Many are asking if federal judges can be impeached as a consequence of judicial activism, deciding a case based on their personal preferences rather than what is stated in the Constitution, statutes, and applicable precedent and in usurpation of legislative and executive power. The answer is yes.
A series of extreme and activist decisions against President Donald Trump’s constitutional authority exercised through the Department of Government Efficiency and his appointees such as Elon Musk have brought the question to the fore.
But Article II, Section 1, Clause 1 of the Constitution unambiguously states, “The executive Power shall be vested in a President of the United States of America.” In explaining what’s also known as the “vesting clause,” White House deputy chief of staff Stephen Miller said, “A president is elected by the whole American people. He’s the only official in the entire government elected by the entire nation. Judges are appointed. Members of Congress are elected at the district or state level.”
As Miller put it, “The threat to democracy — indeed, the existential threat to democracy — is the unelected bureaucracy of lifetime, tenured civil servants who believe they answer to no one, who believe they can do whatever they want without consequence, who believe they can set their own agenda no matter what Americans vote for.”
So, you can see why conservatives are disturbed several judges went beyond their constitutional powers in constraining Trump and other executive branch officials from exercising legitimate constitutional powers, such as firing bureaucrats and making sure tax money isn’t being spent corruptly.
In an unprecedented usurpation of presidential prerogative, U.S. District Judge Amy Berman Jackson ruled that the administration must reinstate Office of Special Counsel head Hampton Dellinger. Outrageously, this Obama judge ruled Trump may not “recognize the authority of any other person as Special Counsel.”
The Supreme Court has left this order in place, but Supreme Court Justice Neil Gorsuch, joined by Justice Samuel Alito, dissented from this inaction, writing that “by the 1880s this Court considered it ‘well settled that a court of equity has no jurisdiction over the appointment and removal of public officers.’”
But the Supreme Court is not the only constitutional check on activist judges. The framers of the Constitution addressed concerns about a judicial department that abuses power by pointing to the constitutional check on any such abuse: the “complete security” of impeachment.
In persuading the people to ratify the Constitution, Alexander Hamilton explained in Federalist Papers: No. 81 that while the judiciary may occasionally encroach upon legislative authority, its “comparative weakness” and “total incapacity to support its usurpations by force” limits the danger. He added that this is “greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security.”
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The use of the impeachment power to restrain judicial department usurpations has essentially lain dormant in Congress since 1804, when Supreme Court Justice Samuel Chase was impeached by the House for, among other alleged misconduct, “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.” Ultimately, however, Chase was acquitted by the Senate.
That dormancy may end in the coming days. House members led by Rep. Derrick Van Orden (R-WI) filed a bill in February to impeach Southern District of New York Judge Paul Engelmayer, an Obama appointee who last month issued an order blocking DOGE access (and even the treasury secretary’s access!) to the Treasury Department system for government payments.
Tom Fitton is president of Judicial Watch.