Episode 610 Show Notes- Judges Gone Rogue: How Judicial Activism Undermines the Constitution

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Episode Description

The judiciary was meant to interpret laws, not rewrite them and not enforce them. Yet judges are going beyond their constitutional role by undermining both the executive branch and Congress’s legislative authority by engaging in judicial activism. In this episode of The P.A.S. Report Podcast, Professor Nick Giordano exposes how left-wing judges are making unconstitutional rulings that defy executive authority, particularly in cases involving President Trump’s efforts to remove federal employees and enforce immigration laws. These judges, many with histories of Democrat donations and political activism, are not ruling based on the Constitution but rather their personal ideologies. As Trump calls for their impeachment, we examine why this is not the right solution and why Congress must find a way to hold these judges accountable. Judicial activism erodes the foundations of our republic, and if left unchecked, it will only get worse. Tune in as Professor Giordano breaks down the most egregious cases, the dangers of a politicized judiciary, and why judicial restraint is essential to maintain a constitutional balance of power.

Episode Highlights:

• Judicial Overreach Exposed – How activist judges are blocking Trump’s executive actions and undermining the rule of law.
• The Dangers of Politicized Courts – Why judicial activism is driven by ideology and threatens the separation of powers.
• Fixing the Problem – Why impeachment isn’t the answer, but censure and reforms are necessary to restore judicial integrity.

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Show Notes- Judges Gone Rogue: How Judicial Activism Undermines the Constitution

Timestamps

00:24 Introduction to Judicial Activism
08:30 Judicial Overreach in Executive Authority
13:57 Is This Judicial Activism
16:08 Judge Tries to Block Trump’s DEI Spending Freeze
19:45 Case Studies of Judicial Activism as Judge Blocks Deportations
24:51 Judge Blocks President From Terminating Probationary Employees
29:48 The Future of Judicial Restraint

 

Welcome to The P.A.S. Report Podcast

[Auto-Generated Transcript]

Hello everyone, and welcome to The P.A.S. Report Podcast. I’m your host, Professor Nick Giordano. Be sure to follow and subscribe to the podcast so you never miss an episode, and head over to pasreport.com to sign up for my newsletter, read the show notes, and share the episode with family and friends. I loved reading the feedback regarding the America’s Founding Series that I released last week, and I am glad that so many of you enjoyed the episode. Remember, this is going to be a weekly release, and I have a great episode for Thursday to talk about another forgotten patriot, but you will need to tune in to find out who it is so make sure you subscribe and follow the podcast and keep the feedback coming.

Getting to today, we’re diving into one of the biggest threats facing our constitutional republic, and that’s judicial activism. There are judges on the bench who have gone well beyond their intended role. It’s not like they are simply interpreting the law. Instead, they are actively trying to shape policy. Rather than follow the Constitution, their rulings are based on their personal political ideologies, which undermines both executive authority and congressional power.

This is a major problem because our system of government was carefully designed with a delicate balance of power – one that is being thrown off course by these activist judges, and if we don’t confront this growing issue, the judiciary will continue to erode the constitutional authority of the elected branches. There are some judge who prefer turning our system of self-governance into one ruled by judicial fiat. That is not their role, and if that’s what they want to do, they should retire from the bench and run for a congressional seat or run for the presidency.

Defining Judicial Activism vs. Judicial Restraint:

So, what exactly is judicial activism? For those who are unaware, in simple terms, judicial activism is when judges go beyond interpreting the law and instead create new policies through their rulings.

This happens when courts override legislative intent, impose new legal standards not found in existing law, or block a President’s ability to execute the law as written. When it comes to executive authority, judicial activism occurs when courts interfere with a President’s ability to enforce immigration laws, remove executive branch employees, or implement national security policies. These actions fall squarely within the President’s constitutional powers.

This often happens when judges impose their own political views rather than following the text of the law or the Constitution. Judicial restraint, on the other hand, means sticking to the original intent of the law and respecting the roles of the executive and legislative branches. Judges should interpret the law, not make it.

