Judges Without Jurisdiction: When “Case or Controversy” Becomes Casualty
Judge Karin Immergut’s injunction against the administration’s use of the National Guard in Oregon will be praised as an act of courage. In truth, it’s another display of judicial confusion about the limits of Article III power. Her order didn’t just decide a dispute between parties. It imposed a judicial veto on executive authority far beyond the controversy before her court.
The President attempted to federalize Guard units to stabilize unrest in Portland. Oregon sued. That’s a legitimate conflict for a court to hear. But Immergut went further. She barred the deployment of any Guard troops to Oregon—including those from California or other states—on the theory that the executive might use them to “circumvent” her order. That step crossed the boundary between adjudication and policymaking. Judges are supposed to interpret law, not anticipate future maneuvers or supervise the conduct of government as if they sit atop a standing committee of oversight.
Article III’s “case or controversy” requirement is more than a formality. It’s the architecture of judicial restraint. A court’s authority exists only so long as there is a live dispute anchored to facts and parties. Once a judge begins issuing prophylactic commands to prevent possible scenarios, she is no longer applying the law—she is writing it.
This tendency has spread through the lower courts like ivy on old stone. A single district judge now feels empowered to block entire national policies, halt regulations, or freeze presidential orders affecting millions of citizens who were never before the court. Each time this happens, the line between the judiciary and the political branches fades a little more. What was once a constitutional separation becomes a jurisdictional blur.
Defenders of these rulings insist that judges must act to preserve the rule of law against executive excess. That argument misses the deeper principle. The rule of law depends on boundaries—on each branch knowing where its power ends. When courts abandon those limits, the Constitution becomes elastic to every passing impulse.
Immergut’s ruling reveals a broader pathology in the modern judiciary: the belief that moral confidence equals legal authority. It is a short step from interpreting the law to enforcing one’s own vision of justice, and an even shorter step from restraint to command. The robe begins to function as a second presidency.
What remains of “case or controversy” when judges legislate from the bench, issue injunctions that reach beyond the parties, and shape policy through decree? The answer is a hollow formality. A phrase drained of substance, invoked only when convenient.
The founders built the judiciary as a check, not a competitor. It was meant to guard the limits of power, not to exercise it. Each time a judge like Immergut steps outside the record to manage national affairs, the line between judgment and governance erodes. And once that line is gone, every courtroom becomes a potential command post.