President Trump’s success in appointing conservatives throughout the federal judiciary might bedevil President-elect Joe Biden. This would, in many cases, be a very good thing.
Hostile liberal judges repeatedly gave Trump fits when he tried implementing executive orders or other controversial administrative actions. Often, they were either wrong or hypocritical (or both) in doing so. Now, Biden may face the same difficulties.
Excellent. In principle, governing largely by executive action is not desirable. When former President Barack Obama said, “I’ve got a pen, and I’ve got a phone” with which he could bypass Congress, he was asserting presidential authority beyond the original conception of the office. He did so on issues large and small, almost always giving the central government more command-and-control of private-sector activities. In the most famous example, his administration unilaterally changed immigration policy, without congressional assent, by implementing the Deferred Action for Childhood Arrivals policy. In issuing far more “executive memoranda” than prior presidents, Obama also made major moves hampering religious liberty and bullying colleges into leftist social policies, among others, through administrative action alone.
The courts did little to stop Obama, even when his actions arguably hindered constitutional rights. Yet when Trump tried to undo by executive action what Obama had done by executive action, individual district judges again and again issued sweeping, often nationwide, orders to block him. Never mind that it’s illogical to say Trump could not undo with the stroke of a pen what Obama had done with the stroke of a pen: Activist judges care not for consistency or procedural niceties.
Note that in many of these cases, Trump was not creating new policy apart from Congress but merely returning policy to where it had been before Obama abused his power. In the end, though, Trump’s logic prevailed: Appeals courts often sided with Trump, who finally succeeded on a number of fronts in restoring the status quo ante. For example, the Supreme Court ruled that he did have the authority to overturn an Obama rule, found nowhere in the statutory text, that had required even faith-based employers to provide free birth-control coverage to their workers, even though that coverage could be made available elsewhere. The essential point isn’t whether Trump or Obama was right on policy. The key consideration is who gets to make policy in the first place. The constitutional design assigns Congress with making policy and the executive with implementing it.
Nonetheless, reports are rampant that Biden wants to continue the executive action game. He has vowed to have the United States “rejoin” the Paris accord on climate change — dubiously treating it as something other than a treaty that must be ratified by the Senate. He plans an executive fiat to restore the aforementioned DACA immigration policy. His allies also are urging him to take a host of other executive or administrative actions affecting policies on health, housing, education, immigration, and abortion. Naturally, those allies include many in the establishment media who are too impatient to wait for Congress to exercise its function of representing the constituents who elect it and hashing out legislation rooted in compromise and consensus.
Here’s where Trump’s judicial appointees come in. His focus, and that of Senate Majority Leader Mitch McConnell, on securing confirmation of judicial nominees has resulted in 234 such confirmations, significantly outstripping the four-year records of the preceding five presidents. Importantly, 54 of those 234 have been to federal appeals courts. (None of the previous five presidents saw more than 41 of those confirmed in four years.) And, of course, Trump’s three impressive Supreme Court nominees create a more solidly conservative lineup there, as well.
The Trump nominees, being conservative, will be more likely to strictly enforce constitutional delineations of governing authority. It’s not that they will decide to oppose some of Biden’s executive power plays based on their own policy choices but that where Biden is usurping legislative authority, they may rein him in. Likewise, where essential freedoms such as religious liberty are involved, Trump’s judges probably will not be likely to look the other way.
In sum, the proper role of each branch of government might be reestablished. This may frustrate Biden and his more leftist supporters. It would be a salutary frustration. It would restore the deliberation and representation aspects of what is supposed to be not an elected kingship but a deliberative, representative republic.
