Judicial Insurrection: The Obama Judge Usurping The Power Of The Purse

The Constitution vests the power of the purse in Congress, not the courts. This is not a controversial proposition. Even a mediocre high school civics class could recite it by rote. Yet on the eve of our nation’s independence celebration, in a courtroom in the District of Massachusetts, that foundational principle was unceremoniously tossed aside by a single federal judge. In Planned Parenthood Federation of America, Inc. v. Kennedy (1:25-cv-11913), Judge Indira Talwani, an Obama appointee, issued a temporary restraining order commanding the Trump administration to disburse funds to Planned Parenthood in direct contravention of a duly enacted appropriations statute.

Let that sink in. Congress passed a law. The president signed it. And a single unelected judge declared herself the final arbiter of federal spending. That is not judicial review. That is judicial rebellion.

Before we delve further, let us clarify the stakes. This is not a routine disagreement over statutory interpretation. It is not a challenge to the executive’s discretion in administering a complex regulatory scheme. This is a court ordering the executive to spend money that Congress explicitly withheld. It is the very scenario the framers feared: an unelected judiciary substituting its will for the people’s representatives.

To grasp the constitutional chasm Judge Talwani has leapt across, recall the fundamental structure of our republic. Congress writes the laws. The president executes them. The judiciary interprets them. These are not arbitrary lines. They are structural safeguards. The framers vested the power of the purse in Congress because it is the most democratically accountable branch. Appropriations require bicameral agreement and presidential assent. It is a process designed to ensure consensus and deliberation before taxpayer money is spent. The judiciary has no seat at this table.

Yet in issuing her TRO, Judge Talwani has seized a power explicitly denied to her. She has ordered the executive branch to violate the very law it is sworn to uphold. That is not interpretation. It is usurpation.

And it is not merely bad law. It is bad faith. There is no plausible reading of the appropriations statute at issue that supports the court’s conclusion. This is not a close case. The text is clear. The legislative history is dispositive. The administration’s compliance was mandatory. In defiance of all this, the court has manufactured a non-existent right to funding and enshrined it as constitutional dogma.

Where does this idea come from, that Planned Parenthood enjoys an entitlement to federal dollars regardless of congressional will? Not from the Constitution. Not from precedent. It is conjured from the mists of policy preference. It is the jurisprudence of “I like this group, therefore it must be funded.”

To be sure, the judiciary has, on rare occasion, enjoined executive action where it contradicts statutory mandates. But never has it commanded the executive to spend money in contravention of Congress. One cannot find a Supreme Court decision affirming such authority, for the simple reason that such authority does not exist.

There is a word for this sort of judicial behavior: resistance. And in recent years, it has become distressingly common. We saw it when district courts suspended Trump-era executive orders without legal basis, crafting national injunctions that stretched the boundaries of Article III. But even those excesses pale in comparison to what has occurred here. For those involved in appropriations law, this is the crossing of the Rubicon.

The apt term is judicial insurrection. Not in the overheated partisan sense the media tosses about, but in the sober constitutional sense. A judge who substitutes her policy preferences for the law, who commands the executive to violate a statute, is not engaging in interpretation. She is engaging in rebellion. A rebellion in a robe.

And the appropriate remedy is not merely appellate reversal. It is reassignment.

This idea is not mine, though I wish it were. It was first suggested by Michael A. Fragoso, a partner at Torridon Law and former chief counsel to Senate Republican Leader Mitch McConnell. Fragoso, once hilariously described by Chuck Schumer as “that very capable young lawyer with an Italian name,” knows his constitutional architecture. He points to a legal mechanism that exists precisely for moments like this: judicial reassignment.

Reassignment is not recusal. It is not punitive. It is an administrative tool available to appellate courts to ensure that cases are decided by judges willing to follow the law. As detailed in a seminal Stanford Law Review article, reassignment is an established remedy used when a judge displays either bias or entrenched resistance to appellate authority. It is forward-looking, not backward-punishing. And it has been employed in every federal circuit.

This is not about politics. Reassignment has been used by liberal panels against liberal judges and by conservative panels against conservative judges. The point is not ideology. It is fidelity to law.

In this case, Judge Talwani has not merely erred. She has signaled that she will continue to do so. Her order reflects not a mistaken reading of the statute, but a categorical refusal to accept that Congress has the power to defund her preferred NGO. That refusal is grounds for reassignment. There is no reason to believe that, on remand, she will suddenly adopt a more modest view of her own power. She has declared war on the appropriations process. And the appellate courts must act accordingly.

Some will argue that reassignment is a drastic measure. It is. But so is a court order commanding the executive to violate a statute. The separation of powers is not a trifle. It is the architecture of liberty. When judges demolish that architecture, the judicial branch must supply the scaffolding to repair it.

Moreover, the District of Massachusetts, where this case was filed, has a local rule presuming reassignment following reversal. The mechanism is there. The Supreme Court has acknowledged the power. And the facts of this case scream for its exercise.

This is not merely about Planned Parenthood. It is not about abortion. It is about whether the courts are bound by law, or whether they may replace it with preference. If the latter, we are no longer a republic. We are a juristocracy.

There are moments in our constitutional life when the ordinary tools of appellate review are insufficient. When error shades into defiance. When interpretation becomes insurrection. This is such a moment.

The remedy is clear. Reverse the TRO. Reassign the case. And restore the rule of law.

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