Madsplaining: The Justiciability Debate
The rise of the black robes and separation of powers
“Non-justiciable” definitely wins Word of the Week. Let’s back up a bit. President Trump has been signing executive orders left, right, and center, and lawsuits against them are piling up. The latest high-profile clash between the executive and judiciary has sparked a debate over separation of powers—who has the final say?
The Case: Trump invoked the Alien Enemies Act of 1789 to deport members of the Venezuelan gang Tren de Agua (TdA). Critics questioned whether the lack of due process was a drag net which would catch innocent people. They pondered the fairness of sending gang members to third countries, and whether TdA even qualifies as an “invasion.” (El Salvador’s President Bukele was happy to host them in his dedicated gang prisons but Venezuela decided yesterday that it will start to take its citizens back after all..)
The Clash: As deportation flights were mid-air, U.S. District Judge James Boasberg issued a restraining order, demanding the planes return. The White House ignored him. The judge then ordered that sensitive information about the planes and their passengers be handed over.
The Debate: Trump advisor Stephen Miller fired back: Can a single judge override foreign policy? He argued the president’s actions were “non-justiciable”—beyond judicial authority. “President Trump and Secretary of State Marco Rubio had engaged in intensive diplomacy to obtain a bilateral security agreement with the nation of El Salvador. If a district court judge can enjoin that bilateral security agreement, then we do not have a democracy”, Miller said.
The Fallout: Trump called for Judge Boasberg’s impeachment, prompting Chief Justice John Roberts to defend the judiciary, saying impeachment isn’t how legal disputes should be handled. President Trump has said he is determined to ultimately send the case to the Supreme Court.
The conversation about separation of powers is going public and it may be overdue. Activist judges have not been shy about issuing national injunctions that tread on the toes of the other branches —like blocking Trump’s ban on transgender military service. The government is formed from co-equal branches. We have grown used to the unspoken assumption that they are hierarchical.
Scripture teaches that rulers are meant to punish evil and uphold justice, yet right now, we see lawfare replacing lawfulness and judicial activism overriding elected leadership. America’s foundations rest on ordered liberty, not rule by unelected elites. So we must pray for wisdom for leaders – government exists under God’s authority—it’s not ultimate. Whether the courts remember that or not, we must.