The Tyranny of the Judiciary and What to Do about It
The Tyranny of the Judiciary and What to Do about It
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December 12, 2018
Almost from Day One of his presidency, Donald Trump has been stymied by judges on lower federal courts issuing restraining orders to stop his executive orders and bring his agenda to a screeching halt.
On November 10, National Review ran "Obama's Judges Continue Thwarting Trump," a fine analysis by Andrew C. McCarthy, who explains what's really going on with the injunctions issued by these "rogue" judges:
You may have been under the impression that Trump won the election, and that choosing among competing policies is what elections are about. That is how it is supposed to work in our free, constitutional republic. But day by day, the space for free choice is shrinking. To the Lawyer Left, elections represent a policy choice only when Democrats win. The rest of the time, the courts are there to consolidate the Left's gains, to repel democratically driven policy shifts.
McCarthy demonstrates that, contrary to Chief Justice John Roberts, at least some of our federal courts have become politicized. It's simply not the case that "[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges," as Roberts alleges. Perhaps Roberts is confused about what should be and what is.
McCarthy touches on the judicial overrides of Trump's decisions on DACA and the Keystone Pipeline. And let's not forget the travel ban, key provisions of which SCOTUS reinstated.
McCarthy began his article by predicting that the president's new policy on asylum claims would soon be stopped:
As I write on Friday, the restraining order hasn't come down yet. But it's just a matter of time. Some federal district judge, somewhere in the United States, will soon issue an injunction blocking enforcement of the Trump administration's restrictions on asylum applications.
That's exactly what happened nine days later on Nov. 19. The next day at The Corner, Mr. McCarthy wrote that the injunction "took a few days longer" than he expected. (His blog post didn't contain a link to Judge Jon Tigar's restraining order, but one can find it here and here.)
It is thought that the only way to deal with misbehaving judges is impeachment. We read at Ballotpedia that a total of fifteen federal judges have been impeached: "Of those fifteen: eight were convicted by the Senate, four were acquitted by the Senate, and three resigned before an outcome at trial." Eight convictions over America's 230-year history might indicate that federal judges are a fairly decent lot. However, by 2003, there had been sixty-one impeachment investigations of federal judges. Here's the list.
Impeachment is a difficult means of dealing with rogue federal judges, and it may be even more difficult once the House is taken over by Democrats in January. So what can be done to rein in a runaway federal Judiciary? Well, in 2005, the Brookings Institution ran "Reining In a Runaway Federal Judiciary?" by Alan Murphy and Thomas E. Mann. It's worth reading, but they offer no solution:
Throughout American history, legislators and presidents have attempted to bring independent-minded jurists into submission through other means as well, such as packing and unpacking the courts, restricting their jurisdiction, cutting judicial budgets, defying court orders, and investigating individual judges. Yet, as with impeachment, these tactics have met with minimal success and now are widely viewed as illegitimate and threatening to judicial independence.
In 2006, however, the Yale Law Journal ran "Removing Federal Judges without Impeachment" by Saikrishna Prakash and Steven D. Smith, who argue that judges can be removed through other means than impeachment. They examine the history of the term "good behavior," as required by the second sentence of Article III:
Those who think judges may only be removed by impeachment might suppose that history reveals that "good Behaviour" was a term of art that meant something like "tenure for life defeasible only by impeachment." History actually proves that good behavior was independent of impeachment.
When judges on lower federal courts issue restraining orders that stop a president from performing his duties or that override his judgment, they need to have the Constitution on their side, because their orders can be reversed by higher courts. Though they have their judgeships for life, judges should pay a price when they so presumptuously overstep.
Unlike the Legislative and the Executive Branches, the Judicial Branch of the federal government doesn't police itself; it's left up to Congress to get rid of bad judges. Perhaps that should be changed. Perhaps judges who are routinely overridden need to be relieved of their duties with an automatic "three strikes" mechanism. In the real world, professionals who repeatedly foul up lose their jobs. Why can't the federal Judiciary, not the Congress, get rid of judges who demonstrate a warped appreciation of the Constitution or who are just plain incompetent?
It doesn't seem right that one person in one branch of government can summarily stop the activities of another branch of government. Something needs to be done. But if impeachment is too much, then what's to be done about these lower-court judges throwing monkey wrenches into the executive? At the very least, appeals of these injunctions need to be greatly expedited.
What President Trump is trying to do with his executive orders is protect America by stopping invasions. What Chuck and Nancy and the open borders crew want is to import poverty, and with it new Democratic voters. They don't care about the cost to taxpayers, nor do they care about how these invasions are changing America and her culture. When it comes to obeying unconstitutional injunctions or defying them in order to protect America, a decent president does the latter. The tyranny of the Judiciary must end.
Although judicial gnats have been pestering him, President Trump has been fairly judicious with his executive orders. One E.O. he'd surely get some blowback on from "Obama judges" is an E.O. to end birthright citizenship. However, such resistance may be the very reason for the president to go ahead and do it. For Trump to have a truly transformative presidency, he must confront and ratchet back the Deep State and the Lawyer Left.
Article III of the U.S. Constitution outlines the role of the Judiciary in our system. It's rather shorter than the first two articles, as it consists of 377 words and can easily fit on a single page. In the first sentence of Article III, we read that 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."
Article III gives Congress the authority to create and to destroy "inferior courts." During our entire history, such federal courts have been abolished only twice. There was the Judiciary Act of 1801 that backed out the "midnight judges" of President Adams. Then there was the short-lived Commerce Court in 1913.
Except for the Supreme Court, it would seem that Article III gives the Congress carte blanche to abolish the entire federal judiciary. If such a radical reorg of the judiciary seems "a bridge too far" right now, then perhaps Congress could abolish just the Ninth Circuit – just to send a message.
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