As Republicans look for ways to rein in federal judges issuing countless orders to halt the Trump administration’s action on immigration in particular, a number of potential avenues for doing so are being considered.
However, the use of a key budget process that lowers the Senate’s threshold to 51 votes to defund certain courts could face significant obstacles.
Rep. Chip Roy, R-Texas, House Freedom Caucus policy chair and chair of the House Judiciary Committee’s subcommittee on the Constitution, told Fox News Digital he isn’t ‘for or against’ any specific approach to addressing the countrywide injunctions that are throwing a wrench into President Donald Trump’s priorities.
‘We ought to look at [impeachment], we ought to look at jurisdiction-stripping, we ought to look at every option that needs to be addressed about judges that are actively taking steps to try to undermine the presidency,’ he said.
The Republican added, ‘I think there are pros and cons of those approaches. I think we need to look at … funding scenarios. Now that takes a little time; you’ve got to work through either the appropriations, rescissions or reconciliation process, depending on where it’s appropriate.’
The budget reconciliation process lowers the threshold for Senate passage from 60 votes to 51 out of 100, allowing the party in power to more easily advance its agenda with no opposition party support. However, the provisions must relate to budgetary and other fiscal matters. The House of Representatives already has a simple majority threshold.
The process is being relied on heavily by Republicans, who have a trifecta in Washington, in order to push through Trump agenda items.
In the months since Trump took office, his aggressive pace has been somewhat hampered by federal judges across the country issuing numerous orders to halt immigration, waste-cutting and anti-diversity, equity and inclusion actions.
This has prompted Republicans to call for action against what they consider abusive actions by lower-tier federal judges.
‘I don’t think defunding is a viable option,’ said Andy McCarthy, a former assistant U.S. attorney and a Fox News contributor.
‘The chief justice would be angry that the district courts were understaffed, and Trump wouldn’t get away with later trying to add the positions back so that he could fill them,’ he continued.
Former Deputy Assistant Attorney General John Yoo called potentially defunding the courts that have been causing problems for the administration ‘a terrible idea.’
‘It would make no difference anyway; the cases challenging Trump’s executive orders would still be challenged in the courts that exist,’ he explained.
This was echoed by former Trump attorney Jim Trusty, who said, ‘I don’t think defunding an already overworked judicial system would be right or effective.’
Because of the specific guidelines for what can be included in reconciliation bills, legal experts seem to be in agreement that defunding courts wouldn’t meet the requirements.
One such expert told Fox News Digital that not only does the provision need to have a federal fiscal impact, the policy effect cannot outweigh that impact.
They further noted that the Senate’s parliamentarian would be the one to make a judgment on this.
Trusty said ‘the solution to judicial activism’ is either the appellate courts finding ways to stop the injunctions on appeal or by direct orders, or ‘Congress develops a nimble response and passes legislation to clarify their intent to let the executive branch act without judicial tethers on various issues.’
‘The better option would be to explore ways to limit the jurisdiction of the lower courts or to fast-track appeals when they try to issue nationwide injunctions,’ McCarthy said.
As for potentially impeaching federal judges, which has been floated by Trump himself, Trusty said it ‘should still be viewed as a prosecution substitute for office holders who have committed treason or high crimes and misdemeanors; in other words, serious crimes.’
‘Bad judgment and wrong-headed decisions are not crimes,’ he noted.
Neither Trump’s White House nor Republican leadership in Congress have indicated plans to pursue the issue through the reconciliation process.
Lawmakers have acknowledged the problem, though, and the House is set to take up legislation to address the judges’ actions next week.