CNN
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Federal judges hearing Trump administration litigation have increasingly gone beyond the case at hand to reflect on potential threats to democracy or offer dramatic assertions about the state of America.
Democratic and Republican appointees alike, these judges are giving voice to a simmering concern in judicial circles about the erosion of constitutional norms during the first weeks of the second Trump administration.
But in doing so, they are breaking with a culture of judicial restraint and defying the current reluctance in many quarters to cross President Donald Trump.
These judicial voices are rare, to be sure, but they are growing in number.
“An American President is not a king,” a federal judge in Washington, DC, slipped into an opinion on late Thursday.
Earlier Thursday, a judge in Rhode Island hearing a dispute over a government-wide freeze on funding invoked America’s founding “after enduring an eight-year war against a monarch’s cruel reign” and added a cautionary footnote: “This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civil behavior. … Or, we may ignore these things at our peril.”
A judge in Seattle declared in a separate case, “It has become ever-more apparent that to our president, the rule of law is but an impediment to his policy goals.”
Current and retired federal judges told CNN they are watching the emerging pattern with trepidation. Some are heartened by jurists raising their voices, but others believe judges should be particularly restrained in today’s polarized atmosphere.
Supreme Court justices, for their part, have avoided broader statements about Trump’s initiatives or the way he is wielding power.
And Justice Samuel Alito, a conservative who has consistently sided with the Trump administration over the years, fired a warning of sorts to federal district court judges last week.
Alito, joined by three other justices on the right wing, declared in a dissenting opinion that US District Judge Amir Ali, who’d temporarily blocked Trump’s freeze on billions in foreign aid, had engaged in “an act of judicial hubris.” Alito said he was “stunned” that the majority had let the judge’s order stand.
More than 100 cases have been filed against Trump’s executive orders and policies since he took office on January 20, and in many cases, judges are moving slowly and hewing to the discrete issues at hand.
It is still difficult to know how much of a check the third branch will be on the executive; the Republican-led Congress has demonstrated the legislative branch’s enthusiasm for Trump’s agenda.
These judicial voices of distress — at the first level of the three-tier federal bench — may indicate increased scrutiny for Trump’s policies.
Or they might, more truly, reveal developing friction within the federal bench over how to respond to Trump’s unparalleled effort to expand executive power in modern times.
Federal judges, appointed for life, follow canons of impartiality. A real dilemma exists among those who wear the robe over how freely to speak their mind.
Another factor is how much fire they might provoke. Trump’s allies already have been publicly calling out individual judges who have ruled against the administration’s moves to overhaul the government.
“High-ranking government officials (appointed and elected) have made repeated calls for the impeachment of judges who issue opinions with which the government does not agree,” American Bar Association President William Bay said in a statement last week. “There have been calls to impeach ‘corrupt judges’ with no effort to produce evidence of the so called ‘corruption.’”
Bay added that such acts of intimidation “are designed to cow our country’s judges,” and he called on fellow lawyers to be more vocal. “Who will speak for the judiciary? Who will protect our system of justice? If we don’t speak now, when will we speak?”
US District Judge John Coughenour, of Seattle, hearing a challenge to Trump’s executive order ending birthright citizenship, was one of the first judges to level a broader admonition.
When he indefinitely blocked the executive order, Coughenour, an appointee of President Ronald Reagan, maintained Trump was playing “policy games.”
“The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain,” Coughenour said in early February as he announced his order from the bench. “In this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.”
Around the same time, a district court judge in Maryland similarly blocked Trump’s attempt to undermine birthright citizenship, but without the scalding criticism of Trump.
Judge Deborah Boardman, an appointee of President Joe Biden, wrote that Trump’s directive “flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our 250-year history of citizenship by birth.”
Judge William Alsup in San Francisco, reviewing a challenge to the Office of Personal Management and mass firings of probationary employees, drew national notice for his alarm at the administration’s approach: “How could so much of the workforce be amputated suddenly overnight?”
“It’s so irregular and so widespread and so aberrant in the history of our country,” he added.
Alsup, an appointee of Bill Clinton, referred to an employee who’d received a “glowing” report five days before termination for poor performance.
“That’s just not right in our country, is it, that we run our agencies with lies like that and stain somebody’s record for the rest of their life? Who is going to want to work in a government that would do that to them?”
In one of the most expansive reflections on the Trump litigation, US District Judge John McConnell in Providence, Rhode Island, looked to founding history as he said a Trump freeze on congressionally appropriated funds to states for social services “fundamentally undermines the distinct constitutional roles of each branch of government.”
“We begin by restating the American government principles learned during critical civics education lessons in our youth,” McConnell, an appointee of Barack Obama, wrote in the case brought by nearly two dozen states seeking to ensure disbursement of appropriated grants, loans and other federal assistance.
“Our founders, after enduring an eight-year war against a monarch’s cruel reign from an ocean away, understood too well the importance of a more balanced approach to governance,” he wrote. “They constructed three co-equal branches of government, each tasked with their own unique duties, but with responsibilities over the other branches as a check in order to ensure that no branch overstepped their powers, upsetting the balance of the fledgling constitutional republic.”
McConnell said the Trump administration had “put itself above Congress” as it blocked the appropriated funds, adding that the move would significantly disrupt critical health, education and other public assistance programs.
In another remarkable gesture, McConnell lifted a caution from an earlier case in his district: “This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our … peril.”
McConnell’s Thursday rejection of the administration’s attempt to halt appropriated funds followed a similar order, on February 25, by US District Judge Loren AliKhan, a Biden appointee, in Washington, DC.
In her order blocking the administration’s pause on the disbursement of financial assistance, she referred to the “nationwide chaos and paralysis” the administration had generated, but she declined to offer a larger assessment of this moment in history.
US District Judge Beryl Howell, also in Washington, DC, did not hold back Thursday night as she declared Trump’s firing of Gwynne Wilcox from the National Labor Relations Board, an “illegal act.”
Trump has tried to remove several officials at independent agencies.
“The President seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme,” Howell, an Obama appointee, wrote.
And she insisted, in one of the more attention-getting lines of recent litigation, “An American President is not a king — not even an ‘elected’ one — and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here.”
CNN’s Devan Cole contributed to this report.
