On the rule of law

The MAGA movement is attacking the American judiciary. The evidence is everywhere.

Let’s begin with President Trump. On his Truth Social account, in post after post he has ranted against the judges who’ve ruled against his policies. He has said that judges who rule against him should be impeached. He’s called them “lunatics,” and on Sunday he posted an article by the far-right outlet Gateway Pundit that made the case that federal judges were guilty of “sedition and treason.”

It’s tempting to ignore Trump’s rants as examples of an undisciplined man merely venting, but if there is one thing we know from the opening months of his second term, it’s that his powerful supporters are taking all of Trump’s words very seriously indeed.

On Tuesday, for example, Mike Johnson, the speaker of the House, floated the idea of enacting legislation that would eliminate judicial districts or defund the courts in response to rulings against the Trump administration.

“We do have the authority over the federal courts, as you know. We can eliminate an entire district court. We have power of funding over the courts and all these other things,” he said. “But desperate times call for desperate measures, and Congress is going to act.”

So this is when Congress rises from its slumber? To make sure that Trump is protected from prompt judicial review? This is a telling indication that the Republican Congress exists only to please Trump.

Elon Musk, Trump’s virtual co-president, has called the rulings against the Trump administration a “judicial coup,” has demanded the impeachment of federal judges, and has said the Trump administration should fight against “activist” members of the judiciary.

The list goes on. Stephen Miller posted on social media last week, “Under what theory of the constitution does a single marxist judge in San Francisco have the same executive power as the Commander-in-Chief elected by the whole nation to lead the executive branch?” He called the rulings against Trump “naked judicial tyranny.”

In February, JD Vance posted, “If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”

And lest we think this is all just words, Republican lawmakers have now filed articles of impeachment against several federal judges in response to their rulings.

Trumpists are having a temper tantrum, but it’s a mistake to treat their arguments against the federal judiciary as merely a fit. The second Trump term is substantially different from Trump’s first term in a key respect — the people around him have developed actual legal theories and policy ideas to buttress, direct and channel Trump’s impulses.

And these legal theories and policy ideas make Trump’s second term far more dangerous to the Constitution than his first.

In a nutshell, here’s the Trumpist argument: As Miller put it in a press briefing last month, “The whole will of democracy is imbued into the elected president.” He is the only elected official who represents the whole of the American people, and he embodies the people’s general will. Every member of the House has his or her small, defined constituency. Every member of the Senate is confined to representing a single state. The president, by contrast, is elected by the whole of America.

As a result, Miller argued, he is the best expression of American popular will, and Article II of the Constitution, which vests “the executive power” in the president, gives the president the power to hire staff to “impose that democratic will onto the government.”

Under this theory, the president even has the power to issue definitive legal interpretations that control executive branch functions. As he said in an executive order in February, “The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.”

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