Federal court judges left 'twisting in frustration': ex-DOJ prosecutor

During President Donald Trump's first year back in the White House, lower federal courts have been a frequent source of frustration for his administration. Many of his executive orders have been challenged by lower federal court judges, much to the chagrin of Vice President JD Vance, U.S. Attorney General Pam Bondi, Homeland Security Secretary Kristi Noem and other Trump loyalists who claim that the judges are failing to respect the powers the U.S. Constitution gives the federal government's executive branch.

But Trump's critics, including conservative New York Times columnist David French, are countering that the government's judicial and legislative branches are supposed to play a prominent role in the United States' system of checks and balances.

Another Trump critic is Kimberly Wehle, a law professor and former federal prosecutor for the U.S. Department of Justice (DOJ).

In an article published by the conservative website The Bulwark on January 30, Wehle argues that between the Trump Administration, a GOP-controlled Congress and the U.S. Supreme Court's 6-3 GOP-appointed supermajority, lower federal court judges are being left "twisting in frustration."

Wehle points to Trump's immigration and deportation policies as an example.

"It was just last year — although it feels like eons ago — that Trump sent scores of men, many of them innocent of any wrongdoing, to CECOT, the Salvadoran prison built to punish terrorists and gangsters," Wehle explains. "He sent them there without due process on the hunch that they were part of a Venezuelan gang called Tren de Aragua. Granting one of Trump's 'emergency' petitions for immediate review of a lower federal court order telling him to hold off until the men could get their constitutional due process, the Supreme Court took two major swipes at the lower courts' ability to hold Trump accountable to the rule of law."

Wehle continues, "First, the majority ignored the disturbing fact that Trump had authorized the planes to take off after the lower court had already ordered them grounded. The justices didn't seem to care…. Second was the majority's pretzel-twisting with respect to the procedural technicalities of how the individuals framed their lawsuits."

According to Wehle, the High Court's 6-3 supermajority, Wehle laments, has "essentially ruled that lower federal courts can only issue orders binding particular plaintiffs in particular jurisdictions, leaving Trump free to violate the law everywhere else."

"So where does this leave lower federal court judges?," Wehle argues. "Twisting in frustration as Trump ignores them or circumvents them, knowing that the justices in the majority won't back them up. It’s a profound imbalance in our constitutional system —one that Congress could rectify, if a responsible and attentive new Congress ever were to get down to the business of actually, you know, governing."

Kimberly Wehle's full article for The Bulwark is available at this link.

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