Progressives have spent months insisting that President Trump is “ignoring the rule of law” whenever he resists or questions judicial rulings — on birthright citizenship, trade policy, the removal of Federal Reserve Governor Lisa Cook or even the addition of his name to the Kennedy Center. The critique collapses under the weight of the left’s own constitutional commitments. Many of the same people attacking Trump champion popular constitutionalism and departmentalism — two frameworks that explicitly reject judicial supremacy and affirm the independent interpretive authority of the elected branches.
In today’s hyper‑politicized legal environment, the left’s selective outrage obscures the constitutional reality.
Popular constitutionalism, most famously explicated by former Stanford Law Dean Larry Kramer in “The People Themselves,” holds that the people — acting through elected officials — retain ultimate authority over constitutional meaning. Courts are not supreme; they are participants in a broader constitutional conversation. Departmentalism, embraced by presidents from Thomas Jefferson to Richard Nixon, similarly maintains that each branch has an independent duty to interpret the Constitution.
GORSUCH SAYS IDEOLOGICAL DIVIDES ON SUPREME COURT COME DOWN TO ‘HOW YOU READ LAW,’ NOT POLITICS
Crucially, departmentalism draws a distinction modern critics ignore: while a court’s judgment binds specific parties in a specific case, it does not bind the political branches as a permanent mandate. Rejecting judicial supremacy is not defying the rule of law; it is rejecting the idea that five or six judges have a monopoly on constitutional truth. That view is a mainstream critique of judicial supremacy, yet when Trump invokes the same logic, the left treats departmentalism as dangerous heresy.
Trump’s critics speak as though presidential resistance to judicial interpretations is unprecedented, but it is woven into American history. Thomas Jefferson refused to treat Marbury v. Madison as binding beyond the parties, writing that “each of the three departments has equally the right to decide for itself what is its duty under the Constitution.” Andrew Jackson declared the Supreme Court’s views “ought not to control the coordinate authorities of this government.” Abraham Lincoln treated Dred Scott v. Sandford as binding only on the immediate litigants, refusing to accept it as a permanent rule for the nation. Franklin Roosevelt openly challenged the Court’s constitutional interpretations during the New Deal, and Richard Nixon frequently asserted independent executive authority in administrative matters. If presidential resistance to judicial supremacy were inherently lawless, half of America’s most consequential presidents would be guilty of it.
LIBERAL STATE SUPREME COURT JUSTICE BLASTS SCOTUS CONSERVATIVES, SAYS HAWAII WILL DEFY HIGH COURT
Trump’s actions fall squarely within this tradition. Much of today’s friction stems not from executive defiance of individual decrees, but from lower courts relying on nationwide injunctions that attempt to freeze executive action everywhere at once. That modern dynamic makes departmentalist principles more relevant than ever. The Supreme Court’s recent jurisprudence has pushed back against such injunctions, emphasizing that lower courts exceed their constitutional authority when they attempt to issue sweeping rules binding the entire government. That judicial self‑restraint aligns directly with departmentalism: the judiciary’s role is to resolve specific disputes between specific litigants, not to govern coequal branches.
Critics point to Trump’s continuing efforts to end birthright citizenship as proof of lawlessness. But the dispute is fundamentally about constitutional interpretation. Although the Supreme Court recently ruled against Trump’s position, pressing the argument again through distinct legal channels reflects the same iterative process past presidents used when they believed the Court misread the Constitution.
TRUMP CRITICIZES 2 SUPREME COURT JUSTICES BY NAME OVER TARIFF RULING
The same dynamic defines recent tariff disputes. When the Supreme Court ruled in Learning Resources v. Trump that the International Emergency Economic Powers Act did not delegate unilateral tariff-setting authority, the administration’s pivot to alternative statutory mechanisms was labeled lawlessness. But testing other delegations passed by Congress is standard interbranch dialogue.
CLICK HERE FOR MORE FOX NEWS OPINION
The rule of law does not require presidents to treat judicial interpretations as infallible. It requires them to operate within constitutional limits — and assert their own constitutional judgments when appropriate. President Trump is doing exactly that.
This isn’t an abstract point for me. Long before Donald Trump entered national politics, I wrote a book published by Oxford University Press making the historical case against popular constitutionalism and departmentalism — an originalist defense of judicial finality. But that scholarly position does not mean President Trump is ignoring the rule of law or behaving like an authoritarian when he advances a theory of judicial review that other presidents and scholars have likewise advanced.
The real danger is not presidential resistance to judicial supremacy — it is the selective outrage that turns constitutional theory into a partisan weapon.
