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With DACA, Put the Federal Judiciary Back in Its Constitutional Box

As the Supreme Court -- the only constitutionally mandated federal court under Article III -- considers whether to fast-track consideration of a lower-court ruling regarding the so-called "Dreamers," it might be wise for every federal judge in this country except nine to remember that their jobs, and their courts, could vanish tomorrow, and there's not a damn thing either they or the Supes could do it about.

We've been over this before. The idea that the three branches of government are, in practical terms, "co-equal" is rubbish -- as a glance at Article III would make clear to everyone except a lawyer. That was also clear to the Founders, by the way, as per Alexander Hamilton's remark that the courts would be the "least dangerous" branch of the new federal government, lacking “the power of the executive branch and the political passions of the legislature.” As Hamilton wrote in The Federalist 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Tell that to the Trump administration, which practically from the moment it took office a year ago has seen its lawful authority to conduct American immigration policy come under fire from rogue federal judges, concerning both the Muslim travel ban and, now, the DACA mess, instigated by Barack Obama via an executive order, and since rescinded by the current president, most recently by two judges who have determined that Trump has no right to overturn this crucial part of Obama's "legacy," because butthurt.

The U.S. Supreme Court on Friday discussed in private how to handle President Donald Trump's appeal of a judge's decision blocking his plan to end protections for young illegal immigrants dubbed "Dreamers," and the nine justices could announce as early as Tuesday whether they will take up the case.

Trump's administration is appealing San Francisco-based U.S. District Judge William Alsup's Jan. 9 ruling that halted the president's order to end the Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation young adults who came into country illegally as children and gives them work permits.

U.S. lawmakers have been working to resolve the fate of the hundreds of thousands of young adults, mostly Hispanics, protected by the program, but legislation that would have done so failed in the Senate on Thursday. DACA was implemented in 2012 by Democratic former President Barack Obama. If the justices agree to hear the appeal by the Republican president, they likely would not rule on the case until late June.

Here's why it's vital that the Supreme Court take this on immediately:

If they turn away the appeal, Alsup's nationwide injunction blocking Trump's plan to rescind DACA would remain in effect while legal challenges to the president's action proceed. Alsup's injunction was issued in a lawsuit led by California's Democratic attorney general.

Under Trump's order, DACA would begin phasing out on March 5. If Alsup's decision remains in place, DACA beneficiaries would be able to reapply for protections past that deadline, although the administration is not processing new applications. On Tuesday, a second U.S. judge issued a similar injunction ordering the Trump administration to keep DACA in place.

Can a lowly federal judge countermand the executive's authority? Although the fascist Left worships rule-by-judges as a way to get around the messy business of republican-democratic government, it's impossible to argue that any of them can. Indeed, even the high court's vaunted power of "judicial review" is arguably unconstitutional, and was in any case simply a power grab by Chief Justice John Marshall in Marbury v. Madison. Further, there's little doubt the Court -- which has already overruled the lower courts and allowed the travel ban to stand pending a full court hearing -- will allow the lower-court rulings to stand. "The Constitution is not a suicide pact," wrote Justice Robert Jackson in 1949 -- but what the off-reservation judges are doing isn't even constitutional.

Maybe the district and circuit judges, who are presidential appointees, can't read the plain language of Article III, but surely the nine justices can:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the  Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

One remedy available is for Congress to impeach judges like William Alsup for brazenly precipitating a constitutional crisis. Another is for Congress to simply remove certain issues from the courts' jurisdiction -- something well within its constitutional powers.  (The only areas Congress cannot remove from judicial purview are the Supreme Court's very few enumerated jurisdictions under Article III.)  Even better would be to dis-establish a major circuit court -- say, the Ninth -- pour encourager les autres. The Left, of course, would howl -- but then they've been howling since Nov. 8, 2016. This would give them something to howl about, and from which to learn.

How many divisions does a San Francisco district court have, anyway? Or, for that matter, the Supreme Court? All the courts have in the end is the respect and good will of the other two branches, and of the people of the United States. That the Left would threaten that hard-won, peaceable social consensus in pursuit of its destructive goals tells you everything you need to know about them.

 

Follow me on Twitter @dkahanerules