So, a federal district judge scribbles some incoherent nonsense about needing his permission to regulate visas from war-torn countries, and our government obsequiously listens to his every whim. If a judge “strikes down” Trump’s warnings to Kim Jong Un, will the executive branch listen?
— Conor Finnegan (@cjf39) October 17, 2017
How did we get here? And how can we restore a constitutional system of checks and balances from the existing judicial autocracy?
The federal judiciary suffers not only from a personnel problem, but also from a systematic misconception of its own power. Judges have a much-overblown sense of their jurisdiction, final say over political issues, and their power to place nationwide injunctions on commonsense national policies.
Following yesterday’s insane ruling from Judge Watson in Hawaii, placing a nationwide injunction on Trump’s third watered-down immigration slowdown, many conservatives are responding by expressing greater urgency to confirm Trump’s judicial picks.
While Trump’s nominees appear to be stellar, conservative judicial commentators are missing the point.
We currently have a system where unelected federal judges are viewed as the sole and final arbiter of all political issues, including issues, such as immigration policy, over which the courts themselves have said for 200 years they have no jurisdiction. It’s not just the Supreme Court. We have empowered even district judges with this supreme authority and have allowed them to erroneously peddle the practice of nationwide injunctions outside their individual cases and geographical jurisdictions.
This has created a long-term no-win situation for the Trump administration and for conservatives.
All the Left has to do is use its infinite legal resources to sue any national policy or even statute in a carefully shopped district court. Even if Trump were to serve two terms, the Left will still control more than half of the district courts and more than half the circuits. There is no end to the judicial sins these judges will stoop to. They will lie, cheat, and steal to get their outcome. They will overturn the Constitution, precedent, law, established practice and tradition, and rules of standing — and then issue a nationwide injunction. The Left will always strategically go to districts within the circuits that have super-majority leftists for at least another generation, such as the Ninth, Fourth, and D.C. Circuits. Thus, the Left will win every appeal.
Given that the Supreme Court is slow to take up these cases, particularly with the reluctance of Roberts and Kennedy to fully uproot the premise of these lower courts, this revolutionary “jurisprudence” is allowed to percolate for quite some time in the lower courts and creates an infinite and immutable inertia away from settled law within months. For example, in a matter of just a year or so, we have gone from the political branches having 100 percent control over immigration (“plenary power doctrine”) to the courts having 100 percent control and the president having to submit ample evidence of a need to slow down immigration from any targeted country before a district judge.
Taken in totality, there is no point to winning elections, unless we reform the courts. While Trump is doing a good job picking good judges, the capacity of a good judge to do good is nowhere near the capacity of a bad judge to do bad. There is no way to actively “ratify” a policy with a good panel of judges the way we agree to allow courts to veto these policies. Furthermore, most of Trump’s appointees are merely filling vacancies of good retiring judges or circuits, such as the Fifth and Eighth, that are already decent. While Trump can make some progress on a few panels, in particular the Seventh, the fact remains that for the foreseeable future, almost all the other panels are lost.
Think of it this way. There are 94 federal judicial districts in the U.S. Theoretically, under the prevailing erroneous understanding of judicial power, if the ACLU sues Trump on an immigration ban, a deportation policy, or transgenderism in the military in all 94 districts and loses in all but one district, they still win if they get that judge to impose a nationwide injunction. This is pure insanity and philosophical proof of the fact that district judges have no such veto power.
This is happening on every important issue. Just yesterday, the Supreme Court refused to hear a DOJ appeal on a Fourth Circuit ruling invalidating the deportation of a criminal alien sex offender. A liberal Chicago judge placed a nationwide injunction on the DOJ’s order denying law enforcement grants to sanctuary cities. Minutes after the Hawaii judge demanded the president submit to him sufficient justification for cutting off visas to dangerous countries, a San Francisco judge demanded that Trump turn over all legal advice related to ending Obama’s illegal executive amnesty. Yes, Obama’s illegal usurpation of statute is now the law of the land in the eyes of the judge-kings, while immigration statutes are so wrong that the president must submit before a district judge his justification and legal advice on terminating an illegal program.
Even if these cases make it to the Supreme Court, Roberts will likely use a “split the baby” approach, and as Justice Thomas warned in his dissent on the immigration ban decision, the liberal groups will come back to the same liberal judges, who don’t respect precedent, and chip away even further.
The sober reality is that most judges retiring under Trump are the good ones. By my count, 10 of the 12 announced vacancies on appellate courts since Trump assumed office were GOP-appointed judges, many of them solid originalists. On the all-important D.C. Circuit, they are fighting hard to fill the vacancy left by Janice Rogers Brown, one of the best judges in the country. The D.C. Circuit is gone for a generation because the Left has an insurmountable majority and their judges are the young ones. So, we are fighting tooth and nail for a one percent solution when we could spend the same political capital to actually solve the problem. We could:
- End nationwide injunctions for district judges.
- Use the power of the purse, legislation, and executive power to push back against the courts in the application of rulings to specific issues. One example: Trump could veto any budget bill that doesn’t defund issuance of these visas.
- Use Art. III sec. II power to remake orientation and subject-matter jurisdiction of lower courts.
- Impeach rogue judges.
What else do the courts need to do before conservatives wake up and smell the stench of judicial supremacy?
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Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.