[The original version of this blog can be found on Substack here.]. Feb. 7, 2026
[Updated Feb. 13, 2026]
Ever since Alexander Hamilton penned Federalist 78 in 1788, “like he was running out of time,” the Judiciary has been thought to “always be the least dangerous to the political rights of the Constitution.” Why’d Hamilton believe that? He wrote, “because it will be least in a capacity to annoy or injure them.”
That’s become ironic.
He explained, “It may truly be said to have neither FORCE nor WILL [caps Hamilton’s, not mine or Trump’s], but merely judgment.” That’s become prescient.
Today, as the separation of powers separates one branch - a hapless, craven legislature divided across aisles of rhetoric and showmanship – from a self-proclaimed unitary executive who’s been granted “presumptive immunity from prosecution for his official acts” and whose power in international affairs is limited only by his “own morality” – from a Supreme Court majority that has openly coveted partisanship, bias, and corruption.
It would be understandable to conclude that all three branches of American government are in Trump’s pocket. Checkmate.
In just over one year, the Trump administration has had its litigious hands full. The Lawfare Institute has documented what it calls The Trials of the Trump Administration. It’s updated daily and it outpaces accountants at tax time.
Mind the small print. Federalist 78 is about “The Judiciary Department.” There’s more to the Judiciary than the Supreme Court.
Though we’ve grown accustomed to the Supreme Court planting its big feet on lower court rulings, often without oral arguments or signed opinions, lower court judges know how to think and write.
Cadres of judges who hail from the Judiciary are not holding back. They’ve transformed the least dangerous branch into the only vigilant branch. They’ve preserved judgment and in lieu of force and will, weaponized wit.
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| [Click here for the NYT story.] |
The judges don’t mince words. They recognize that words won’t be erased even if the Supreme Court overturns their decisions.
There’s Federal Judge Colleen Kollar-Kotelly, who, the other day, permanently blocked two provisions of a Trump executive order that sought to impose proof-of-citizenship rules on elections.
Sometimes, it’s simple.
Within days of Trump taking the oath of office, Federal Judge John C. Coughenour issued a ruling temporarily blocking President Trump’s executive order that aimed to end birthright citizenship for children born to immigrants in the U.S. temporarily or without legal status.
He wrote: “I’ve been on the bench for four decades, I can’t remember another case where the question presented is as clear as this one is,” Coughenour said, describing Trump’s order as “blatantly unconstitutional.”
He had more to say: “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’ “ the judge said, according to KUOW News.
With the Supreme Court securely entrenched, the issue of birthright citizenship may be “blatantly unconstitutional”…for now. The Supreme Court hears oral arguments this coming April Fool’s Day.
Tis a gift to be simple. Some cases bear other gifts.
In the high profile detention case the other day of Adrian Conejo Arias and his minor son, L.C.R., Federal Judge Fred Biery for the Western District of Texas, described the case this way:
It has its “genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children.” Ouch. Not nearly done.
“Apparent also is the government’s ignorance of an American historical document called the Declaration of Independence.” Historical ouch.
“Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation. Among others were: 1. “He has sent hither Swarms of Officers to harass our People.” 2. “He has excited domestic Insurrection among us.” 3. “For quartering large Bodies of Armed Troops among us.” 4. “He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures.”
The judge continued,
“’We the people are hearing echos of that history.”
He went on, with pen just warming up. “And then there is that pesky inconvenience called the Fourth Amendment. From simple to pesky.
“Civics lesson to the government: Administrative warrants issued by the executive branch to itself do not pass probable cause muster. That is called the fox guarding the henhouse. The Constitution requires an independent judicial officer.”
From pesky through civics all the way to perfidy, lust, cruelty and human indecency. This judge is witty but not kidding.
“Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned.”
Signing off, he wrote: “With a judicial finger in the constitutional dike.”
Also last week, another federal judge, Ana Reyes, felt the need to hold the Trump administration accountable when she found it claiming one thing to end Temporary Protected Status (TPS) for Haitians and spewing another thing to vilify Haitians in flagrant efforts to talk out of both sides of foul federal mouths.
She too provided an unsolicited history lesson: “On Dec. 2, 1783, then-Commander-in-Chief George Washington penned: ‘America is open to receive not only the Opulent & respected Stranger, but the oppressed & persecuted of all Nations & Religions.’
“More than two centuries later, Congress reaffirmed President Washington’s vision by establishing the Temporary Protected Status (TPS) program. It provides humanitarian relief to foreign nationals in the United States who come from disaster-stricken countries. It also brings in substantial revenue, with TPS holders generating $5.2 billion in taxes annually.”
The judge introduced the five Haitian TPS holders who had filed suit. Department of Homeland Security (DHS) Secretary Kristi Noem said publicly of Haitians that they should not have protective status because they are “killers, leeches, or entitlement junkies.” Turns out the five are: a neuroscientist researching Alzheimer’s disease, a software engineer at a national bank, a laboratory assistant in a toxicology department, a college economics major, and a full-time registered nurse.
Judge Reyes found that it “seems substantially likely that Noem “preordained her termination decision and did so because of hostility to nonwhite immigrants.” DHS sought to terminate protective status because conditions in Haiti are merely “concerning” and that harm to the Haitians if returned is speculative. For some reason, the Trump administration included in its briefs the State Dept’s travel warnings.
