trump is in a fix. Asked Tuesday about the latest ruling from an obstructionist judge, he said, “I always abide by the courts, and then I’ll have to appeal it. But … he’s slowed down momentum. And it gives crooked people more time to cover up the books.”

Thus, a handful of left-wing, lower-level judicial appointees can continue to hold the Trump agenda — and the 74 million American citizens who voted for it — hostage. It’s not all gloom and doom, though. Yesterday, a sensible judge lifted a lower court’s freeze on Trump’s federal employee buyout plan, which gives the go-ahead to 75,000 staffers who’ve agreed to the deal.

Is this a constitutional crisis? No — not yet anyway. As commentator Dave Rubin put it, “The Constitution is doing just fine, it’s the Democrats who are in crisis.”

Still, the Supreme Court had better keep its docket clear. The Democrats have shown us their game plan for the next four years, and we don’t expect Donald Trump and Elon Musk to just shrug their shoulders and move along.

https://patriotpost.us/articles/114474-executive-vs-judiciary-a-constitutional-crisis-2025-02-13