How Congress Can Rein In Rogue Federal Judges

Federal judges are only allowed to wear one hat: the judge hat. But all too often, judges are found wearing the president’s hat, or one belonging to a congressman. 

On Jan. 31, 2026, Judge Fred Biery, of the Western District of Texas, demonstrated this trend with modern federal judges. He issued an opinion lobbing broad accusations of “ill-conceived and incompetently-implemented government pursuit of daily deportation quotas,” but did so without any reference or citation to the record of the case in front of him. He went on to quote Thomas Jefferson, the Fourth Amendment, and the Bible, but provided no application as to how they are relevant to the matter at hand, again because he cited no details whatsoever about the case in front of him. He stated broadly that “administrative warrants issued by the executive branch to itself do not pass probable cause muster,” without citing a single case or authority to support that proposition.  

This example is about as egregious an example of judicial overreach as one will find. It is an effort to subvert federal immigration policy, which is a function explicitly given under the Constitution to Congress, which delegated the application to the executive branch’s Department of Homeland Security (DHS). Judge Biery, instead of citing the portions of the Constitution that address immigration or federal laws that detail immigration protocols, simply declared that deportations cannot occur under the processes created by DHS, thereby taking away powers vested in both Congress and DHS.  

This trend is all too common with the modern federal judge. The poster child is James Boasberg, who also has put on his legislative and executive hats, instead of just being a judge. From blocking deportation flights — a power vested with the president to control and direct foreign policy and national security concerns — to signing off on subpoenas that likely violated the speech and debate clause rights of members of Congress, Judge Boasberg, too, has subsumed the powers of government that do not belong to him.  

In one case he continued a contempt proceeding even after the case in front of him was declared, by the Supreme Court, to not be within his jurisdiction. The appellate court had to step in, stating that Boasberg “raises troubling questions about judicial control over core executive functions like the conduct of foreign policy and the prosecution of criminal offenses” and that he “implicates an unsettled issue whether the judiciary may impose criminal contempt for violating injunctions entered without jurisdiction.” 

The examples of judges exceeding their authorized powers could consume the word limits of many op-eds, but these two illustrate the point. One might wonder: Why can these judges ignore the law, or even the Supreme Court, and face no consequences? The answer is federal statute. 

The law that creates the process for disciplining federal judges explicitly states that any complaint against a judge “directly related to the merits of a decision or procedural ruling” is to be dismissed. Thus, judges, in essence, have immunity for anything they put into a decision or order. This statute was specifically referenced in a pair of decisions declining to investigate disciplinary complaints against Judge Boasberg, for example.  

This is quite the protection for an individual with a lifetime appointment and who was never democratically elected. In theory (or practice?), a judge could look at the Constitution itself and decide he or she does not like the plain meaning of an article or amendment, and issue a ruling that would hold otherwise.  

This is a problem. Judges need accountability. While Congress could impeach a judge, that serves as little deterrent for a judge, given that two-thirds of the Senate would have to vote to remove the judge. In today’s politicized environment, actual consequences in the form of removal are nearly impossible. This is by design to protect the independence of the judiciary. Removal is a serious consequence. 

But intermediate forms of discipline should be on the table too. The impeachment process provides no intermediate form of discipline, but under the federal statute, judges can have consequences such as censuring or having no cases assigned to them. On the other hand, the federal statutes do not permit removal. So, the independence of the judiciary can be maintained, even if judicial discipline is made possible for bad rulings. 

It is time for Congress to rethink its federal statutes that govern the discipline of judges. It should remove protection for judges who ignore the Constitution, federal law, or the Supreme Court, or operate outside of their authority. It should allow citizens to have an avenue to complain when egregious behavior comes from the federal bench. 

Curtis Schube is the executive director of the Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.