[Click here for the full Haiti travel warnings.]
The judge noted that ‘Do not travel to Haiti for any reason’ “does not exactly scream, as Secretary Noem concluded, suitable for return.” Oops. Caught between a rock and a hard place to survive.
The judge also questioned the Trump administration’s policy complaints; the strains unlawful immigrants place on our immigration-enforcement system. The government’s answer? Turn 352,959 lawful immigrants into unlawful immigrants overnight. The complaints of strains to our economy. The answer? Turn employed lawful immigrants who contribute billions in taxes into the legally unemployable. The strains to our healthcare system. The answer? Turn the insured into the uninsured.
“This approach is many things,” the judge concluded—”in the public interest is not one of them.”
Then there’s Federal Judge April M. Perry who addressed the deployment of National Guard troops from Illinois and Texas over the objection of Illinois’ governor.
Federal agents had informed local police in the Chicago suburb that of Broadview that they should prepare for an increase in the use of chemical agents and ICE activity and that it was “going to be a shitshow.” The parties had divergent takes on what was occurring on the ground. The judge tried to tease out the truth. She noted “a troubling trend of Defendants’ declarants equating protests with riots and a lack of appreciation for the wide spectrum that exists between citizens who are observing, questioning, and criticizing their government, and those who are obstructing, assaulting, or doing violence.”
“The lens through which we view the world changes our perception of the events around us,” she reasoned. Law enforcement officers who go into an event expecting ‘a shitshow’ are much more likely to experience one than those who go into the event prepared to de-escalate it…This indicates to the Court both bias and lack of objectivity.”
The final straw for the judge was to remind the Trump lawyers who’d repeatedly referred to the idea that protestors who wear gas masks are demonstrating a desire to do physical violence to law enforcement, even when pressed by the Court that masks are protective equipment, not offensive weapons.”
Presumably, she added, Trump’s lawyers don’t believe that the CBP officers who have engaged in street patrols in and around Chicago are also demonstrating a desire to do physical violence, though they are both wearing masks and carrying weapons. Additionally, the judge noted that despite the claim that protestors are wearing gas masks, most of the photos submitted by agents showed protesters wearing Covid-19 masks.
Let’s not leave out Federal Judge Robert Gettleman who addressed the conditions in the ICE detention facility in Broadview. He described conditions for detainees as “sleeping shoulder to shoulder next to filthy toilets that are overflowing, surrounded by human waste. It’s just unacceptable.”
We take you now across the country to Portland, Oregon and Federal Judge Karin J. Immergut who took judicial notice that in Sept. 2025, Trump posted a message on his Truth Social account stating that he was directing Pete Hegseth, the Secretary of War, to provide troops to protect “War ravaged Portland” from “Antifa, and other domestic terrorists” and authorizing “Full Force, if necessary.”
She concluded: “This country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs…This historical tradition boils down to a simple proposition: this is a nation of Constitutional law, not martial law. Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of this nation.”
For now, we’ll give Federal Judge William Young the last words. A good thing too because his opinion ran 161 pages. Ostensibly the case was about the deportation of non-citizen activists at colleges.
Judge Young wrote that Trump “ignores everything…The Constitution, our civil laws, regulations, mores, customs, practices, courtesies – all of it; the President simply ignores it all when he takes it into his head to act.”
The judge apparently had been holding it in: “While the President naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience. What he will not countenance is dissent or disagreement.”
“From the start of his political career, demonizing immigrants has been Trump’s stock in trade. Since his return to office, he has been unusually aggressive in his campaign to round up, detain and deport people whose citizenship status is questionable, and, in some cases, citizens have been caught up in the dragnet. The administration has repeatedly violated the constitution by targeting people because of how they look or the sound of their accents. It has even singled them out because of what they have said or written.”
Since I wrote this, yet another case coursed through the courts.
Federal Judge Richard J. Leon barred Defense Secretary Pete Hegseth from enforcing a censure against Kelly over comments that the Arizona Democrat made in a social media video that reminded service members that they can refuse illegal orders.
“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” Judge Leon wrote in a 29-page opinion.
He continued, “Rather than trying to shrink the First Amendment liberties of retired service members, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!”
The judge threw hypocrisy right back in the faces of Trump and his team by citing remarks from a speech Hegseth gave in 2016: “If you’re doing something that is just completely unlawful and ruthless, then there is a consequence for that. That’s why the military said it won’t follow unlawful orders from their commander in chief. … There’s a belief that we are above what so many things that our enemies or others would do.”
In case you’re curious or conspiratorial, the judges, in order of appearance in this essay, were appointed to the federal bench by…Presidents Clinton, Reagan, Clinton, Biden, Biden, Clinton, Trump, Reagan and George W. Bush.
The MAGA right likes to invoke “Trump Derangement Syndrome” to call out negative reactions to Trump, his policies and his cronies. Trump likes to say he tells it like it is.
Thankfully, there are still judges who recognize wherein the derangement syndrome lies and who are willing to tell Trump and his team that what they do is tell it like they don’t care what is. What they actually tell is whitewash.
They the judges and we the people are all that are left to hold them accountable.
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