C.4. Judicial Budget Safeguard

Recently, a Speaker of the House of Representatives threatened to defund all or part of the judiciary over court rulings that he disagreed with.[1] Under the Constitution of 1789, Congress has that power. But it shouldn’t. The idea that a court can be defunded, just because you don’t like its rulings or verdicts, is authoritarian. It has no place in a free republic. And since that spectre has already materialized, it’s now necessary to explicitly protect the judicial budget while still retaining the congressional power of the purse. This clause aims to do that.

The Judicial Branch shall have a separate budget, not included in the general federal budget.

The Chief Justice shall send the Judicial Branch’s yearly budget to the Speaker of the House. The Speaker will make the budget request public by the end of the legislative day, provided the Chief Justice submits it before 5 p.m.; otherwise, it must be made public by noon the following day.

The first step is severing the judicial budget from the rest of the federal budget. This mandates that the judiciary is to have a separate budget. It gets considered and voted on separately. That budget is prepared by the Chief Justice of the Supreme Court on behalf of the entire judicial branch.

Some might object that this is an enormous task that takes the Chief Justice away from their primary duties. To that I agree. But I temper that critique by highlighting that the Chief Justice can rely on experts in the Administrative Office of the United States Courts to aid in preparing it.

Once the budget is prepared, the Chief Justice supplies it to the Speaker of the House. The Speaker is obligated to publish the proposed budget promptly, before noon the following day, in the most extreme circumstances. Why such a tightly constrained timeline? And why so detailed? After all, this level of detail seems trivial in a foundational document. But consider why this clause exists in the first place. A Speaker of the House threatened to defund the federal courts, either in whole or in part, over court rulings. The detail here forces the Speaker’s hand and puts the budget into the public sphere quickly, forcing accountability.

The budget is approved unless both chambers vote to reject it by a two-thirds (⅔) majority of those present and voting.

This is an important feature. The judicial budget is “opt-out.” That is, it is approved unless a supermajority in both chambers rejects it. If they fail to vote or only a bare majority votes to deny it, the budget is still approved.

If the budget is rejected, the Speaker and the Senate Leader must provide a written explanation within five (5) days, even if the budget deadline passes during that time. If the fiscal year has not concluded, the Chief Justice may then revise and resubmit the budget, starting the process over. This process repeats until the budget is approved or the fiscal year ends. If no budget is approved by September 30 of any year, the most recent approved budget stays in effect.

The Speaker of the House and the Senate Majority Leader are required to provide a written explanation of why their chambers rejected the budget and return it to the Chief Justice. The Chief Justice resubmits a budget, and the process restarts. In theory, the Chief Justice could also elect to accept congressional rejection and continue operating on the previous year’s budget. That budget is not, notably, adjusted for inflation.

Taken as a whole, this clause preserves fiscal oversight for Congress. It also ensures the courts can’t be coerced. That protection is indispensable. The judiciary is where most people turn to defend their rights under the law. It must be beyond the reach of political reprisal.

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[1] Accord. Scott Wong, Melanie Zanona and Rebecca Kaplan, Speaker Mike Johnson Floats Eliminating Federal Courts as GOP Ramps Up Attacks on Judges, NBC News (Mar. 25, 2025), https://nbcnews.com/politics/speaker-mike-johnson-floats-eliminating-federal-courts-rcna197986; Edith Olmstead, Mike Johnson Has Terrifying Threat for Courts That Rule Against Trump, The New Repub., (Mar. 25, 2025); and Suzanne Monyak, Maeve Sheehey House Speaker Floats Judiciary Funding Cuts in Courts Battle (2) BL (Mar. 25, 2025)