When Judges Become Lawmakers and Presidents Play Judge

When institutions are no longer constrained by mutual trust or restraint, even legitimate constitutional arguments become engulfed by partisan suspicion.

Photo by Sasun Bughdaryan on Unsplash

Donald Trump’s second term began with big presidential promise to reassert national US sovereignty by taking bold, unapologetic action on illegal immigration. His message was clear, that under his watch, the era of porous borders, bureaucratic dithering, and judicial second-guessing would end. The administration cast itself as the final bulwark against a rising tide of criminality, claiming that too many undocumented immigrants had slipped through the cracks of a system paralysed by political correctness and legal obstruction. This is what Americans voted for and Trump is keeping his promise.

It is not an insignificant fact that many Americans, particularly those in working-class and rural communities, feel abandoned by an immigration system they perceive as chaotic, porous, and unfair. To them, Trump's policies represent a long-overdue correction. The emphasis on law and order, national identity, and secure borders strikes a chord with citizens who believe that elite institutions, courts included, are often out of touch with the costs of unregulated migration.

But the specific story of Kilmar Ábrego García is not simply about immigration, nor is it merely a dispute over due process. It is, at its heart, a sobering story of a constitutional order under strain and a vivid illustration of what happens when mutual institutional respect collapses in favour of ideological brinkmanship.

For those unfamiliar with the details, Ábrego García, a Salvadoran national residing in Maryland, was deported by U.S. immigration authorities in early 2025, despite a standing federal court order temporarily halting his removal. The US government now faces mounting legal pressure to comply with orders for his return, orders the Trump administration appears unwilling to obey. Vice President J.D. Vance openly acknowledged the administration's willingness to ignore” court rulings it deems “unconstitutional. Donald Trump himself has offered little contrition, saying it is a necessary assertion of executive resolve.

To many in the administration and its support base it is a defence of the executive's core mandate and fulfilment of its policy promises. If the elected government cannot act decisively on a matter of border enforcement and national security, then what becomes of democratic legitimacy? For them, the courts are not simply applying the law but they are interfering in a sphere that properly belongs to the political branches.

Now, it is tempting, especially for Trump critics, to treat this incident as proof of authoritarian ambitions. And to be fair, the disregard for lawful court orders is not something a constitutionalist can dismiss lightly. But this is also one of those unsettling cases where more than one thing can be true at the same time.

Yes, the Trump administration’s posture towards the judiciary is troubling. It smacks of a selective respect for the rule of law, respect when rulings align with policy, resistance when they do not. Such pick-and-choose constitutionalism is dangerous regardless of who practices it. South Africans learned this the hard way during the Zuma years, when executive contempt for court rulings eroded public trust and invited systemic decay.

Yet it is equally true that certain American courts have developed an expansive appetite for intervention in executive policy. Over the past decade, the US has seen a pattern emerge in which politically sensitive matters, from immigration enforcement to federal DEI programmes, are met not merely with judicial scrutiny but outright judicial obstruction. In some cases, courts have gone so far as to order federal agencies to reinstate policies that the elected executive has expressly repealed. And policy making is not the competence of the courts.

This reinforces a growing perception that courts are becoming participants in the ideological contest rather than neutral umpires. When judges move beyond interpreting the law to advancing particular visions of social justice, they invite backlash not only from the executive but from citizens who feel that their votes are being overridden by unelected elites.

For example, a federal court ordered the Biden-era transgender health content to be restored to official government websites after it was removed by the Trump administration. Other rulings have blocked the shutdown of diversity, equity, and inclusion (DEI) initiatives in federal departments even where the executive possesses clear statutory discretion. This is similarly the case when conservative judges are seen to advance a partisan agenda, whether on abortion, religious expression, or gun rights, through judicial activism that stretches or selectively interprets legislation. In both instances, the bench risks transforming into a battleground for political ideas rather than a forum for legal adjudication, eroding public trust in its impartiality. If judges can routinely override the policy decisions of elected officials, what becomes of democratic accountability? It need not be reminded that courts are not elected. But governments are elected based on the policy promises they make.

To be clear: this is not an apologia for the executive branch thumbing its nose at the courts. Nor is it an endorsement of an imperial judiciary. It is an appeal for constitutional humility from both sides.

It is worth noting that criticism of the Trump administration has come not only from progressive judges, but from Republican-appointed ones too, including jurists appointed by President Reagan. Their rebuke matters. It reminds us that fidelity to constitutional norms is not a partisan project. When a court speaks with legal clarity, especially on questions of due process and individual liberty, the executive should comply, not equivocate.

But there is also a broader context that cannot be ignored. The American judiciary has increasingly evolved from a largely interpretative branch to an assertive actor with ideological overtones. Some judges increasingly see themselves as stewards of moral progress or social justice rather than arbiters of law. This is not unique to the U.S. South Africa has faced a similar phenomenon.

Consider how often South African courts invoke the concept of “transformation”, a word that appears nowhere in the Constitution’s founding text—yet has become a meta-principle shaping everything from economic policy to university admissions. Transformation is not necessarily illegitimate, but when it is treated as a constitutional imperative rather than a political goal subject to electoral debate, we blur the line between judicial reasoning and political activism.

The risk, in both nations, is the same. That courts become policymakers in robes, and executives become outlaws in suits.

A healthy democracy requires a clear division of powers. Legislators make the laws. Executives implement them. Courts interpret them. The temptation, especially in a polarised society, is for each branch to start doing the others’ work either from suspicion or ambition. But when that happens, the system begins to cannibalise itself. When institutions are no longer constrained by mutual trust or restraint, even legitimate constitutional arguments become engulfed by partisan suspicion. And when that happens, neither side can claim innocence.

In South Africa, we should view this as more than a foreign curiosity. We know the consequences of unchecked executive power. But we must also guard against a judiciary that sees itself as a surrogate for electoral will. Judicial overreach and executive overreach are not opposites, they are often twins.

But what is the way forward? Constitutional modesty. Executives must govern within the law, even when it is inconvenient. Courts must interpret the law within its limits, even when broader social goals beckon. And citizens, whether voters, activists, or columnists, must resist the urge to defend constitutional breaches when committed by their side.

Daniël Eloff is a South African attorney who gives legal advice by day and unsolicited opinions by night. Writes about law, liberty, and what keeps society decent.