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Activist Courts Are Seizing The President’s Powers Just Because He’s Trump


Imagine if President Trump ordered troops to defend the southern border, but a federal judge suspended his orders so immigration activists could question his motives. Attorney General Jeff Sessions’ recent presentation before the Heritage Foundation suggests this scenario is not far-fetched — he said federal judges are breaking through constitutional guardrails with increasing frequency to encroach on powers of the executive branch.

What Sessions called “judicial encroachment” goes beyond activist judges applying their bias, instead of the law, when deciding cases. We are seeing federal judges repeatedly issue nationwide injunctions halting government operations that the judges deem politically incorrect.

Sessions noted that, in the first 175 years of our republic, not a single federal judge issued a national injunction. Since 2017, however, 27 district courts have issued injunctions shutting down presidential directives. In response to lawsuits from critics of Trump, judges repeatedly have suspended executive policies enacted under Article II of the Constitution.

Sessions mentioned several examples, including lawsuits LGBT activists have filed to stop Trump from revising Obama-era policies regarding transgender people in the military. Gender dysphoria, a psychological condition that involves confusion about one’s sex, previously disqualified a person from military service.

Lawyers for groups like the Human Rights Campaign and LAMDA Legal have demanded intrusive depositions and document searches to confirm Trump’s ulterior motives for changing his predecessor’s policies. Trump’s directives should be declared unconstitutional, they say, because he was motivated by “animus” against transgender personnel, not concerns about national defense.

Buying into the plaintiffs’ conspiracy theory, federal judges in Washington D.C., Baltimore, Seattle, and California issued nationwide injunctions ordering that Obama-era transgender policies be reinstated. The four “Supreme Judicial Commanders of the Military” assumed control, even though the Constitution does not authorize federal judges to run the armed forces.

These encroachments on powers of the commander-in-chief were based not on facts, but on mind-reading speculations about presidential motives, described as “hostility” and “animus” against transgender people. Therefore, plaintiffs argue, federal judges should declare Trump’s transgender policy revisions unconstitutional.

During the discovery process, lawyers for LGBT plaintiffs demanded privileged White House communications and pre-decision Defense Department documents. The same lawyers are trying to drag my organization, the Center for Military Readiness (CMR), into two of their four lawsuits against Trump.

Activist lawyers slapped subpoenas on CMR and several other organizations and individuals as “non-parties” in their lawsuits. An especially intrusive subpoena, arising out of the Seattle Karnoski v. Trump case, demands a search of CMR emails and communications with high-level administration and Republican Party officials going back to June 16, 2015 — the day Trump announced his presidential campaign.

If a federal court orders compliance, CMR will have to spend thousands of dollars on a professional IT search of our emails, followed by untold hours redacting personal information. Never mind that the Seattle judge already decided the administration possesses relevant information that the lawsuit plaintiffs seek, and that “There is no suggestion that this evidence can be obtained from other sources.”

More importantly, court-ordered compliance with the intrusive subpoenas would chill CMR’s First Amendment rights to independently report on and analyze military and social policies, and to receive first-hand information from sources who count on confidentiality.

Trump has every right to review and change his predecessor’s policies, especially when his decisions strengthen our military. Of the three co-equal branches of government, the judiciary is least qualified to make military policy. District judges nevertheless have applied unprecedented legal standards of review in the military transgender cases, ordering “heightened” or “strict” scrutiny going beyond the “rational basis” standard that courts historically have applied in similar military personnel cases.

In what may be the most ambitious gaslighting campaign in history, the Obama Defense Department enforced the belief that bureaucratic changes in a person’s “gender marker” certify a person’s switch from male to female or vice versa. Gender-determining DNA chromosomes remain unchanged, but some officials adopted without question the vocabulary and unscientific assumptions of LGBT ideologues.

District judges ordered the Trump administration to reinstate controversial Obama-era mandates, acting before completion of the extensive study that Defense Secretary James Mattis conducted. The Pentagon’s expert panel report released in March cited recent Military Health System data showing high medical costs, non-deployability, and elevated risks of suicide for gender dysphoric troops even after hormone and surgical treatments for gender dysphoria.

Judicial encroachment has become a pattern. When Trump first decided to ban travel from countries that have poor immigration vetting procedures, several federal judges issued nationwide injunctions suspending Trump’s directives. (The Supreme Court upheld a later version of Trump’s travel ban in 2018.) Another federal judge halted Trump’s attempt to terminate the Deferred Action for Childhood Arrivals program — a controversial immigration policy that Obama imposed by executive order.

In a current case, a coalition of interest groups and attorneys general sued to challenge the administration’s plans to reinstate a question regarding citizenship in the 2020 national census. An overreaching judge allowed plaintiffs to depose Commerce Secretary Wilbur Ross to explore his motives for restoring the citizenship question, but the Supreme Court suspended the Ross deposition, pending a full-court review.

Sessions spotlighted a major problem, and Congress is considering legislation to fix it. In the meantime, the Supreme Court should seize opportunities to restore the constitutional order.