The Importance of Separation of Powers:

To understand why this is so dangerous, we have to go back to one of the foundational principles of our republic, the Separation of Powers. The Framers of the Constitution deliberately divided power among three branches of government to prevent any one branch from becoming too powerful. The legislative branch, Congress, makes the laws. The executive branch, headed by the President, enforces those laws. And the judicial branch, the courts, interpret the laws.

Each branch has different powers and fulfills different purposes to ensure a government that is accountable to the people. It’s also designed to create conflict within the government between the branches, which is a good thing.

The courts were never meant to create policy. That is the job of elected officials. When unelected judges start making decisions that override executive authority or congressional intent, they disrupt this balance and undermine the democratic process. It’s the same with unelected bureaucrats.

Checks and Balances: The Safeguard Against Tyranny

The Framers also built in a system of checks and balances to make sure no branch could exceed its constitutional authority. Congress can pass laws, but the President can veto them. The courts can review laws, but they don’t have the power to create new legislation. The President can issue executive orders, but Congress controls funding. Every branch is supposed to act as a check on the others.

But here’s the problem, when the judiciary oversteps its role and starts highjack national policy, there are very few checks on their power. Unlike elected officials, judges don’t face voters. They aren’t held accountable in the same way as Congress or the President. And when activist judges issue rulings based on their personal ideologies rather than the Constitution, they distort the system and consolidate power in an unelected branch of government.

Why This Should Matter to Every American

This isn’t about Trump. This isn’t even about Republicans or Democrats because for all the Democrat listeners out there, you wouldn’t want conservative judges doing this to push conservative policies. It’s about preserving the constitutional system as intended by the framers. If judges can block a President from enforcing immigration laws or strip Congress of its authority by rewriting legislation from the bench, then we no longer have a functioning constitutional government. We have a judiciary that has seized power it was never meant to have.

That’s why in this episode, we’re going to break down specific cases where activist judges have gone too far. We’ll expose how they are eroding executive authority and overriding congressional legislation. And we’ll talk about what can be done to rein in judicial overreach before it’s too late.

I’ll get to it all after this quick break so everyone hang tight and we’ll be right back.

Break

Judicial Activism and Executive Power

Welcome back to The P.A.S. Report Podcast. So, let’s get started. The judiciary’s role is to interpret the law, not dictate executive policy. Yet, over the course of the last few weeks, activist judges have inserted themselves into decisions that fall squarely within the President’s constitutional authority. Whether it’s national security, federal employment, or immigration enforcement, these judges have blocked President Trump from carrying out his duties as the Chief Executive.

And to be clear, I am not someone who blindly defends executive orders. I have consistently criticized the overuse of executive authority by both Democrat and Republican administrations.

I’ve also spoken out against some of the current President’s executive actions and proposals. I’ve routinely stated that only Congress can eliminate the Department of Education despite the President issuing a roadmap to dismantle it.

But that’s the point. There are clear constitutional boundaries for executive power, just as there are for the judiciary. When courts override a president’s legitimate authority, particularly in areas explicitly granted to the executive branch, they are no longer upholding the law. They are making it.

Federal Judge Blocks Trump’s Transgender Military Ban

The first case I want to look at is in regards to President Trump’s transgender military ban. U.S. District Judge Ana Reyes blocked the policy from being implemented and ruled that the order “likely” violates the Constitution by not providing evidence that banning them serves a legitimate military purpose, but then she went further. She stated that the policy was “soaked in animus and dripping with pretext and that the order uses derogatory language to target a vulnerable group.”

Now her claims are not based on any constitutional grounds, it’s speculation and conjecture. She assigns subjective intent that the Trump administration is operating in bad faith without having any evidence whatsoever. The Trump administration justified the policy citing military readiness, deployability, and medical costs, not hostility toward transgender individuals.

The Supreme Court ruled in 2018 that courts should not assume “animus” or bad faith in executive policies without clear evidence beyond political rhetoric. Judicial review should focus on whether there is a rational basis for a policy, not whether a judge finds it offensive or politically incorrect.

