President Trump and Elon Musk are wrong to threaten judges with impeachment
DOGE has grand plans to shrink bureaucracy, but the ride has been bumpy. Those bumps include court decisions that have slowed the president’s efforts to cut government waste. But frustrated DOGE fans should not forget that courts play a vital role in achieving DOGE’s goal of limited government.
For now, there is no love lost between DOGE and some federal judges. Take Elon Musk’s tweet in late February about a judge who paused a DOGE-inspired executive order: “If ANY judge ANYWHERE can block EVERY Presidential order EVERYWHERE, we do NOT have democracy, we have TYRANNY of the JUDICIARY.” Musk and President Trump have even called for impeachment to unseat the judges who have stayed the president’s hand in his efforts to halt funding and deport migrants.
Musk does have a point. Courts do run counter to democracy. That’s their job—to enforce constitutional limits on popular rule. The Framers created a system designed to protect individual rights from the whims of democratic majorities. The cornerstone of the grand constitutional cathedral they built was centered around the separation of powers.
Ours was the first nation to crack a timeless riddle: who governs the government? “If angels were to govern men,” as James Madison put it, we’d have no need to control government. But we’ve only got people to work with, and as another keen observer of human nature put it—Calvin from Calvin & Hobbes: “the problem with people is that they’re only human.”
The Framers’ answer was to lock those in power into competition with each other. Madison again: “Ambition must be made to counteract ambition.” The Framers understood that rulers would forever prowl the boundaries of their own power. To prevent those borders from being breached, the spheres of government would be separated, and each branch equipped with “the constitutional means and personal motives to resist encroachments of the others.”
Courts are an essential pillar in this architecture. In fact, the Supreme Court has made recent strides toward restraining the other branches, such as the Court’s Loper Bright decision ending judicial deference to agency interpretations of the law.
The legal controversies that frustrate Musk today are echoes of an early Supreme Court case that forged the crucial role courts would play in this system of checks and balances: Marbury v. Madison. Newly elected President Thomas Jefferson had refused to honor a judicial appointment his predecessor had given to William Marbury. Marbury asked the Supreme Court to force Jefferson’s hand.
Chief Justice John Marshall seized the chance to lay out one of the greatest gifts to advocates of limited government like DOGE: judicial review. Marshall held that Jefferson had to honor the appointment, but the law granting the Supreme Court direct jurisdiction over Marbury’s case was unconstitutional, so the Court couldn’t require Jefferson to act in this specific case. Marshall thus established that the courts had the power to check both the president and Congress.
Jefferson’s grumbling about judicial review at the time sounds just like Musk’s tweet about so-called judicial tyranny: “the opinion which gives to the judges the right to decide what laws are constitutional . . . would make the judiciary a despotic branch.” Jefferson lost that fight, and we’re all freer because of it.
The president and Musk, as frustrated by judicial review as Jefferson was, are also embracing another dangerous idea: politically motivated impeachment of judges they disagree with. For instance, DOGE and friends have called for the impeachment of Judge Amir Ali for pausing the president’s order that would freeze funding allocated by Congress and Judge James Boasberg for ordering that an aircraft deporting a group of Venezuelans turn around. Their call for blood has prompted a rare rebuke from Chief Justice John Roberts, who chided, “impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Again, this maneuver would undermine DOGE’s goal of limited government. If judicial review of the other two branches is to provide a meaningful check, the judiciary must be independent—sheltered from the whim of popular rule. The Constitution achieves this through permanent tenure during “good behavior.” Alexander Hamilton called this “one of the most valuable of the modern improvements in the practice of government” because judicial independence erects “an excellent barrier to the despotism of the prince.” Without it, judges would just be political pawns beholden to the other branches.
A controversial judicial decision is not grounds for impeachment. Otherwise, the two stronger branches of government can strongarm their way through any legal challenge to their authority. Yet that is what DOGE and the DOGE Caucus in Congress propose to do. At root, impeachment for restraining the president’s executive orders is no different than Democrats’ ceaseless efforts to attack the Supreme Court for its own recent efforts to pare back the administrative state.
DOGE wants to cut the size of government. Great. If it’s serious about that effort, it must stand for a robust and independent judiciary, even when courts do things DOGE does not like. The current size of government is in no small part thanks to a submissive judicial branch. In its enthusiasm to cut government, DOGE should take care not to cut out the Constitution along with it.
