At an Easter celebration on 1 April, US President Donald Trump, having just been, earlier that day, the first president to attend a Supreme Court argument, attacked the court’s Republican justices. He said he expects Democrat-appointed judges to oppose him: “You can have a case where the person you're suing admits they're guilty and if you're in front of a Democrat judge, he'll overturn.” A Republican judge has a different agenda. A Republican judge or justice will say, “I don’t care if Trump appointed me. … I’m voting against him.” Why? “Because they want to show their independence. Stupid people.”
SIGnal has been arguing since the beginning of the second Trump administration (see “The Importance of Ideology,” 22 Feb. 2025; “Peak Trump – 2 of 4,” 27 Jan. 2026) that its core goal is to alter the domestic balance of power in favor of the White House and at the expense of Congress and the courts. Judicial independence is nonetheless a basic constitutional principle. “The complete independence of the courts of justice is peculiarly essential,” Alexander Hamilton wrote in 1788 (Federalist 78). He cited Montesquieu: “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”
The current administration’s opposition to judicial independence is not about the economy, but it definitely has economic implications for investors. So it is worth taking a moment to look at why we are where we are.
The English have long taken pride in having an unwritten constitution, seeing it as more open to change as society evolves and as evidence of a society that is able to cohere without having all its rules written down. The contrasting case is an 18th-century collection of colonies, strange, fractious, and diverse in every way, known as the United States, that had to write down its constitution — an innovative approach at the time, later much copied — because it probably wouldn’t have been able to hold itself together otherwise. The US constitution laid out the respective powers of the executive, legislative, and judicial branches with the idea that they would balance each other. The enumeration of each branch’s powers was expected to make the political system relatively stable. That stability was in turn thought to mean that the laws would be fairly applied and widely respected, which would ensure that contracts could be enforced and “the pursuit of property” enabled.
It worked well, but the domestic balance of governing powers was never all that stable. There was a written Constitution, but there was also an unwritten one, subject to change. For example, in the 70 years between revolution and civil war a president could not get far on foreign policy without the very active support of Congress. He certainly could not start wars. That then slowly changed. By contrast, as the responsibilities and activities (and revenues) of the federal government grew in the early 20th century, and executive agencies were created to carry out those activities, the enumerated power of Congress to control federal expenditure (“power of the purse”) was applied to a vast new territory of federal effort that was in one sense directed by Congress, in another sense by the president as executive, and in some ways just directed itself. The Federal Reserve Board is an example.
This was the advent of the “administrative state,” seen by some as necessary for effective governance in a modern economy, seen by others as an unnecessary bureaucratic layer infringing human liberty. In the ensuing century-long battle between the executive and legislative branches for control of the administrative state, the advantage has often been with Congress because it had the power of the purse. The first Trump administration accordingly took aim at that power, without much success. The second one has done better.
The second and final post will look at how the executive has gained power over the legislative branch in the current presidential administration.