President Donald Trump’s first 60 days in office have shown remarkable action, including curbing the teaching of critical race theory, protecting our borders, DOGEifying excess federal expenditures, and (unthinkably) requiring federal employees to actually show up for work.
The left, out of power in the legislative and executive branches, has turned to the courts, as is their right. The role of the courts is to enforce the Constitution, and if the president has overstepped his constitutional limits, the courts should reign him in, as they did numerous times with President Biden. Here are a few examples of federal courts slowing down the Trump agenda:
- Judge Adam Abelson of Maryland granted a preliminary injunction blocking parts of Trump’s executive order banning diversity, equity and inclusion programs, holding that the order is excessively vague. However, the 4th U.S. Circuit Court of Appeals lifted the injunction.
- Judge Amir Ali of the District of Columbia enjoined Trump from dismantling the U.S. Agency for International Development.
- Judge Loren AliKhan (also D.C.) enjoined Trump’s attempts to freeze federal grants and loans.
- Judge John Bates (D.C.) ordered health agencies to restore webpages about transgender health care.
- Judge Deborah Boardman of Maryland enjoined Trump’s executive order ending birthright citizenship.
- Judge James Boasberg (D.C.) ruled against Trump’s deportation of illegal aliens under the Alien Enemies Act of 1798 and ordered flights that had already left to be turned around.
- Judge Theodore Cuang of Maryland blocked immigration officials from entering houses of worship to arrest illegal aliens.
And the list goes on and on.
The president and his allies have struck back with calls to impeach activist federal judges. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Chief Justice John Roberts, a moderate conservative, responded. “The normal appellate review process exists for that purpose.”
Who’s right? The Framers of our Constitution decided that federal judges should be somewhat independent so they would decide cases based on the facts, the law, and the Constitution rather than caving to political pressure so they could be reelected or reappointed. As Gouverneur Morris, the delegate who wrote the first draft of the Constitution, said, “Those who are charged with the important duties of administering justice, should, if possible, depend only on God.” (The problem is, many don’t depend on God, and some seem to think they are gods.)
So they provided in Article III, Sec.1, that judges will serve “during good behavior,” that is, they will not be subject to reelection or reappointment. Rather, they would continue to hold office so long as they behaved themselves. Congress could check the judges’ power by refusing to confirm them, by limiting their appellate jurisdiction pursuant to Article III, Sec. 2, by revising statutes that the court has misinterpreted, or by refusing to approve the courts’ budgets.
Congress can also create new judicial districts and circuits and add justices to the Supreme Court. In extreme circumstances, federal judges can be impeached and removed; in our history 15 have been impeached and eight removed for various offenses, including John Pickering for mental instability and intoxication on the bench (1795), Harry Claiborne for income tax evasion (1986), Alcee Hastings for perjury and conspiring to solicit a bribe (1989), and Thomas Porteous for accepting bribes and perjury (2010). No federal judge has ever been removed solely for making unpopular decisions.
As an aside, it may be time to reconsider the unlimited tenure of federal judges, perhaps through a constitutional amendment providing that federal judges and justices serve 10-year terms. The problem is, as a judge’s term draws to a close, he may test the political winds and make decisions ensuring that the current president reappoints him. So the amendment should also provide that after their 10-year term expires, the judge will be ineligible for any other federal position for at least five years thereafter. I’m not necessarily advocating this amendment, but it is worthy of discussion.
Is impeachment the proper remedy for judges who have issued orders halting the president’s programs? I have reservations about it, for three reasons:
1. It may not be constitutional
The Constitution provides for impeachment and removal, but only for cause. Article II, Sec. 4, provides that federal officers, including federal judges, may be impeached and removed for “Treason, Bribery, or other high Crimes and Misdemeanors.” Writing a decision I don’t like is not treason or bribery, while “other high Crimes and Misdemeanors” has never been clearly defined. Congressman (later President) Gerald Ford (R-Mich) once said that impeachable offenses mean “whatever a majority of the House of Representatives considers them to be at a given moment in history.” This may be the way it works, but this type of reasoning is just as dangerous as the loose construction we complain about with activist judges.
Federal judges are held to an additional standard that doesn’t apply to other federal officials. Article III, Sec. 1, says judges “shall hold their Offices during good Behavior,” but that’s another undefined term. To say it is the opposite of bad behavior is correct but useless. The Framers imported the phrase from English law, and delegate James Wilson said it was to insulate judges from the political process and to protect them from “every gust of factions which might prevail in the two branches of our [government.]”
“[J]ust as the Good Behavior Clause reminds the other branches that the judiciary is truly independent, it also reminds judges that life tenure is not a license for the wanton or the corrupt,” law professor Jonathan Turley wrote. “It is in this sense both a shield and a sword – an affirmation of judicial independence and a reservation for judicial removal.”
The Senate advises and consents to the nomination of federal judges. Activist decisions might be a good reason for senators to vote against confirming a judge for a higher position. But do activist decisions constitute a high crime, a misdemeanor, or bad behavior? I doubt it.
In 1832, President Andrew Jackson vetoed a bill establishing a national bank because he thought it was unconstitutional, even though the Supreme Court had upheld the bank’s constitutionality in McCulloch v. Maryland (1819). “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution,” he declared. “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”
So long as a judge issues his opinion in good faith, no matter how ridiculous I think his opinion is, I doubt that it constitutes “bad behavior.”
2) It is a waste of time and money
Public officials, including federal judges, may be impeached by a simple majority of the House of Representatives, but impeachment does not constitute removal. Removal from office must be done by two-thirds of the Senate. Several presidents, including Andrew Johnson, Bill Clinton, and Donald Trump, were impeached by a majority of the House, but the vote in the Senate fell short of the two-thirds necessary for removal.
Republicans currently hold a 218-215 majority in the House and a 53-47 majority in the Senate. It is possible, though unlikely, that House Republicans could muster a majority to impeach a liberal activist judge. But persuading a two-thirds majority (67) in the Senate to remove him just isn’t going to happen. The time and money that would be wasted on an impeachment effort could be better spent on other efforts, such as sound constitutional education.
3) It sets a dangerous precedent
The impeachment power is a two-edged sword and using it for ideological purposes would create a thirst for vengeance. If today a conservative Congress uses the impeachment power against liberals like Justices Kagan and Sotomayor, tomorrow a liberal Congress will use the impeachment power against conservatives like Justices Thomas and Alito.
I’ve been a constitutional law professor for over 40 years, and I have always taught that the Constitution should be interpreted strictly as intended by its Framers. As Senior Counsel for the Foundation for Moral Law, I’ve written countless amicus briefs decrying judicial activism and the Darwinist “living Constitution” approach to jurisprudence. But should judges be removed for following their convictions, even if we think their convictions are wrong?
Sometimes, in my columns, I ask questions rather than give answers, so I’m not necessarily saying we should never impeach a liberal activist judge. I urge only that we proceed with caution and first consider other alternatives. As Hosea reminds us, those who sow the wind will reap the whirlwind (8:7).
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga (woodlandpca.edu). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News.
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