In response to the laughably partisan and “absolutely appalling” ruling on the latest draft of his moratorium on travel from six high-risk countries, President Trump sounds like he’s open to taking the first real step toward fixing our runaway judiciary.
In his Wednesday remarks at a rally in Nashville, Tenn. regarding District Judge Derrick Watson’s ruling, Trump referenced stripping power from the federal judiciary, saying:
“People are screaming break up the Ninth Circuit. I’ll tell you what … take a look at how many times they have been overturned with their terrible decisions.”
Currently, said circuit is composed of nine Western states and the territory of Guam. What this means in practice is, thanks to blue-slip tradition in the judiciary committee – which effectively subjects blue state judicial appointments to approval from blue state senators – liberal jurists from California, Hawaii, Oregon, and Washington end up ruling on cases in Alaska, Arizona, Idaho, Nevada, and Montana.
So, not only is the Ninth Circuit a primordial ooze for bad, oft-overturned jurisprudence, but it subjects millions in red states to blue state super-legislation (as the majority of federal cases never go to the Supreme Court). It also subjects everyone involved to an overburdened circuit taking a disproportionately long time to serve justice.
While Trump’s opponents will surely see the suggestion as cause for yet another hysteric meltdown, Congress has the power to do just this — and more — by simply passing legislation.
The problems that the President's travel moratoriums have brought to light are the rule of our federal judiciary — not the exception.
In fact, not only does Congress have the power to break up a circuit, they can limit what kind of cases judges are allowed to hear and redefine them out of existence, if they so choose. This a necessary check on the branch placed into the Constitution by the framers to be used as a curb against a runaway judiciary (e.g. the one we currently have).
Sen. Ted Cruz, R-Texas, also discussed the same concept just a few weeks ago at a closed-door press gaggle when he said that Congress should use “all authority to rein in the abuses” of activist courts and judges, with limiting jurisdiction as an option.
There are several different ways the Ninth — or any other circuit — could be broken up.
First, and possibly the most expedient remedy, would simply be by splitting the court down the middle. There are already bills in Congress to this effect that were introduced before the circuit’s last travel-ban ruling. There already exists legislation to do this, introduced by Rep. Andy Biggs, R-Ariz., who’s stated that citizens of the Grand Canyon State ought to be free “from the burdensome and undue influence of the 9th Circuit Court.”
Another option would be to completely scorch the Earth, disband the Ninth as it currently stands and start over with a more locally-focused system which could employ three, four, or as many new circuits as deemed necessary. This would deal with the problems listed above while also sending a symbolic message to the rest of the judicial branch that the people – via the legislature – are the ultimate arbiters of the government.
But these fixes, while necessary, are ad hoc solutions to a systems problem. The issues that Trump is running into with this travel ban aren’t confined to the Ninth Circuit. The judicial branch is loaded with progressive radicals who share the same jurisprudential outlook as those who issued the Ninth Circus’ last clown-show decision.
The problems that the President's travel moratoriums have brought to light are the rule of our federal judiciary — not the exception. As pointed out in greater detail by Daniel Horowitz here, righting the constitutional ship will need a far more sweeping overhaul than simply tackling the Ninth Circuit. The Fourth Circuit judge who followed on Derrick Watson’s coattails to block the ruling in Maryland for reasons just as tenuous is just one example of this.
The real problem isn’t just a couple of radical rogues in the West and elsewhere, it’s a top-to-bottom approach of – as Justice Antonin Scalia called it – “social transformation without representation.” The real answer is the kind wholesale judicial reform laid out in Horowitz’s book, “Stolen Sovereignty.”
Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMaddenCR and on Facebook.