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judiciary
The Fourth Branch: How Conscience and Civic Vigilance May Save the Republic
Ordinary citizens, lower courts, military officers, advocacy groups, and artists together form a novel “fourth branch,” acting as a moral immune system of the body politic, sustaining its health when power itself has become a vector of disease.
Oct 13, 2025
With the executive overreaching and the judiciary acquiescent, the Republic’s immune system strains under political and institutional dysfunction. The legislative branch, meanwhile, toggles between paralysis and performative outrage, its constitutional authority weakened by partisan spectacle. When the formal organs falter, the Republic depends on the dispersed actors of the “fourth branch”—a novel, emergent moral network—tasked with upholding civic and constitutional integrity.
Ordinary citizens, lower courts, military officers, advocacy groups, and artists together make up this fourth branch of government, sustaining the body politic when power itself becomes a vector of disease. Like any living organism, the Republic survives only if parts of its system remain healthy, responsive, and attuned to threat. Two hundred fifty years after the nation’s founding, that resilience appears to reside outside the glare of public office and the ceremonial pomp of political power.
The organs of government—the executive, legislature, and judiciary—were built to temper ambition with accountability. The executive pursues policy goals and national leadership, yet is held in check by congressional oversight, the threat of impeachment, and the Senate’s advice and consent powers. The legislature advances laws and represents constituents, but its ambitions are restrained by the separation of powers and judicial review. The judiciary interprets laws and shapes precedent, yet its authority is bounded by norms, constitutional limits, and the actions of the elected branches that carry out its rulings. In this delicate interplay, each branch’s drive is held in tension with the others, forming a dynamic system of mutual restraint—a mechanism of civic immunity that preserves the Republic’s health whenever power tempts corruption.
When those formal checks falter or are stretched to their limits, other actors step forward. Among the first responders to constitutional stress and executive and legislative overreach are the lower courts. Their judgments, often meticulous and unnoticed, resist the infection of unchecked power, preserving both legal precedent and the vitality of constitutional norms. Historical examples—from district courts enforcing Brown v. Board of Education (1954) to federal judges upholding limits on executive overreach during Watergate—show that judicial restraint and principled decision-making act as vital lymphocytes in the body politic. In recent years, lower courts have repeatedly pushed back against attempts by both parties to expand executive power, reaffirming the judiciary’s enduring role in protecting constitutional norms and maintaining systemic balance.
The individuals of the fourth branch embody resilience, restoring the Republic not through office or ceremony, but through conscience, vigilance, and mindful, ethical action.
Equally critical is the principle guiding the military. Officers sworn to uphold the Constitution function as nodes of resilience. When orders risk undermining constitutional norms, restraint and adherence to lawful principle operate as systemic immunity, ensuring coercive force is not deployed toward corruption or authoritarian consolidation. From Union officers defending constitutional principles during the Civil War to the US military’s post-World War II commitment to civilian control, such principled restraint has protected the Republic from abuse. It has also reinforced societal stability during periods of extraordinary national stress.
Advocacy groups and civic organizations form a diffuse network of immune cells, detecting threats, mobilizing responses, and maintaining transparency. From the NAACP’s legal challenges during the civil rights movement to investigative journalism exposing abuses of power, as well as contemporary grassroots advocacy and sustained public protest, these actors function as a persistent, often invisible immune surveillance, preserving the health of the body politic. These efforts exemplify the kind of decentralized vigilance and ethical engagement that underpins the emergent “fourth branch,” helping sustain systemic stability even when formal institutions falter.
Similarly, artists and curators participate in this moral immune system, using cultural production to expose injustice and inspire civic engagement. From Picasso’s Guernica, which revealed the horrors of war, to the Mirror Shield Project by Cannupa Hanska Luger—created in 2016 for the Indigenous-led protests against the Dakota Access Pipeline at the Standing Rock Sioux Reservation—art serves as a tool of ethical witnessing. Luger’s mirrored shields, intended as non-violent instruments of protest and protection, exemplify how creative interventions confront corruption and violence, mobilize empathy, and sustain the body politic’s vitality. Other contemporary examples include Ai Weiwei’s installations highlighting human rights abuses and forced migration, Mel Chin’s environmental advocacy and socially engaged art projects, and Theaster Gates’ community-driven work in Chicago that engages citizens in social and political renewal. These artistic acts, like investigative journalism or civic advocacy, function as moral lymphocytes, detecting societal “infection,” prompting reflection, and inspiring collective action.
