Alexander Hamilton Saw This Coming

Judges aren’t politicians for a reason.

AI generation for “Alexander Hamilton looking into the future”

I. Bad people

I want to start this morning with a reader question I received, in response to my reporting on Monday and Tuesday about President Trump’s proclamation invoking the Alien and Enemies Act:

Aren’t gang members of Venezuelan gang Tren de Aragua (TdA) bad people? Why do we have them? Or are they the opposition of the bad government and we gave them refugee status and now we’ve sent them to their deaths?

The answer is, no, TdA members — the group whom Trump is attempting to remove with his proclamation — are not political dissidents who opposed Nicolás Maduro’s government in Venezuela, sought refuge in the U.S., and are now suddenly being cast away.

In fact, TdA is linked to the Maduro regime in several ways, and its estimated 600+ members in the U.S. are largely (if not entirely) here illegally; the group has been involved with several high-profile attempts to storm the border.

According to a court filing by an administration official, some of the TdA members removed under the Alien and Enemies Act — in flights that the government refused to turn around, despite Judge James Boasberg’s verbal order — had not been accused of committing any crimes since illegally entering the U.S. But others had been accused or convicted of involvement in crimes like murder, assault, home invasion, drug charges, and running a brothel.

In one particularly disgusting incident, one of the removed TdA members had been arrested for an indecent assault in which he “entered the room of a fourteen-year-old victim, tried to lift her shirt, grabbed her thigh, and rubbed his penis on her.”

One member of the group has been convicted of murdering Laken Riley, a 22-year-old nursing student in Georgia; two others have been charged with sexually assaulting and murdering Jocelyn Nungaray, a 12-year-old in Texas. (Both young women were honored in Trump’s address to Congress earlier this month.)

Members of TdA are, to put it more simply, bad people. I, like almost all of you, I’m sure, would much rather they not be in the United States and would not want to be in any sort of position where I might feel required to help them stay here.

Which is why I’m glad I’m not a federal judge. Because the job of a federal judge, faced with a presidential proclamation ordering the immediate deportation of TdA members, is not to say whether or not the targets are good people. We know they aren’t. It’s to carefully weigh whether the proclamation giving the president such powers was issued in accordance with the law, especially seeing as the law in question gives the executive branch broad leeway to decide for itself who is and isn’t a TdA member and therefore subject to removal.

In a Truth Social post yesterday, President Trump pointed out — correctly — that Judge Boasberg was attempting to question whether the executive branch had acted legally despite the fact that Boasberg, unlike Trump, had not won a national election.

“He didn’t WIN the popular VOTE (by a lot!),” Trump said, “he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY.”

He’s right: we don’t. But that has no bearing on what Boasberg should do here. Politicians have to go through popularity contests and sometimes make decisions based on polls. But judges, as the president pointed out, don’t have to win elections — for precisely the reason Trump is proving here.

Almost 250 years ago, at the advent of our republic, Alexander Hamilton (writing as “Publius”) laid out those reasons in one of the most celebrated of the Federalist Papers, No. 78. There would come a time, Hamilton predicted, “that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents” would attempt to act in a manner “incompatible with the provisions in the existing Constitution.”

When that time came, it would be left to judges to “do their duty as faithful guardians of the Constitution.” It would “require an uncommon portion of fortitude,” Hamilton said, to carry out that role in violation of public sentiment if they were worried about being re-elected.

Hamilton called this judicial independence — even from the political pressures lawmakers and presidents are expected to heed — an “essential safeguard against the effects of occasional ill humors in the society,” including against “dangerous innovations in the government” that cause “serious oppressions of the minor party in the community” or injure “the private rights of particular classes of citizens, by unjust and partial laws.”

The Trump administration does not seem to mind the image that it is willfully defying the courts, presumably because it deduces that the cases at hand will be political winners for their cause. As I noted in January, there is no more popular Trump policy than deporting undocumented migrants with criminal records: it’s a roughly 90/10 issue, according to a recent New York Times poll.

TdA members are not particularly sympathetic immigrants to defend, nor is the Brown University physician Rasha Alawieh, who attended the funeral of Hassan Nasrallah, the leader of the terrorist group Hezbollah, and called herself a religious (though not political) adherent of his. (Alawieh, a visa holder, was deported last week despite a judge ordering the Trump administration not to remove her without giving him advance notice.) “Bye-bye, Rasha,” the Department of Homeland Security tweeted, gleefully embracing the controversy; the official White House account posted a video of alleged TdA members being deported to the tune of “Closing Time.”

The deportations, indeed, may be popular, but it doesn’t make them legal; in their public statements, Trump administration officials have appeared to suggested that one should lead to the other. “If we live in a country where the will of the American people is subverted by a single judge in a single court, we no longer live in a democracy,” White House press secretary Karoline Leavitt said on Monday.

But our democracy was constructed with the expectation that judges wouldn’t blindly follow the will of the people — or “consult popularity,” as Hamilton put it — even (especially?) if that meant taking the minority side of a 90/10 issue. They are supposed to consult, he said, “the Constitution and the laws.”

