Alan Dershowitz weighed in on Fox Business Friday on the ongoing battle between the executive and judicial branches of government, saying that President Donald Trump now has the legal authority to disregard certain injunctions issued by liberal judges.
During an appearance on “The Evening Edit,” Dershowitz discussed the two potential paths the Trump administration could take in response to judicial overreach. Dershowitz said individual judges cannot impose such sweeping restrictions on presidential actions.
“There are two things that could happen. One, the administration could go in front of these judges and say ‘Look, withdraw your opinion. You are now in violation of the Supreme Court.’ That’s one possibility. That’s what I would advise. The other possibility is for the administration simply to ignore these injunctions and say they’re no longer operative,” Dershowitz told host Elizabeth MacDonald.
Dershowitz said that the United States is witnessing a heightened clash between the judiciary and the executive, with Trump pushing the boundaries of presidential authority further than any predecessor since Franklin D. Roosevelt.
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“Sure, they control the particular litigants in the case, but we’re not going to be bound by them because the Supreme Court has said that single justices, judges don’t have the authority to bind the administration. Look, we live at a time when there is a battle between the judiciary and the executive. President Trump has pushed the envelope further than any president since Franklin Delano Roosevelt,” Dershowitz said.
Dershowitz said that while it’s not surprising that Democrats would push back against the executive, it’s crucial to remember that just because one branch believes the executive has exceeded its constitutional power, it doesn’t justify the judiciary exceeding its own. (RELATED: Alan Dershowitz Says He’s Certain How Supreme Court Will Rule On Woke Curriculum And Parents’ Rights Case)
“So it’s not surprising the Democrats would respond by pushing the envelope. But, as Justice Barrett said, just because you think the executive has exceeded their constitutional power doesn’t mean the judiciary should exceed its judicial power. Both branches of government have to remain within their constitutional constraints,” Dershowitz said. “That’s what the separation of powers and checks and balances means. So this is a very good decision. ”
Justice Ketanji Brown Jackson said that the majority’s decision posed an existential threat to the rule of law, while Justice Amy Coney Barrett countered, saying Jackson’s position would make even the staunchest defenders of judicial supremacy uneasy.
“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Barrett wrote in the majority opinion. “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
CASA, Inc., an immigrant advocacy organization, filed a lawsuit against Trump’s executive order terminating birthright citizenship and said the order violated the 14th Amendment’s Citizenship Clause. Trump’s order sought to end automatic citizenship for children born in the U.S. to undocumented immigrants, a move CASA, Inc. deemed unconstitutional.
The case centered on whether the Supreme Court should block the district courts’ nationwide injunctions against the order. The Court had a split decision, with six conservative justices siding with Trump and three liberal justices supporting CASA, Inc.
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