Yet the deepest layer of defense resides in ordinary citizens. Democracy isn’t merely a formal arrangement of offices; it is sustained by conscience and participation. Every jury that renders judgment according to law rather than ideology; every community that organizes to defend the vulnerable; every voter in presidential, midterm, state, and local elections; and every citizen who peacefully protests or refuses to normalize corruption and injustice contributes to the body politic’s immune function. Herein lies the lifeblood of the fourth branch: a novel, emergent moral structure whose collective actions preserve health and resilience in the face of institutional illness and degradation.
As Montesquieu famously wrote in The Spirit of Laws (1748), “That anyone who possesses power has a tendency to abuse it is an eternal truth.” He emphasizes balance and vigilance in those who hold office, a caution echoed by Hannah Arendt’s warning against thoughtless compliance and the banality of evil, and by Immanuel Kant’s assertion that moral law—accessible through reason alone (his Categorical Imperative)—guides action even under pressure. When the organs of governance are compromised, these insights become urgent guides for ethical engagement, illuminating the vigilance demanded of the emergent fourth branch.
The metaphor extends further: Like any organism, the body politic is vulnerable to fatigue and infection. Judges may falter. Officers may waver. Citizens may grow indifferent. Yet recognizing systemic vulnerability can catalyze meaningful action. Just as immune systems strengthen in response to challenge, civic vigilance grows in response to institutional illness. The Republic’s health depends on persistent engagement, not the passive expectation of heroic leadership—a principle perfectly captured by John F. Kennedy in his 1961 Inaugural Address: “Ask not what your country can do for you—ask what you can do for your country.” Citizenship isn’t merely a document; it invites—and requires—active participation in the nation’s health and well-being. This can mean resisting authoritarian forces or preventing private interests from capturing public institutions. Such engagement takes many forms: at town halls, shareholder meetings, voting booths, or even the checkout counter.
History demonstrates that resilience often emerges from unexpected quarters. The quiet rulings of lower courts, the disciplined adherence of officers to constitutional oaths, the tireless work of advocacy groups, and the conscientious refusal of citizens to acquiesce in corruption sustain the body politic. Their work is seldom glamorous, yet it is indispensable. The fourth branch enables the Republic to heal and resist, ensuring that liberty endures even when formal organs of power succumb to illness. Democratic health is measured not by office, rank, or visibility, but by the vitality of this dispersed moral network. These actors collectively form the body politic’s immune response, detecting threats, containing infection, and restoring systemic balance.
Benjamin Franklin’s warning—“A republic, if you can keep it”—has never been more urgent. Its keepers are often neither powerful nor celebrated, but those whose acts are small, disciplined, and principled. Acting as the lymphocytes, macrophages, and antibodies of the body politic, they preserve democratic health when governance structures fail. The individuals of the fourth branch embody resilience, restoring the Republic not through office or ceremony, but through conscience, vigilance, and mindful, ethical action. We may never know all their names, yet we may still sense their impact—and feel gratitude for it.
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Don’t Despair: Trump Keeps Losing Bigly
The courts, backed by impacted people, are proving to be a significant check on Trump’s thirst for absolute power.
Sep 05, 2025
US President Donald Trump is on a losing streak this week. Just look at the latest judicial decisions challenging his policies, from mass deportations to tariffs to his troop deployments to US cities.
The courts are proving to be a significant check on Trump’s thirst for absolute power.
These cases illustrate the point:
Immigration
Over Labor Day weekend, Immigration and Customs Enforcement attempted to begin deporting up to 700 unaccompanied Guatemalan children. In the dead of night, the first children were loaded onto planes in south Texas. “These are unaccompanied children who do not have a parent or a guardian with them,” Efrén Olivares, an attorney representing the minors, said on the Democracy Now! news hour.
At 1:00 am on Sunday morning, Olivares and his colleagues filed an emergency complaint with the federal court in Washington, DC. Judge Sparkle Sooknanam was woken after 2:00 am, and by 4:00 am she issued a temporary restraining order blocking the deportations until the children had the immigration hearings to which they have a legal right.
