Trump's Attack on the Courts Channels the Worst of Theodore Roosevelt

An unconstitutional act is still unconstitutional even if lots of people support it.

Theodore Roosevelt hated the idea of unelected judges stopping him and his allies in the Progressive movement from wielding government power as they saw fit. So Roosevelt advocated stripping the courts of their independence by subjecting both judges and judicial decisions to recall by popular vote.

"When a judge decides a constitutional question," Roosevelt argued in 1912, "the people should have the right to recall that decision if they think it is wrong." It must be "made much easier than it now is to get rid, not merely of a bad judge," Roosevelt declared, but of any judge. As far as Roosevelt was concerned, the Progressive movement "cannot surrender the right of ultimate control to a judge."

Sound familiar?

Donald Trump's second presidential term is barely 3 months old, and a Rooseveltian offensive against the courts is already in full swing. Indeed, the Trump administration began attacking the independence of the judiciary almost as soon as the administration began appearing in federal court. "When judges egregiously undermine the democratic will of the people," declared Elon Musk, the head of Trump's Department of Government Efficiency, "they must be fired or democracy dies!" "Radical left-wing judges are egregiously trying to stop President Trump from using his core constitutional powers as head of the Executive Branch and Commander-in-Chief," claimed White House press secretary Karoline Leavitt. "They MUST be reined in."

Trump at least avoided using the overtaxed word egregiously, but he did call for the impeachment of judges whose decisions he does not like. "HE DIDN'T WIN ANYTHING!" Trump fumed after Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued the order blocking Trump's deportation flights. "I'm just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges' I am forced to appear before, should be IMPEACHED!!!"

There are many excellent reasons why Boasberg should not be impeached, including the fact that Boasberg's judgment against Trump is both persuasive and well-grounded in the law. Trump may claim that he has the unilateral authority to deport alleged criminal aliens without due process. But the administration's arguments in support of that sweeping claim fail to pass muster on multiple counts.

Under the Alien Enemies Act of 1798, "whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government," the president may direct the "removal" of "all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized."

Trump invoked that law in his March 15 proclamation ordering the "immediate apprehension, detention, and removal" of alleged members of the street gang Tren de Aragua, who are allegedly "conducting irregular warfare and undertaking hostile actions against the United States…in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela."

Except there is no "declared war" between the United States and Venezuela. And while Trump and his allies have certainly promoted the idea of a rhetorical "invasion" of the U.S. by unlawfully present aliens, that is merely a talking point. Such rhetoric does not alter the plain text of the Alien Enemies Act, which refers to military invasions by a "foreign nation or government." As James Madison explained in his "Report on the Alien and Sedition Acts," published on January 7, 1800, "invasion is an operation of war." The alleged crimes of the alleged members of a nonstate street gang do not magically become "an operation of war" just because the president says so in the hopes of unlocking extra powers.

Speaking of James Madison, he said that the role of the judiciary was to stand as "an impenetrable bulwark against every assumption of power in the legislative or executive." That description is probably as good of an explanation as any for why Trump, just like Roosevelt before him, is so eager to stop the courts from doing their job.

It is also worth noting exactly what sort of judicial rulings originally brought about Roosevelt's ire. The Rough Rider was particularly enraged by Lochner v. New York, the 1905 case in which the Supreme Court struck down a provision of New York's Bakeshop Act because it violated the right of economic liberty secured by the 14th Amendment. "The bakeshop case," Roosevelt seethed, had "usurped" the "deliberate judgment of the people on social and economic government policies."

Lochner did invalidate one part of a popularly enacted law. But as Alexander Hamilton noted in Federalist No. 78, "whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." In other words, the popularity of a statute—or the popularity of an executive order—has nothing to do with its constitutionality. An unconstitutional act is still unconstitutional even if lots of people support it.

When Roosevelt attacked the courts, he did so from the political left. Trump is now doing it from the political right. Yet their respective attacks share much in common. It is a timely reminder that the independence of the judiciary remains of paramount importance no matter which political faction happens to occupy the halls of government at any given time.