"What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation"
~ Justice Samuel Alito, (Obergefell v. Hodges, dissenting)
Last night, we saw the logical outcome of over a half century of political agreement on the Right and Left that the opinions of the courts are the sole and final arbiter of every public policy issue, no matter how divorced from the Constitution and inimical to national interests those decisions may be.
The Ninth Circuit, although not “officially” deciding the merits of the immigration case, indicated that there is a constitutional right for anyone to immigrate, even during a time of war, even from countries we were so careful never to take immigrants from until recently. It concluded the president must show the courts sufficient evidence that each person will be a terrorist and anything short of that creates a due process right to be here.
It's very important to remember that this is not about the executive action. President Trump’s executive order is following a statute, really a series of statutes, which grant any president ABSOLLUTE at-will power to shut off all or any immigration. According to the perverted rationale of the courts, even Congress couldn’t cut off immigration, even from part of the Middle East because it poses issues to the Left’s social justice agenda, which has been retroactively enshrined into the Constitution.
The outcome of this case is that even if Congress was to merely bar visas from countries that support terror (which is current law for state-sponsors of terror), that law would be open to lawsuits and would be enjoined nationwide by one district within one liberal circuit — and there’s not a darn thing we can do about it. It means any Islamic supremacist sitting in a shack in Somalia has due process rights to immigrate here and liberal states can sue on his behalf. It means any Muslim in Syria can sue us if they believe a Christian was admitted as a refugee in front of them. After all, we already know that four of the justices on the Supreme Court will never defy any political agenda of the Left, and that Anthony Kennedy is terrible on immigration.
Those radicals breaking windows and beating people up in the streets? Those views are not only represented in Congress but are now codified into law and the Constitution by the misconceived supremacy of the judicial branch of government. As I predicted in my book, within a few years (perhaps less), there will be wholesale judicial amnesty for all of the illegal immigrants in this country under the First and Fourteenth Amendments. It’s already happening in the lower courts. Last night, it was codified into law by the Ninth Circuit when it said illegals have due process rights (to remain in the country).
So where does it say in the Constitution that there is a right for foreign nationals to immigrate, especially when courts have said the opposite for 200 years? It’s in the same clause as “separation of church and state,” gay marriage, sex change operations, and the right to 30 days of early voting.
It’s not worth re-litigating what is so obvious to a sane person and frankly what is obvious to these judges themselves.
What I would like to focus on is the solution. In the coming days I plan to focus on the strategy of wholesale judicial reform as well as the need to continue the push for an Article V Convention of the States. But the first step is understanding the severity of the problem and to stop legitimizing the false premise that courts have the final say on political questions. Let’s say this together: The federal judiciary is IRREMEDIABLY broken, and as witnessed by these cases, half the GOP judges are just as bad.
We must also stop legitimizing the notion that Congress doesn’t have full authority over the jurisdiction and structure of the courts.
Let me leave you with the following twisted irony.
Samuel Chase was one of first Supreme Court justices and one of the earliest supporters of judicial review (which is not synonymous with judicial exclusivity/supremacy). Chase was impeached, at the behest of President Jefferson, for using the court to advance his political agenda. Yet, even this judicial strongman of his day, when defending the original rationale for the power of judicial review against laws passed by legislatures, declared, “an act of the Legislature contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” Chase believed the Court could strike down laws passed by Congress that violated the essence of the social compact and fundamental natural rights.
Fast-forward two centuries and we have unelected judges, not the legislature, violating the essence of the social compact by redefining marriage and gender itself (the ultimate natural law). Courts have violated the popular and jurisdictional sovereignty of our states and federal union in hamstringing the elected representatives from protecting us against those who come here without our consent and harm our society. The fact that any liberal state official can sue to bring in people who don’t share our values and might do us harm violates the very essence of the consent-based national sovereignty at the core of the social compact and at the foundation of why the Constitution gave national sovereignty questions to the national government. As Justice Scalia warned, we are suffering from social transformation without representation.
Until and unless we reclaim our sovereignty from the courts, we are no longer a sovereign nation.
Daniel Horowitz is a Senior Editor of Conservative Review. Follow him on Twitter @RMConservative.