The spectacle of the U.S. government having to grovel before the Ninth Circuit to determine whether we are a sovereign nation or not should draw attention to another important initiative: the effort to break up the tyrannical Ninth Circus Court of Appeals.
Believe it or not, the courts did not create themselves. Congress has plenary control over lower courts and the appellate jurisdiction of the Supreme Court. Congress can abolish the lower courts altogether and reroute their cases to state courts. Every aspect of the court system’s structure — administrative procedures, rules of adjudication, methods of interpretation, and logistics of proceedings — can be regulated by Congress in any way. As such, it goes without saying that Congress can, as it has done in the past, modify the geographical jurisdiction of an existing circuit.
The time has come to strip the Ninth Circuit down to size. This court is by far the most anti-constitutional circuit amidst a federal judiciary where the majority of the circuits don’t respect the Constitution as written. Most of the members of the Ninth have literally supplanted the written Constitution for an ever elastic set of ethos that are anchored to nothing more than the political values of these unelected judges at the time they woke up that day. Most importantly, what they have done to the sovereign state of Arizona is outrageous. Congress owes it to the good citizens of the Grand Canyon State to free them of the clutches of judicial tyranny.
To begin with, putting politics aside, the Ninth Circuit — which includes Alaska, Hawaii, California, Nevada, Arizona, Oregon, Washington, Idaho, and Montana — is too big. As of the end of FY 2016, there were 13,334 pending appeals before the Ninth Circuit, more than twice the amount of the second busiest circuit (the Fifth) and more than ten times as much as the adjacent Tenth Circuit. The idea of breaking up the Ninth goes back respected figures like current Supreme Court Justice Sandra Day O’Connor, a native Arizonan. Not to mention the fact that the Ninth Circuit is, by far, the most reversed appeals court in the country, making Anthony Kennedy look like James Madison in comparison.
To that end, Rep. Andy Biggs, R-Ariz. (A, 0%) has followed in the tradition of many non-California residents of the Ninth Circuit’s tentacles and introduced H.R. 250 — the Judicial Administration and Improvement Act. This bill would limit the jurisdiction of the Ninth Circuit to California, Washington, Oregon, and Hawaii. A new “twelfth circuit” would be created to oversee appeals from district courts in Arizona, Nevada, Idaho, Montana, and Alaska. Personally, I’d limit the Ninth Circuit to California alone, as was suggested in a bill from a previous Congress, (or better yet, a few square acres in Death Valley), but overall this is a great starting point.
Now is the best time to create a new circuit. With GOP control of the Senate and the filibuster having been eliminated for lower court judges, Trump can flood the zone with originalists (to the extent they exist) and establish the first full circuit that actually follows the law and the Constitution as written. These judges can start fresh, unvarnished from lawless “precedent” of the past.
Arizona is one of the most important states for the judiciary because so many immigration cases emanate from the Grand Canyon State. Words cannot describe how the Ninth Circuit has stolen the sovereignty of Arizona to the detriment of the state’s economy, security, and social cohesion. This officious panel has invalidated every single thing the legislature and the people (through ballot referendum) have done to protect their state. In addition, the Ninth Circuit has forced the state to give driver’s licenses to illegals, offer bail to the most violent criminal aliens, and has blocked the state from requiring proof of citizenship in order to register to vote. The Roberts Supreme Court has not lifted a finger to overturn almost any of the dozen or so decisions from the Ninth Circuit [Scalia and Thomas called them out for it]. With at least 630,000 illegals residing in the state, at a cost of $2.4 billion a year, Arizona is left defiled and helpless in protecting its own residents and even their right to vote in untainted elections.
Indeed, the Trump administration and the GOP Congress owe it to the state to provide them with a new federal appeals court. The Constitution [art. IV, § 4.] requires the federal government to “guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion.” Arizona has been invaded in the worst way possible and they have lost all republican representation by having their sovereignty and right to self-determination denuded by the unelected and unaccountable Ninth Circuit.
As I observed in Stolen Sovereignty [page 100]:
One of the indictments against King George listed in the Declaration was: “He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.”
Certainly, when the federal government was created to replace King George as the national authority, they never intended to suppress states from passing laws to protect themselves and their taxpayers, not with a standing army, but at least with their legitimate state law enforcement and power over local issues. In fact, they guaranteed the help of the federal government to protect them from invasion.
In his dissent in Arizona v. United States, Justice Scalia concluded with a rhetorical question: “[W]ould the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? ... if securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”
Our founders certainly feared that their experiment might result in the collapse into an executive oligarchy, but they certainly never envisioned powers of King George being wielded by a judicial oligarchy, much less a puny lower court existing at the pleasure of Congress.
Daniel Horowitz is a Senior Editor of Conservative Review. Follow him on Twitter @RMConservative.