Once again, a lawful executive order on “immigration” has been blocked by a couple of federal judges. To the Left, of course, this is a triumph of “representative democracy” but to the rest of us it’s anything but. The idea that a single federal judge, anywhere, can — for any reason, or no reason at all — frustrate the legitimate functioning of the executive branch makes absolutely no sense, except in the political sense.
So this battle over Trump’s “Muslim ban” offers us a handy occasion to school the federal judiciary in the constitution, and to remind it that it’s skating on very thin ice indeed if it continues down its partisan path. Because, far from being a “co-equal” branch of government, almost the entirety of the federal court system is a creature of Congress, and can be restructured or abolished at any time. Don’t believe me? Take a look at Article III, here presented in its entirety.
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.
“As the Congress may from time to time ordain and establish.” Pretty clear, no? And that’s really all you need to know about this “co-equal” branch of government. But, just for fun, let’s take a look at the next bit:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
So the purview of the Supreme Court is remarkably limited constitutionally — and still subject to Congressional regulation and oversight. Congress, in fact, can strip the court of any of its non-constitutionally arrogated jurisdictions.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
And that’s it. Doesn’t sound very “co-equal,” does it?
Clearly, this wasn’t good enough for our supreme solons, which is why they engaged in an astonishing power grab in 1803, when the court under John Marshall decided in Marbury v. Madison to grant itself the power of judicial review. The theory was that the justices had sworn an oath to uphold the Constitution — but then, so does the President (Article II) and every member of Congress (Article I). It’s impossible that the Court’s obligation to the Constitution outweighs either the executive’s or the legislature’s, and it certainly does not trump theirs.
And yet the Left loves judicial supremacy, since it allows them to end-run the legislative process, deploy their armies of lawyers, and argue in front of single judges, a small panel, or (in the case of the Supreme Court) nine Ivy League lawyers in black robes. What could be less democratic than that?
So it’s no wonder that there’s a movement brewing — long-overdue — to rein in the federal judges who are, after all, employees of the Congress, which is to say, the people.
This week’s rulings against President Trump’s revised executive order on travel and refugees have sparked heated pushback from Republicans on Capitol Hill, who say judges have crossed the line to become adversaries of this White House — and suggested retribution could be coming.
Even some judges seemed worried about the tenor of recent rulings, saying their colleagues appeared to be letting personal beliefs taint their legal reasoning.
“As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy,” Judge Jay Bybee, of the 9th U.S. Circuit Court of Appeals, wrote in a dissent Wednesday. He said his colleagues erred in not agreeing to rehear Mr. Trump’s defense of his original executive order.
One remedy for rogue government officials with life tenure is impeachment (Alcee Hastings, now a Democrat representative in Congress from Florida, is a former federal judge who was impeached and removed from office by the Senate in 1989). But, since the impeachment of Bill Clinton and the failure of the Senate to convict him in 1998/99, the standard for removing public office-holders has become impossibly high.
Clearly, this is intolerable. A functioning country cannot have the president subject to whimsical overrulings by some 3,300 regional judges, many of whom are also political activists. (It’s instructive to remember that when Marshall was chief justice, he was also acting secretary of state in the John Adams administration.) Congress has it within its power to re-organize the judiciary below the Supreme Court level in any way it sees fit. It can also change the rules concerning lifetime tenure, removal and anything else it chooses.
Historically, the courts have been no collection of disinterested secular saints, as the Dred Scott, Plessy, Roe v. Wade and Obergefell decisions amply demonstrate. President Trump and the GOP Congress should take this opportunity for a thoroughgoing re-examination of the federal judiciary, leaving nothing off the table. To continue on this path lies anarchy.
UPDATE: The Trump administration has just appealed the Maryland judge’s decision to block the president’s executive order:
The Justice Department formally appealed a Maryland judge’s decision this week that blocked the implementation of President Donald Trump’s revised executive order barring U.S. entry for people from six Muslim-majority countries.
The appeal on Friday kicks off a new phase in litigation over whether Mr. Trump’s latest travel restrictions improperly target people based on their religion. The president says the restrictions are necessary to protect the country from terrorism.
Judges in Hawaii and Maryland, in rulings issued only hours apart this week, said Mr. Trump appeared to have been motivated by improper religious animus.
Perhaps the Fourth Circuit will understand that the “no religious test” applies to candidates for American public office, that federal statue 1182 is clear on the subject of immigration, and that the First Amendment is not applicable to foreigners living overseas. And enemies of the United States are not welcome here, period.