Also, Judge Reyes’s argument that the policy likely violates the Constitution because it doesn’t provide a “legitimate military purpose” is also backward. The government does not need to prove a compelling military necessity for every personnel policy, and in Rostker v. Goldberg (1981) upheld male-only draft registration because military decisions are entitled to great deference.

As Commander-in-Chief, the President has broad constitutional authority under Article II, Section 2 to set military service policies and this includes restrictions on who can serve. Trump isn’t the first president to use this power. Historically, presidents routinely establish eligibility requirements based on physical, medical, and psychological fitness, and there is no federal law that explicitly guarantees transgender individuals the right to serve. Military policies fall under the Department of Defense, which the President can modify through executive orders.

As Commander-in-Chief, the President oversees a military that routinely excludes individuals based on factors that impact readiness. And it’s not just about readiness. It’s also about unit cohesion. Military service is not a right, and in the Goldman v. Weinberger case, the Supreme Court upheld that military policies should not be judged on civilian constitutional standards.

Also, we have the Gilligan v. Morgan case where the Supreme Court established that the judiciary has no role in managing or overseeing military affairs under Article II powers. Clearly, Judge Reyes overstepped her boundaries.

And when you dig deeper into Judge Reyes’s background, you will find that she has a long history of left-wing activism. She’s given over $38,000 to Democrat causes and issues. She’s maxed out contributions to Democratic Senator Jon Ossoff’s campaign and Biden’s presidential campaign, and I am sure she probably made significant contributions to the Kamala Harris campaign.

Now, it’s not that she can’t engage in liberal causes or provide support to Democratic candidates. And just because she makes donations doesn’t mean she is biased. She has every right to do that, and I would bet that there are a number of Republican and Conservative judges that give to causes and candidates as well. However, when you do that, it opens up questions about judicial impartiality and whether her rulings are driven by legal principles or political motivations.

It’s why I never donate to candidates or political causes. While I am an admitted conservative, as a professor, it’s important for my students to know I am not financially vested in any political candidate or political party. And it’s not like my students would ever check, but it’s just a code I live by.

Judge Blocks President Trump’s DEI Cuts

In another case, U.S. District Judge Adma Abelson blocked President Trump’s executive orders that end government support for DEI programs. Judge Abelson stated that the “orders likely carry constitutional violations, including against free-speech rights.” The Trump administration argued that they were targeting DEI programs that violate federal civil rights laws.

The Judge also stated that the orders were generally vague, but isn’t DEI generally vague. Let’s be honest here, DEI is whatever the social justice advocates deem it to be. It’s a political agenda to push what they deem as social justice policies.

Now, if the money was appropriated by Congress for these DEI programs, then fine. The President doesn’t have the constitutional authority to usurp congressional power in determining how money is spent. But that’s not the case.

The fact is that much of the money is allotted to executive agencies and departments, and they get to determine how the money is spent. Take the National Science Foundation as an example. When President Biden took office, just .29% of NSF grants funded DEI programs, but throughout his presidency, the number ballooned to 27%. It’s not that Congress mandated a 25% increase in DEI grants from the NSF. The NSF was the one that decided, and since the President is the Chief Executive ultimately in charge of the NSF, he has the authority to set priorities for how those funds are allocated within the agency.

If an executive agency decides to divert a significant portion of its budget toward a political agenda like DEI without congressional direction, then the President absolutely has the right to step in and course-correct. This is not about infringing on free speech. It’s about taxpayer dollars being funneled into ideological pet projects pushed by bureaucrats.

What these rulings reveal is a pattern where activist judges are not simply interpreting the law, they are actively shaping policy from the bench. Whether it’s Judge Reyes interfering in military policy or Judge Abelson attempting to dictate how executive agencies allocate funds, these rulings aren’t grounded in constitutional law but in political ideology. The courts are essentially telling a sitting President that he cannot exercise his authority as Commander-in-Chief and the Chief Executive Officer of the United States.

