The ink had barely dried on my morning article about the Supreme Court allowing lower court tyranny to prosper when the high robes announced that they are allowing judicial amnesty from two radical district judges to go forward.
John Roberts’ Supreme Court has become arbitrary and capricious, willfully turning a blind eye to lower courts engaging in civil disobedience against the law, the Constitution, legal norms, and settled precedent. The Supreme Court is erroneously regarded as supreme over the other two branches; the lower courts are now regarded as supreme over the other branches as well, yet SCOTUS refuses to wield its legitimate supremacy over the lower courts.
In perhaps the most lawless decision of all time, two district judges – William Alsup of San Francisco and Nicholas Garaufis of New York – mandated that Trump continue Obama’s violation of national sovereignty and give work permits and Social Security cards to illegal aliens. They declared judicial amnesty by saying Trump is a racist, and that trumps law and national sovereignty. Furthermore, these same judges violated all legal norms by demanding that Trump surrender his texts and emails to political aides related to legal and political advice he received on the issue.
In a healthy republic, the president would follow statute and not the opinion of a district judge illegally granting standing to illegal aliens to illegally overturn the law, illegally applying it nationwide, and illegally codifying an elective act of a predecessor into the Constitution. As we’ve explained many times, judicial review allows a judge to grant relief from an action placed on a legitimate plaintiff by an executive branch, not to veto the actions of an executive and demand that the executive branch issue a visa or work permit contrary to law. Yet it has become clear that there is nothing a district court can do that will prompt the other branches of government to use their constitutional powers in accordance with the law of the land – the entire premise of judicial review to begin with.
So, the next best thing was to expedite an appeal to the Supreme Court. Democrats are purposely taking their cases to radical district judges within liberal circuits, such as the Second and Ninth Circuits in this case, knowing they will win the appeal and continue to grind Trump’s basic legal agenda to a halt. Which is why the DOJ asked the Supreme Court to step in. Today, SCOTUS declined to grant an expedited appeal and noted that there is no reason to believe the DOJ won’t get a speedy appeal from the federal courts of appeals.
Why SCOTUS is wrong to hide behind the appeals process
Some are defending the Supreme Court’s decision as simply a fair and balanced way of keeping the regular order of appeals in place. There are a couple of problems with this approach that reveal the capricious nature of the Supreme Court majority, something we have recently witnessed in gun cases:
- Yes, there is a regular process of first appealing to the circuit courts before the Supreme Court. But when a district judge violates every legal norm and Supreme Court precedent, SCOTUS has an obligation to step in. Does anyone think for a minute that if a conservative district judge mandated that the federal government give taxpayer funding for citizens to purchase guns or some other absurdity that the Supreme Court would sit idly by? What if they disregarded Roe or Obergefell? SCOTUS would overturn the case without even a petition!
- The Supreme Court is well aware of the fact that the Ninth Circuit, where the appeal is headed, has already designated Trump as a racist and has stripped him of all powers over immigration. The high court has already had to rebuke the Ninth Circuit on this very issue on two separate occasions. By punting this case, the justices are ensuring that the biggest violation of our sovereignty continues until 2019.
- While two district judges are saying that Trump must enact executive amnesty, the Fifth Circuit has already ruled that the president cannot grant amnesty. Although the actual case applied to a different population of illegals (the so-called “DAPA” population), the legal rationale against DACA is actually stronger. In fact, the entire impetus for Trump’s delayed reaction in cancelling DACA was the threat from Texas Attorney General Ken Paxton to sue the administration in the more conservative circuit with the understanding that he would prevail. What’s the administration to do? Which court should it listen to? It’s insane for the high court to allow this nonsense to continue.
- Judge Alsup, in particular, has already been rebuked by a unanimous ruling from SCOTUS in this very case when he demanded that Trump turn over political documents from senior White House aides concerning DACA. There is no excuse for allowing this charade to continue again, especially when the justices know the Ninth Circuit will side with this lawlessness and indeed already sided with him on the disclosure of documents – which was overturned by SCOTUS 9-0.
It has become apparent that at best there is a 6-3 leftist majority on the Supreme Court at this point. The possibility that Roberts and Kennedy will potentially give us a victory here or there is immaterial.
What conservatives should do: Don’t legitimize lawlessness
Some conservatives think today’s development is good news because it gives conservatives in Congress more time to prevent a legislative amnesty without some arbitrary deadline. But they are missing the forest for the trees. If we are going to legitimize the most lawless acts of the courts and even praise them strategically while they strip the political branches of the right to enforce American sovereignty, there is nothing left to fight for. The Supreme Court is allowing the lower courts to essentially impose a Roe- and Obergefell-style gutting of immigration law. We will never recover from this.
At this point, conservatives should push for the following courses of action:
- Ideally, Congress would prohibit funding for DACA in the omnibus bill. They will never do that, but they should at least block funding for refundable tax credits. We are told that DACA recipients are the smartest, most productive people in the country. As such, it shouldn’t be too hard for Republicans to demand that Democrats place their money where their mouths are and block access to welfare. Either way, Americans should never have to redistribute wealth to illegal aliens this tax season simply because of a capricious court system.
- As noted earlier today, pass Dave Brat’s bill blocking lower courts from issuing nationwide injunctions on policy.
- Ken Paxton should follow through with his promise and sue the Trump administration for keeping DACA in place. This will expose the absurdity of lower court supremacy by fighting forum shopping and nationwide injunctions with forum shopping and nationwide injunctions.
As conservatives, we must not lose sight of the big picture. If we are suddenly content with legitimizing the most outrageous judicial tyranny of our time, then there is nothing left to fight for.
Editor’s note: An earlier version of this article referred to the “Third and Ninth Circuits” in the fifth paragraph instead of the “Second and Ninth Circuits.” It has been corrected.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.