II. “In DOGE we trust”

Hamilton may have been a shrewd observer of human nature, but he was not prophetic. The Federalist Papers were written to explain how the nascent U.S. political system would operate, and yet there is a lot its authors got wrong about the shape of the eventual government.

For example, when Hamilton is referring to judges checking the impulses of politicians acting illegally to cater to the public will, he was mostly talking about Congress — not because courts couldn’t also check the president, but because he imagined that Congress would be the primary venue for affecting public policy. How quaint.

“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex,” James Madison wrote in Federalist No. 48, predicting that Congress would be the branch of government that would most need to be constrained.

The Founders were more confident that the other two branches would be easily hemmed in. “The executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves,” Madison assured his readers.

That’s not quite how it played out. The judiciary, as Hamilton noted in No. 78, wields neither “the sword” nor “the purse,” and yet — because its orders have largely been followed throughout American history — it has retained a great deal of power to shape the course of governing. The president, obviously, has also assumed more and more influence over time. Congress, meanwhile, has often shrunk itself to a bit player in the policy debates that the Founders assumed it would dominate.

The Founders wanted co-equal branches, but assumed a rough ranking of their power would be arrayed as follows:

1. Legislative

2. Executive

3. Judicial

I would argue we’ve landed at a different configuration, with the branch the Founders thought would be most active now the least involved:

1. Executive

2. Judicial

3. Legislative

An issue like immigration is a great example: the president deports (or doesn’t), judges block him (or don’t), and legislators cower in the corner, hoping not to be called on. It’s been almost 40 years since a comprehensive immigration package was approved by Congress; it’s not as if the issue has just stood dormant since then — it hasn’t — lawmakers just haven’t been part of any of the changes.

One easy way to see how far we’ve traveled from the Founders’ presumed division of power is to look at how the various branches of government react when they believe the others are encroaching on their authority.

Executive branch officials obviously feel judges are doing that right now; the head of that branch, the president, has made that view quite clear in the past few days. Judges, however, are continuing to check the president; on Tuesday alone, judges ruled against Trump’s transgender military ban and his actions at USAID.

As tensions between the two branches escalate, Chief Justice John Roberts spoke out about them yesterday, seemingly in response to Trump’s call for Judge Boasberg to face impeachment. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a rare statement. “The normal appellate review process exists for that purpose.”

Personally, I am not convinced that Roberts’ statement was altogether wise — when faced with allegations that judges had butted into another branch’s business, why do so again by commenting on impeachment (a power accorded to Congress)? — but it’s a revealing insight into what felt he had to do as the head of a co-equal branch when the authority of his branch was being threatened.

Compare his statement to those of the head of the legislative branch, House Speaker Mike Johnson (R-LA), who has “positioned himself more as a subordinate to the president than the leader of a coequal branch of government with its own power,” as the New York Times recently put it last.

Johnson said in February that he “wholeheartedly” agreed with the Trump administration’s actions to cut federal spending without the consent of Congress. “I’ve been asked so many times, ‘Aren’t you uncomfortable with this?’” Johnson added. “No, I’m not.”

His members have followed his lead: “In DOGE we trust,” Rep. Tom McClintock (R-CA) recently told the Associated Press, explaining that he was voting for a government funding bill only because of his certainty that a White House agency would ignore it. For Madison, who designed separation of powers with the idea that “ambition must be made to counteract ambition,” the sentiment would have come as quite a shock.

Our government has now contorted itself such that the judicial branch is being more active in protecting the legislative branch’s power than the legislative branch itself.

In a Tuesday opinion, Judge Theodore Chuang ruled that Trump’s actions to dismantle USAID were probably unconstitutional because they “deprived the public’s elected representatives in Congress of their constitutional authority to decide whether, when, and how to close down an agency created by Congress.”

Chuang also noted that, as recently as its 2024 appropriations package, Congress had prohibited the executive branch from reorganizing or eliminating USAID; Johnson backed that package, yet neither he nor many of his Republican colleagues have similarly objected to the Trump administration appearing to violate a law they supported. (Rep. Tim Burchett (R-TN) did post on Tuesday that Chaung “did us a favor,” adding: “Make Congress do its job and defund USAID.”)

III. The veil of ignorance

Of course, it’s entirely possible that Judge Chuang could be wrong about the Trump administration unconstitutionally dismantling USAID, just as Judge Boasberg could be wrong to temporarily block officials from deporting members of TdA.

But the Founders anticipated this possibility, too, which is why they built in the backstop of the appeals process, to ensure that if a “single judge in a single court” (Leavitt’s words) make a wrong decision, higher court judges — and ultimately the Supreme Court — can fix it.

“It should go without saying that, at the Justice Department, the rule of the road is that, in the absence of a true emergency, the government complies with judicial orders, even if the orders are patently lawless, until it can get them reversed — either by the issuing judge or a higher court,” the conservative legal commentator Andrew McCarthy wrote this week in the National Review. “It’s all right to complain bitterly about court orders, but they are not to be ignored, much less knowingly flouted.”