Again, this isn’t about Trump. This has been going on for years, and in the next segment, we’ll take a closer look at two more cases. One where a judge overturned Trump’s decision to terminate probationary federal employees, and another where a judge outright halted deportations, once again undermining executive authority.

So hang tight and we will be right back.

Break

Judges Block Trump on Deportations and Personnel Decisions

Welcome back to The P.A.S. Report Podcast. Last week, U.S. District Judge James Boasberg ordered the Trump administration to immediately halt all deportations conducted under the Alien Enemies Act and demanded that any individuals already deported be returned to the United States. This case is highly controversial, and for good reason.

When the judge issued his ruling, a deportation flight carrying illegal criminal aliens was already in the air, heading to El Salvador. Judge Boasberg was furious, claiming the Trump administration defied a court order. But here’s the problem, his order was verbal, with no prior notice, and took effect immediately. How is the administration supposed to comply in real-time with an order that hadn’t even been written down yet? It takes time for such an order to make its way up the chain of command to the Secretary of Homeland Security, the Secretary of State, and the President. Yet, instead of recognizing the logistical impossibility of his demand, the judge decided to escalate tensions.

It would be nice if judges got this angry when the FBI illegally accessed the NSA’s repository on Americans or when they manipulated the FISA Court over 250,000 times. But no, this level of outrage is reserved for stopping the deportation of criminal illegal aliens.

And that raises a bigger question: Does a district court judge even have the authority to override the executive branch’s enforcement of immigration laws? Especially when those being deported are members of violent transnational gangs?

Some legal scholars are saying the Trump administration’s defiance is a Constitutional Crisis. Where were these scholars when President Biden openly defied the Supreme Court’s ruling on student debt cancellation and the mortgage moratorium? The hypocrisy is astounding.

But the real controversy lies in President Trump’s invocation of the Alien Enemies Act to deport Venezuelan gang members from Tren de Aragua to El Salvador. First, the U.S. Constitution grants the President broad powers to enforce federal laws, including those related to immigration.

Second, the Trump administration has designated TDA an international terrorist organization, and therefore, they can be subjected to the Aliens Enemy Act. What if it was members of al-Qaeda? Would anyone argue that they are not alien enemies? TDA has committed horrendous crimes including rape, human and sex trafficking, drug trafficking, and even murder. They tried to take over apartment complexes in Colorado, and they have spread rapidly thanks to Biden’s open border policies. And yet, many are now rushing to defend them, claiming they have a right to remain in the U.S.

This case also highlights how Judge Boasberg isn’t just infringing on the President’s role as Commander-in-Chief—he’s interfering in foreign policy. The deportation arrangement with El Salvador was a negotiated foreign policy agreement between two nation-states, aimed at preventing these criminals from being released back into Venezuela, where the Maduro regime would simply send them right back to the United States. This is yet another example of a judge attempting to dictate policy that rightfully belongs to the executive branch.

It will be interesting to see how this case plays out, but this ruling is a clear example of judicial overreach and is likely to be overturned by the higher courts.

The President’s Authority to Terminate Federal Employees

The next case I want to discuss is yet another example of judicial overreach. This time, in federal employment. District Court Judge William Alsup ruled that the Trump administration must reinstate over 25,000 federal employees who were terminated during their probationary period, and claimed the firings were illegal, and District Court Judge Amy Berman Jackson issued a temporary restraining order that blocked the Trump administration from further firings of federal employees.

This decision directly undermines the President’s authority as the Chief Executive Officer of the United States. The President oversees the entire executive branch, and part of that responsibility includes the power to remove employees who are not meeting performance standards or who are no longer needed. This is especially true for probationary employees, who do not have the same civil service protections as permanent government workers.

The probationary period exists for a reason. No one has a constitutional right to a federal job. If the President and his administration determine that these individuals should not continue in their positions, that decision should not be subject to judicial interference.