Meanwhile in Texas, the 5th Circuit Court of Appeals, considered the nation’s most conservative, ruled that Trump’s use of the 1798 Alien Enemies Act to deport people was illegal.
Tariffs
The Appeals Court in Washington DC ruled that Trump’s so-called “Liberation Day” tariffs were illegal and unconstitutional, noting that only Congress has the power to impose tariffs. The ruling was “a sweeping decision that unequivocally rebukes President Trump’s idea that he can impose tariffs on American consumers on his own,” Neal Katyal, the attorney who argued the case, said on Democracy Now!
Domestic Deployment of the Military
Trump says, “We’re going in,” threatening to invade Chicago using, among other forces, the Texas National Guard.
But in California, a federal judge, invoking the 1878 Posse Comitatus Act that bars the use of military in domestic law enforcement, ruled in favor of Gov. Gavin Newsom, finding Trump’s deployment of the California National Guard to the streets of Los Angeles, along with several hundred US Marines, was illegal. Judge Charles Breyer, the brother of retired US Supreme Court Justice Stephen Breyer, issued an injunction barring the Trump administration from “deploying, ordering, instructing, training, or using the National Guard currently deployed in California, and any military troops [from] engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants.”
These are just a few of the recent court cases that have rebuked Trump as he attempts to subvert the US Constitution.
We recently got a personal glimpse into what judicial wins over Trump look like. In the high mountain air of Telluride, Colorado, we had a chance to spend time with E. Jean Carroll, the renowned advice columnist and journalist. She was at the Telluride Film Festival for the premier of the new documentary, Ask E. Jean.
Carroll had a long and storied career as the advice columnist for Elle Magazine, and has published several books. In recent years she became known as one of the most prominent women to accuse Donald Trump of sexual abuse, saying he raped her in the dressing room of the Bergdorf Goodman department store in the mid-1990s, in Manhattan.
The courts are playing a central role in opposing the lawless Trump administration, but the core of the resistance are people.
Carroll sued Trump in civil court, and a jury found him guilty of sexually abusing her. Judge Lewis Kaplan wrote, “Trump did in fact ‘rape’ Ms. Carroll as that term commonly is used and understood.” She was awarded a $5 million settlement from Trump. After the verdict, he called her a liar. She then sued for defamation, and won an additional jury award of $83.3 million.
Carroll cut an elegant figure, walking along Telluride’s main avenue with the sweeping Continental Divide as a backdrop. Her film premiered to rave reviews, and, should there remain a film distributor in this country not cowed by threats of lawsuits from Trump, it should be available for viewing by a wide audience. The film highlights the story of one courageous woman refusing to be defined as a victim of Donald Trump, providing inspiration, no doubt, to the hundreds of survivors of Trump’s old friend, the now-dead sexual predator Jeffrey Epstein. Many of them spoke this week outside the US Capitol, demanding the full release of the Epstein files. The Trump administration, which controls the files, is resisting.
Behind each lawsuit are impacted people, whether immigrant children pulled from their beds in the middle of the night and thrown on planes, or people standing up in the streets of LA confronting illegally deployed troops, whether sexual abuse survivors banding together, or federal workers fired en masse.
The courts are playing a central role in opposing the lawless Trump administration, but the core of the resistance are people–people at every level organized in opposition, defending democracy.
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By Keeping Climate Funds on Ice, the DC Circuit Is Complicit in Trump’s Overreach
By refusing to act, the DC Circuit has turned oversight into obstruction, procedure into punishment, as it helps the executive hollow out Congress’ most basic power.
Sep 03, 2025
On September 2 the US Court of Appeals for the DC Circuit ruled that $16 billion in climate grants will remain frozen. The case, Climate United Fund v. Citibank and Environmental Protection Agency, grew out of the Trump administration’s February decision to halt the Greenhouse Gas Reduction Fund. The order was only a few lines long, a clerk’s note that the mandate would be withheld until rehearing petitions were resolved. In appellate procedure, withholding the mandate means the decision below is not yet enforceable. The court could have allowed the money to move while review continued. It chose not to.
This is not paperwork. This is power. Power in this case means leaving billions locked in a Citibank vault while families ration air conditioning, patch storm-wrecked homes, and haul water across dry land.