If a judge is truly acting lawlessly, another remedy exists as well, as Trump has identified: impeachment. Minutes after Roberts issued his statement condemning judicial impeachment efforts, Rep. Brandon Gill (R-TX) filed a resolution to impeach Boasberg.

Writing about impeachment in Federalist No. 65, Hamilton acknowledged that the process would divide the country “into parties more or less friendly or inimical to the accused,” sparking a “danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” He felt confident, however, that a supermajority of senators could be trusted to weed out political accusations from serious charges of the “abuse or violation of some public trust.” (A simple majority of the House is required to impeach someone, while 67 senators are required to remove them from office. White House senior adviser Elon Musk incorrectly wrote that 60 senators were required this morning.)

There’s also the possibility that a greater, systemic imbalance exists. Hamilton and Madison were not the only men in powdered whigs pondering the virtues of the new Constitution under a Roman-inspired pseudonym. As part of a series of essays known as the Anti-Federalist Papers, opposing the Constitution’s ratification, a writer who went by “Brutus” objected to the judiciary’s powers.

“In short, they are independent of the people, of the legislature, and of every power under heaven,” he wrote. “Men placed in this situation will generally soon feel independent of heaven itself.”

Hamilton, for his part, felt that judges would ultimately be more limited. But maybe he was wrong, and the various judges reining in the Trump administration themselves must be reined in.

In that case, there are remedies — none of which require ignoring a judicial order — available as well. Some of them have even been floated by Trump administration officials, including getting rid of nationwide injunctions, the practice by which a single district judge can apply an order to the entire country. There is no federal law or Supreme Court case that explicitly allows nationwide injunctions; it’s perfectly reasonable to ask whether they are a preferable (or even legal) way to adjudicate policy disputes.

The issue is that there is almost no one left on the political spectrum with the credibility to demand those changes.

White House deputy chief of staff Stephen Miller, for example, has been on a tear against nationwide injunctions as of late. But Miller, during the Biden administration, led a legal group that frequently brought cases in hopes of delivering nationwide injunctions against Biden. It was only last year that he called the issuance of a nationwide injunction a “MAJOR VICTORY,” not evidence of “indefensible judicial tyranny,” as he does now.

This type of short-term thinking abounds in both parties. Many Democrats, for example, seemed to have no ethical qualms about using the Senate filibuster to block a government funding bill — despite labeling it a “Jim Crow” institution during the Biden years, when they advocated for its abolition. I’m sure those same Democrats are happy the filibuster is still around today, just as they are glad for the notion of lifetime judicial appointments — allowing judges appointed as far back as Reagan to strike down Trump actions — which many also claimed to oppose during their time in power. None of the Democrats who criticized nationwide injunctions when Republican-appointed judges constrained Biden have spoken about Democratic-appointed judges ruling against Trump.

At times, these flip-flops take only days to execute. Just last Friday, President Trump said it “should be illegal” to criticize judges, though he named only five conservative members of the Supreme Court to prove his point (he notably left out Justice Amy Coney Barrett, who has faced MAGA criticism of late). By Tuesday, Trump had broken his own would-be law with his criticisms of Judge Boasberg.

Hamilton and Madison designed an imperfect system — as today’s politicians never tire of pointing out. But frequent calls, from both parties, for systemic changes are unlikely to succeed without some measure of humility.

When proposing changes to the constitutional order, politicians would be well-served to apply a version of John Rawls’ veil of ignorance: Design a political system such that you would find it fair if you were in either the majority or the minority. Without knowing whether or not you’ll be in power, do you think it makes sense for the Senate to pass bills with 51 votes, or 60? Should a single judge be able to set nationwide policy, or should that power be reserved for appeals court or Supreme Court judges? Anyone whose answers on these questions varies based on their position is asking to not be taken seriously.

In their day, “Publius” and “Brutus” were not immune from petty politics, but they at least attempted to design a system with an eye to how it would affect future generations, not just themselves in the present — even if they disagreed about how best to do that. Now there is almost no one left in Washington with a principled view of how the system should operate that has stood the test of being in both the majority and minority. We have traded long-term constitutional thinkers for knee-jerk partisan actors.

The Alien and Enemies Act case raises several serious questions of law. TdA members are, assuredly, bad people — but is it legal for a president, during what seems like peacetime, to decide who fits that bill and then deport them, entirely without due process?

It’s easy to imagine Republicans embracing that position now, but regretting it in the future. Which is precisely why the figures who will decide that question — judges — are supposed to be as immune as possible from partisan politics and public sentiment, even if it requires slowing down a popular initiative.

Once again, Hamilton knew this dilemma would arrive. The “integrity and moderation” of an independent judiciary may displease “those whose sinister expectations they may have disappointed,” he wrote. But “considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts.”

After all, he added: “No man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.”