The idea that a district court judge can dictate federal employment decisions is absurd. And while it is never fun to watch people get laid off, the Constitution vests executive power in the President, not in unelected judges.

While Congress has the authority to pass civil service protections, probationary employees have never been granted the same job security as permanent federal workers. Courts inserting themselves into this process not only disrupt the functioning of the executive branch but also create a dangerous precedent where judges decide how the government workforce is managed.

If this ruling stands, it severely weakens the President’s ability to hold federal employees accountable and manage the efficiency of the government. This is just another example of the courts overstepping their bounds, undermining the constitutional role of the executive branch.

But this isn’t the only troubling trend. In the final segment, I’ll discuss why this judicial activism is growing worse, what can be done about it, and why it is essential to restore judicial restraint before the courts reshape the entire balance of power in our government. So hang tight, and we will be right back.

Break

How to Restore Judicial Accountability and Judicial Restraint

Welcome back to The P.A.S. Report Podcast. So We’ve been talking a lot about judicial activism and overreach, and the bottom line is that if a President can’t make personnel decisions, can’t access federal databases, can’t reorganize agencies like USAID, can’t direct discretionary spending, and can’t even lay off probationary federal employees, then what exactly can a President do? At what point does the President simply become a figurehead within government?

These activist judges are creating a system where the executive branch is paralyzed, unable to carry out its constitutional duties because unelected judges believe they should have the final say in governing. We also know that this is more about Trump than the Constitution. How do I know that? Consider a Harvard Law Review study regarding injunctions that halted presidential policies on the last five administrations. There were 6 injunctions against the Bush administration, 12 against the Obama administration 64 against the first Trump administration, 14 against the Biden administration, and already 15 against the second Trump administration which has only been in office for two monts.

And listen, I am not someone who believes in unchecked executive power. In fact, I support extremely limited presidential authority, and I firmly believe power should be diffused among the many within Congress. That’s why Congress has the most checks on the other two branches.

But what these district court judges are doing goes beyond constitutional checks and balances. They are actively infringing on the President’s ability to govern.

Now, I do believe that the higher courts will overturn many of these rulings, and in doing so, they will correct the judicial overreach we’ve seen from activist judges. But here’s the part that amazes me. When people say, “The President is not a king.” Well, this President, whether you love him or hate him, is actually weakening the executive branch’s power, and that’s a good thing. Think about it. If you cut government spending, terminate bureaucrats, downsize agencies, and remove regulatory bloat, you are shrinking the power of the executive branch, not expanding it.

Yet the same people who constantly warn about Trump being a dictator and the death of democracy are now fighting for a strong executive branch. They want to keep the bureaucracy bloated, keep unelected agencies unaccountable, and at the same time, keep judicial activists in control.

This is not about Donald Trump, and I completely disagree with Trump’s call to impeach judges. That in and of itself is unconstitutional, as impeachment should never be used for ideological purposes. Chief Justice Roberts criticized the President’s comments, and conservatives unleashed against him, but it would be wise for Republicans and Conservatives to realize that if you begin impeaching judges on ideological grounds, this could easily backfire and be used weaponized against Constitutional originalist judges when Democrats get back into power.

While impeachment should be off the table, Chief Justice Roberts needs to lead and publicly rebuke these judges. Also, Congress can consider censuring these judges for overstepping their constitutional authority and issuing rulings that undermine the separation of powers. While the judiciary must remain independent, it is not immune to accountability, and when judges substitute political ideology for legal interpretation, it threatens the integrity of the entire system.

It’s about the balance of power in our government and whether the courts will be allowed to dictate policy rather than interpret the law. If this trend continues, future presidents, Republican or Democrat, will find themselves unable to execute even the most basic functions of their office. This is a dangerous precedent, and if we care about constitutional governance, it has to be addressed.

That wraps up this episode of The P.A.S. Report Podcast. Make sure to subscribe, share this episode, and leave a review. I’ll be back next time with more analysis on the issues that matter. Thanks for listening, and I’ll see you soon.

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