What's Driving The Judicial Escalation Of Lawfare?

It’s actually really simple. As we’ve been maintaining, most of Trump’s EOs are ultimately aimed at defunding the Dems. I’m not saying that these EOs are nakedly political—far from it. They are truly aimed at restoring our constitutional order, which includes the separation of powers and functioning checks and balances among the branches of government—each branch performing the role that was assigned by the Constitution. The trend of Roberts court decisions trimming back the Admin State—ongoing for years—is part of that process, forcing Congress to get back in the business of legislation, rather than delegating to administrative agencies. Most of the serious deformations of our constitutional order were put in place by Progs and were hijacked/designed to fund the Prog agenda, so it’s no coincidence that deconstructing that apparatus also results in defunding the Dem party that is the vehicle for Prog rule.

If you don’t believe me, then believe the NYT:

Tom Bevan @TomBevanRCP

The New York Times.

5:51 AM · Mar 21, 2025

“Highly partisan?” That means they don’t like it. The first step toward a full blown hysterical breakdown. The NYT wouldn’t be saying this out loud if they weren’t in panic mode.

Don Wolt @tlowdon

In other words, the Left is unable to survive without machinery which includes corrupt fundraising platforms, taxpayer funded non-profits & media groups aligned with Democrats, and a DOJ-Big Law lawfare complex.

Jenny R @JR4484

Why is the entire Democrat apparatus paid for by the federal government? It’s a massive slush fund that the tax payers pay for. I don’t want to fucking pay to elect these people!

Margot Cleveland hits this nail on the head:

Margot Cleveland @ProfMJCleveland

We told you those grants were all funding Dems!

Now, not all of the lawfare cases involve grant funding—just many of them. But the point of the escalation that we’re seeing—it has now reached the point of a substantial portion of the federal judiciary being in open rebellion against the Constitution—is aimed at shutting down the legal arm of the government by tying it up with abuses of the legal system. Injunctions masquerading as TROs, illegal orders that flout the separation of powers (acting without jurisdiction), political speeches from the bench, etc. Roberts appears to be in a state of denial, but that can’t last. As the courts spin out of the constitutional lane—out of control—he’ll be forced to take action to head off Trump taking action.

Hugh Hewitt—I haven’t followed him since forever!—points to a case that hasn’t received a lot of attention. But will, because its a federal circuit poking the SCOTUS in the eye:

Hugh Hewitt @hughhewitt

I was shocked to read the First Circuit’s decision in Foote v Ludlow School District yesterday. I missed it when it came down in February.

In the press of news generated by the new Administration and wars around the world (and the grip of a bad bug now passing) it was bound to happen. But I will work to catch the audience up. The per curium opinion is here: https://ca1.uscourts.gov/sites/ca1/files/opnfiles/23-1069P-01A.pdf… It is written by committee —a committee of very bad writers btw.

I expect this case to be accepted for review by SCOTUS because it’s an outrageous disregard for long-settled Supreme Court precedent about the rights of parents to control the upbringing of their children. It is also the first, naked “Resistance in Robes” decision that seems calculated to challenge the Supreme Court. Circuit courts get reversed all the time. Sometime because SCOTUS tossed an old precedent (as Brown v Board tossed Plessy and Dobbs tossed Roe). But rarely if ever do circuit courts just blow off long-settled law to advance a left-wing agenda contrary to binding precedent.

8:51 AM · Mar 21, 2025

Reread the last paragraph slowly. When Hewitt is openly referring to a

“Resistance in Robes” decision … calculated to challenge the Supreme Court … to advance a left-wing agenda contrary to binding precedent.

then you know that Roberts will be forced to act. Yes, it’s true that the First Circuit (New England) is a small and extremely liberal circuit, but this type of defiance can’t be allowed.

A very readable article today at The Federalist—written by a former US Attorney—makes a similar point with regard to Boasberg’s handling of the TdA deportation case.

Judge Overreaches Amid Latest Lawfare Against Trump

Judge James Boasberg hastily took command and control over the latest iteration of lawfare. His orders and reactions are laden with error.