The money is real. Congress appropriated it. Treasury obligated it. The Environmental Protection Agency (EPA) awarded it. Projects were ready. Tribal governments had contractors lined up to install solar pumps. Rural co-ops had bids in hand to replace cracked water lines. Community lenders had retrofits prepared for families who spend half their paychecks on electricity. Yet the funds remain frozen, generating interest for a bank that once needed a taxpayer bailout and still bankrolls oil expansion.
Judges call this a pause. A pause in Washington is a crisis everywhere else.
Maria Ortega in Phoenix knows it. She is 76, widowed, living on a fixed income in a house that traps the heat. Phoenix endured its fourth hottest summer on record, with 12 days at or above 110°F this July. Maria shut off her air conditioning most afternoons to avoid a $287 bill, half her Social Security check. The thermostat read 98°F. She sipped water slowly, blinds drawn, a box fan pushing hot air. At night she ran the AC for three hours so she could sleep. She asked a question no one should face: Is surviving this month worth going hungry next month?
Daniel Robinson outside New Orleans knows it too. Another September storm peeled shingles from his roof. He was 19 when Katrina came. He rebuilt, married, worked double shifts. He was told resilience would come. But this fall he found himself again hammering blue tarps while his kids carried buckets. Federal funds exist for stronger roofs and elevated homes. They were approved, obligated, ready. But they remain locked in limbo.
And Sarah Begay on the Navajo Nation knows it as well. She drives every other day to a community well, filling barrels for her livestock. The dirt tanks her father used have been dry for years. Gas prices climb, the miles wear down her pickup. She was told federal money was coming for solar pumps. Instead she is told to wait.
Three people, three regions, one reality: Delay is not neutral. It kills.
Maria is not waiting for abstractions. She is waiting for a power bill she can pay.
Judges insist they are bound by law, not outcomes. But law already spoke. Congress passed the appropriation. Treasury obligated it. EPA awarded it. The Constitution gives Congress the purse for a reason. The Impoundment Control Act of 1974 codified that a president cannot cancel or withhold funds Congress has approved. President Richard Nixon tried, and Congress stopped him. What this administration has done—freezing appropriations indefinitely under the language of review—is a backdoor impoundment. And by withholding the mandate, the DC Circuit has not merely tolerated this maneuver. It has validated it.
This is the judiciary’s quiet habit: Retreat into formalism while people pay the price. Courts claim neutrality but exercise discretion constantly—choosing when to grant stays, when to expedite review, when to let money flow. To call delay neutral is a fiction. Delay is a ruling in all but name. The choice to freeze funds is as consequential as striking them down.
The consequences reach far beyond climate. If this precedent stands, any appropriation can be stalled. Veterans’ healthcare, housing aid, disaster relief—all can be frozen at a president’s discretion so long as courts are willing to play along. Congress will hold the purse only on paper. In practice, presidents will wield the choke chain, and judges will provide cover.
Every day of delay bleeds value. A retrofit not installed means another summer of unbearable bills. A pump not delivered means another year of hauling water. A roof not secured means another tarp, another moldy wall, another child growing up in a house that never dries. A dollar spent today prevents five dollars in damage tomorrow. A dollar withheld compounds harm. The storm does not wait for petitions. The fire does not wait for oral arguments. The flood does not wait for a court’s sense of timing.
Judicial restraint here is not harmless. It is complicity. By refusing to act, the DC Circuit has turned oversight into obstruction, procedure into punishment. It has helped the executive hollow out Congress’ most basic power. It has reduced law to theater while real life burns.
Maria is not waiting for abstractions. She is waiting for a power bill she can pay. Daniel is not waiting for legal formalities. He is waiting for a roof that will hold. Sarah is not waiting for judicial review. She is waiting for water that flows.
The storm will not wait. The fire will not wait. The flood will not wait. Politicians will still gather in front of cameras to praise oversight and congratulate themselves on restraint. Judges will polish their dockets and write opinions about consistency.
But history will record something else. The money was there. The need was there. The chance was there. And power chose not to use it. That is not oversight. That is abdication. It is not neutrality. It is complicity. And it is a verdict that will damn the judiciary as much as the executive.
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