WASHINGTON — Facing pressure from his right flank to take on judges who have ruled against President Donald Trump, Speaker Mike Johnson, R-La., on Tuesday floated the possibility of Congress eliminating some federal courts.
It’s the latest attack from Republicans on the federal judiciary, as courts have blocked a series of actions taken by the Trump administration. In addition to funding threats, Trump and his conservative allies have called for the impeachment of certain federal judges who have ruled against him, most notably U.S. District Judge James Boasberg, who attempted to halt Trump from using the Alien Enemies Act to deport Venezuelan migrants.
“We do have the authority over the federal courts, as you know. We can eliminate an entire district court. We have power of funding over the courts and all these other things,” Johnson told reporters on Tuesday. “But desperate times call for desperate measures, and Congress is going to act.”
Johnson, a former constitutional attorney, later clarified that he was making a point about Congress’ “broad authority” over the “creation, maintenance and the governance” of the courts. Article III of the Constitution established the Supreme Court but gave Congress the power to “ordain and establish” lower federal courts.
Congress has eliminated courts in the past. In 1913, for example, Congress abolished the Commerce Court and its judges were redistributed to the federal appeals court, according to Congress.gov. And in 1982, Congress passed legislation abolishing the Article III Court of Claims and U.S. Court of Customs and Patent Appeals, and established the Article I Court of Federal Claims and the Article III U.S. Court of Appeals for the Federal Circuit.
House Judiciary Chairman Jim Jordan, R-Ohio, who plans to hold a hearing focused on Boasberg and district judges next week, said he’s speaking with GOP appropriators about what he called “legislative remedies.”
“We got money, spending, the appropriations process to help try to address some of this,” Jordan said, without adding further details.
Attempts to defund courts will be a major flashpoint in bipartisan funding negotiations for the next fiscal year. But Republicans are a long way from making good on these threats.
First, they would need to convince powerful senior appropriators to strip funding for certain courts in their funding bill, in this case the Financial Services and General Government appropriations bill that funds the lower courts.
But the appropriations subcommittee that oversees that funding bill is chaired by Rep. Dave Joyce, R-Ohio, a former prosecutor, self-described pragmatist and one of the more moderate members of the House GOP conference.
On top of that, House Republicans would need near-unanimous agreement to pass a funding bill that defunded some courts on the floor, which would be a difficult feat given their narrow majority.
The Senate also would almost certainly reject any funding bill or package that defunded the courts. To pass it, Senate Republicans would need at least seven Democrats to join them to defeat a filibuster. And some Republicans might vote against such a proposal.
Sen. Josh Hawley, R-Mo., said eliminating a district court would create “massive, massive backlogs”
“My view is, I’d like to get more Republican judges on the bench,” Hawley said. “If we take away seats, we can’t do that.”
House and Senate appropriators will be working to pass 12 funding bills before the next government shutdown deadline, at the end of the fiscal year on Sept. 30.
Despite Tuesday’s remarks, Johnson appears to be focused on a middle path to push back on federal rulings against Trump as some GOP hard-liners push for impeachment votes against some judges.
In addition to the House Judiciary Committee’s upcoming hearing, Johnson said the House will vote next week on a bill from Rep. Darrell Issa, R-Calif., that would bar district court judges from issuing nationwide injunctions.
“The judges, especially we’re talking about district court judges, are overstepping their boundaries,” Rep. Tim Walberg, R-Mich., a Johnson ally, told NBC News. “Absolutely, I appreciate” the Issa bill, he added, “and I may go for more, but right now, that’s where I stand.”
