A wise friend pointed out to me that the wonder of a functioning representative democracy is that it allows the voters to have bloodless revolutions. Without pikes, guillotines, and gulags, at set intervals of two, four, or six years, voters have the ability to remove from power those politicians who are governing against their will. The question, of course, is what happens when an election takes place, but the people in power refuse to go? Or if they ostensibly go, but their minions remain, ensuring that their unpopular agenda continues?

That’s actually a question I hate to contemplate because if the people do not get their constitutional revolution through the ballot box, there’s the frightening possibility that they may seek other options. This is something all of us should devoutly hope never happens here.

Image created using AI.

However, during these first few months of Donald Trump’s second term, it seems as if many in the federal judiciary haven’t thought these questions through and believe that they can ignore the will of the people with impunity. This impunity comes in the form of issuing orders that block Trump at every turn. And while I recognize that the judiciary can and should function as a brake on an executive violating the constitution, it’s apparent that many judges are substituting their judgment for the executive’s. The Founders never contemplated this as a viable use of Article III powers. (See, e.g., Robert Yates writing in 1787.)

The most recent example of an unelected lower federal court substituting its judgment for Trump’s was yesterday's order from a three-judge panel at the Court of International Trade (“COIT”) in Manhattan. For those unfamiliar with this speciality court, Congress gave life to this court via laws from 1890, 1926, 1930, 1956, and 1980. It’s currently an Article III tribunal that’s dedicated to deciding questions about international trade and customs.

According to three of the COIT judges, Donald Trump’s tariffs all exceeded his authority, even though he claimed emergency powers to enact those tariffs:

The three-judge panel at the Court of International Trade in Manhattan assailed Trump’s actions against other countries across the globe as “contrary to law” – despite the president claiming emergency powers under the International Emergency Economic Powers Act allowed him to impose the controversial duties.

The court stated that Congress is typically responsible for issuing tariffs, not the president alone — and that Trump’s rationale for the exception to the rule didn’t meet the emergency act threshold to act unilaterally.  

“The President’s assertion of tariff-making authority in the instant case, unbounded as it is by any limitation in duration or scope, exceeds any tariff authority delegated to the President under IEEPA,” the judges determined.

“The Worldwide and Retaliatory tariffs are thus ultra vires and contrary to law.”

The problem with this holding is that Congress didn’t give the courts any authority to make that finding. In 1976, Congress passed, and President Ford signed, the National Emergencies Act. The Act declares that all emergencies a president might declare after the Act’s passage can be terminated in only two ways: By Congress, through a continuing resolution, or by the president himself.

[UPDATE: The decision was also guided by The International Emergency Economic Powers Act, which was passed in 1977. This Act gives the president vast powers that only the president and Congress can terminate. There is no mention of an unelected court substituting its decision-making for the president’s.]

There is no role in this statutory scheme for the judiciary. In other words, if anyone was acting “ultra vires” (i.e., in a way exceeding one’s legal power), it was the COIT judges.

This is the kind of thing that foolishly negates the will of the people, who elected Donald Trump, as well as the will of Congress, whose members the people also elected.

However, it turns out that not all judges are being quite so foolish. The Trump administration immediately appealed the ruling, and the appellate court walked it back—at least for now:

A full 11-judge panel on the US Court of Appeals for the Federal Circuit stayed the order by the Manhattan-based Court of International Trade while a White House appeal is heard.

It was the right thing to do, although weak sauce, because the appellate court still kept the matter alive. As noted above, the courts have no say in the matter, and the appellate court should have dismissed the case immediately as beyond their jurisdiction. The same article linked above quoted Treasury Secretary Scott Bessent, who got it right:

“It seems highly inappropriate for the judiciary to weigh in here, when the Senate had the opportunity to override the president and didn’t,” Bessent told Fox News host Bret Baier, during an interview on “Special Report.”

“In terms of separation of powers, the Senate has chosen not to exercise their powers, and the president absolutely has the right to set the trade agenda for the US,” he added, arguing that “anything the courts do to get in the way harms the American people in terms of trade and in terms of tariff revenue” – the latter of which he described as “substantial.”

When Moses and the Israelites were in the desert, the people turned to Moses to resolve their disputes, a job that was impossible for him to maintain. His father-in-law, Jethro, offered him some wise advice: “Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness...”

Leftist judges are not able, they do not fear God, truth is a construct, and, while it’s very rare for them to be guilty of financial gain while on the court, they covet power without regard to the people’s will. This cannot end well, and the appellate court at least showed some wisdom by taking minimal steps to stop this undemocratic behavior.

UPDATE: Here’s something I discovered only after publishing this essay: On May 15, two weeks before COIT issued its overreaching order, Debra Heine had already written that a source told her the fix was in to end the tariffs:

The fix appears to be in for two court cases against President Donald Trump’s tariffs, according to a very knowledgeable source.

Last month, five domestic businesses filed a lawsuit in a little known trade court in New York challenging Trump’s tariffs, arguing they have to rely on imported goods that are not reasonably available to them in the U.S.

In his April 2 executive order imposing a set of reciprocal tariffs, Trump declared a national emergency, calling trade deficits a threat to the nation’s national security and economy.

[snip]

The chief judge of the United States Court of International Trade is Mark A Barnett, who joined the court in 2013 after a nomination from President Barack Obama. He became chief judge on April 6, 2021.

According to the well-placed source, rather than drawing the panel at random, Chief Judge Barnett “fixed” the outcome by selecting three judges whom he knew would “overrule the president” and render his tariffs “null and void.”

The source told American Greatness he was given this information by “very reliable people” who are “very close to the court.”

None of what’s happening is organic. The bloodless revolution of the November 2024 election is being undermined in dangerous and deliberate ways.