This is a case that is bound to go against Boasberg, but he’s pressing ahead with the goal of tying up the process:

Judge Boasberg’s orders, actions, and reactions are laden with plain error.

From the onset, Boasberg failed to recognize his court lacks the jurisdiction to hear this case. Why? The ACLU filed this case in the District of Columbia. The five Venezuelan plaintiffs represented by the ACLU are not detained in D.C., but in New York and Texas. The Supreme Court ruled in Rumsfeld v. Padilla that no court has jurisdiction over a habeas petition unless those filing the petition are detained in the district in which it was filed.

Boasberg was also quick to accept the plaintiffs’ premise that the Alien Enemies Act (AEA) is a power properly exercised only during a time of war. This is patently false. Any plain reading of the law makes it clear that the AEA is an appropriate power to invoke not only during a time of war, but when the president determines there has been an invasion or predatory incursion. Even more persuasive is the Supreme Court’s ruling in Ludecke v. Watkins that the AEA extends beyond wartime.

…

Boasberg continued to pepper the record with error when he gave the Justice Department (DOJ) lawyers an oral order to turn the planes around. He then issued a written order that never mentioned flights or aircraft. Two planes full of alien enemies left Texas and were over international airspace at the time of the written order. A third plane departed after both the oral and written orders were published. In an apoplectic fit, the ACLU and Boasberg furiously demanded an explanation from the administration, suggesting contempt of court.

Such bravado deflated quickly when DOJ pointed out the D.C. Circuit has ruled that oral orders have no veracity and only the written order, entirely devoid of any mention of airplanes full of terrorists, controls. Moreover, Boasberg’s morale must have waned further when he learned the federal courts have repeatedly ruled that a person is “removed” from the U.S. the moment they reach international airspace. All removed alien enemies on the first two flights were over international airspace at the time of Judge Boasberg’s written order.

In his conclusion the author gets to the same point that Hewitt made—this is a judicial insurrection against constitutional governance. And he likewise maintains that the escalation of judicial lawfare will force action by the SCOTUS:

Boasberg has gone too far and too fast to retreat, so this skirmish will continue until the Supreme Court loads up the Article II cannons on his position (see what I did there). Through his orders and admonitions, Boasberg has tactlessly given imprimatur to the “legal strategy” of disrupting the Trump presidency at all costs. ...

President Trump’s adversaries were determined to take his freedom, his fortune, and even his life. Those efforts thankfully failed. But his enemies remain undeterred.

This is just lawfare by other means.

Margot Cleveland, in a not-too-long thread illustrates in a different case how the rebel judges are getting tangled up in obvious contradictions, yet won’t back out—because they know the stakes are the very survival of the government funded Prog movement. Watch how the Trump lawyers deploy legal jujitsu against the Progs and their judge. Who thinks the Trump legal department hasn’t gamed all this out long ago?

Margot Cleveland @ProfMJCleveland

Trump Administration seeks to dissolve injunction in military gender-dysphoria case or stay pending appeal, arguing it isn't a blanket bar on transgender troops, but turns on medical diagnosis of gender dysphoria. 1/

This was wise move because "Gender Dysphoria" is a Mental Disorder, and saying military can't bar folks for "mental disorder" by a court is CRAZY. Someone who is "transgender" but with no "mental disorder" wouldn't be barred, though per clarification. This turns issue, because transgender lobby try to pretend it isn't a "mental disorder" but a matter of being born in the wrong body or that their "gender" just is different than their sex, and that's not a disorder. BUT any transgender who wants cross hormones etc. MUST be diagnosed with gender dysphoria to have it covered by insurance, etc. So Trump Administration is basically forcing Plaintiffs to admit they have a mental disorder for them to say this policy is discriminatory against all trans. And for Court to say military can't bar people from serving who have a mental disorder, again would be crazy.

NOW most people condemning Court know its mental disorder but this forces Plaintiffs/Court to recognize it.

8:34 AM · Mar 21, 2025

I have to believe a showdown is coming, and it will be sooner now rather than later, because of the extreme tactics of the Prog judges.