Critics contend that progressive arguments against President Donald Trump's resistance to judicial rulings demonstrate constitutional hypocrisy, as these arguments often align with theories that reject judicial supremacy. The analysis suggests that many of the same individuals and groups labeling Trump as "ignoring the rule of law" also champion popular constitutionalism and departmentalism, frameworks that emphasize the independent interpretive authority of the elected branches.
Popular constitutionalism, as articulated by scholars like Larry Kramer, posits that the ultimate authority over constitutional meaning rests with the people, acting through their elected officials, rather than solely with the courts. Departmentalism, a principle historically supported by presidents such as Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, and Richard Nixon, asserts that each branch of government has the right and duty to interpret the Constitution independently.
According to this perspective, while a court's judgment binds the parties involved in a specific case, it does not establish a permanent mandate for the other branches. Rejecting judicial supremacy, the argument goes, is not an act of defiance against the rule of law but a refusal to grant a monopoly on constitutional interpretation to a small number of judges.
This tradition of presidential resistance to judicial interpretations is described as deeply woven into American history. Thomas Jefferson, for instance, stated that "each of the three departments has equally the right to decide for itself what is its duty under the Constitution." Abraham Lincoln reportedly viewed the Supreme Court's decision in Dred Scott v. Sandford as binding only on the immediate litigants, not as a national rule.
The current dynamic, the analysis suggests, is exacerbated by lower courts issuing nationwide injunctions that attempt to halt executive actions broadly. The Supreme Court's recent jurisprudence has reportedly pushed back against such sweeping injunctions, emphasizing that lower courts should resolve specific disputes rather than attempting to govern coequal branches.
Specific instances cited include Trump's challenges to birthright citizenship and tariff policies. The administration's continued arguments on birthright citizenship, even after a Supreme Court ruling, are framed as an iterative process of constitutional interpretation, similar to actions taken by past presidents. Similarly, the pivot to alternative statutory mechanisms in tariff disputes, following a Supreme Court ruling on the International Emergency Economic Powers Act, is characterized as standard interbranch dialogue rather than lawlessness.
The author, Scott Douglas Gerber, a scholar at the University of Mississippi and author of works on jurisprudence, states that while he has scholarly arguments against popular constitutionalism and departmentalism, President Trump's actions in these instances do not equate to ignoring the rule of law or behaving like an authoritarian. Instead, the article posits that the true danger lies in the selective application of constitutional theory for partisan purposes.