“Freedom is the right to question, and change the established way of doing things. It is the continuing revolution of the marketplace. It is the understanding that allows us to recognize shortcomings and seek solutions. It is the right to put forth an idea, scoffed at by the experts, and watch it catch fire among the people. It is the right to stick—to dream—to follow your dream, or stick to your conscience, even if you’re the only one in a sea of doubters.” ~President Ronald Reagan
It’s high time for us to finally address the most pressing constitutional crisis of our time. Either we wake up and smell the stench from the bench, or we consign our entire future to a judicial oligarchy that has shredded fundamental rights, turned every word of the Constitution upside-down, granted itself more power than God. The judiciary at the height of its constitutional powers has co-equal abilities to interpret the Constitution in the small area of individual cases and controversies with legitimate standing. But now the courts have taken to themselves the powers of gods over our political and social questions.
It’s that simple: Either our system of government reflects the top of this graphic or the bottom. There is no middle ground. And until we resolve this constitutional crisis, nothing we do at the ballot box, in the states and the other branches of government, in the media, or in education will matter.
As we’ve established through an exhaustive series of articles, the federal judiciary is irremediably broken, it will not be fixed on Trump’s watch, and it is unlawfully wielding power that the Constitution does not accord it. It’s time for Congress to step onto the playing field.
Here are 10 options that Congress and the body politic as a whole can pursue to finally reassert their respective powers against the squatters of the judiciary against our Constitution, history, traditions, and values. Congress must return to its status as a co-equal player in constitutional interpretation, as was the reality until the Warren era in the ’50s.
1) Use the bully pulpit to unmask the courts. For members of Congress, the president, and the attorney general must first actually get on the playing field. They can begin by publicly delegitimizing unconstitutional decisions. Writers like myself shouldn’t be the only ones deconstructing these cases; Congress and the attorney general should write opinions shadow-boxing the courts on critical public policy issues. Professor Michael Paulsen of the St. Thomas School of Law suggests that Congress and the attorney general should each have respective “executive review” and “legislative review” offices to shadow and oppose the courts’ judicial review.
They should also take their cases directly to the American people, to help build the momentum and public support for Congress and the executive branch to stop obsequiously using their powers only in accordance with unconstitutional court opinions.
2) Limit the jurisdiction of Supreme Court. Article III, Section 2, Clause 2 of the Constitution explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court. This is plenary power and a complete remedy. The notion that Anthony Kennedy can redefine marriage and sexuality or grant citizen rights to illegal aliens or Somali Islamists and that there is nothing Congress can do to stop him is simply ignorant. As I note in Chapter 9 of my book, even John Marshall agreed the high court has no jurisdiction other than what Congress grants it (except for the few spheres of original jurisdiction established in Article III).
While Congress must respect any existing judgement granted to a particular plaintiff in a particular case, the legislative branch has the full authority to cut the legs out from under the decision by preventing it from becoming precedent prospectively. As Clarence Thomas said in a recent case, “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
3) Abolish judicial review or curtail it for lower courts; require a super-majority for judicial review at the Supreme Court. While Congress wields tremendous power over the Supreme Court’s jurisdiction, it completely owns the lower courts. Congress can make, break, divide, or regulate them at will. After all, Congress created them. As part of the enumerated powers of Congress in Article I, Section 8 and the Judicial Vesting Clause of Article III, Section 1, the legislative branch has full authority over the creation of the “inferior courts and tribunals.”
As Edmund Randolph, the very first attorney general of the United States, said, “The Supreme Court, though inherent in the Constitution, was to receive the first motion from Congress; [and] the inferior courts must have slept forever without the pleasure of Congress.” How, then, could it be that a random district judge is accorded the full authority to place what is essentially a judicial veto on any piece of legislation passed by a state or Congress? Even if one believes in robust judicial review at the Supreme Court level, it simply makes no sense that a creation of Congress has that authority.
Second but just as vital: Judicial review even by the Supreme Court should be supported by a super-majority of the Supreme Court. Why should a simple majority of a deeply divided panel of unelected, life-tenured judges be able to override the majority of an elected Congress or state legislature? If we are going to place the judiciary atop the food chain of government, at least require the institution to speak with one voice.
4) Transfer power to the state courts, which are elected. So, what if the lower courts or the Supreme Court were limited in their jurisdiction? Where would plaintiffs file suit? In state court. The advantage of having state-level courts is that most of them are subjected to some form of elections, term limits, or age limits. Thus, if the legal profession wants to rewrite statutes, redefine the Constitution, and remake natural law and fundamental rights, there is recourse for the people.
According to a recent analysis conducted by a sexual identity legal group, which analyzed 127 state supreme court cases dealing with the homosexual and transgender agendas, state courts that are elected are much less likely to issue rulings favorable to those agendas. While this left-wing group decried its findings, it inadvertently stumbled across the truth. Imagine if state courts had the final say in all the cases without meddling from the federal judiciary? That would raise the specter of elections for state judgeships even more and allow the people to mobilize. So at least if we are confronted with social transformation, it will have the consent of the people.
5) Assert control over administrative procedures. The judicial branch promulgates its rules and procedures governing the issuance of injunctions and applying precedent via the Federal Rules of Civil Procedure. Once again, from where does it derive this authority? From Congress. Ever since Congress passed the Rules Enabling Act in 1934, the federal judiciary has enjoyed a free rein in making its own rules. There is no reason Congress cannot reclaim some authority and place barriers and regulations on the ability, scope, and reach of lower court injunctions and precedents and the ability to, for example, imprison people like Kim Davis for upholding state law and adhering to her religious beliefs.
6) Block enforcement of unconstitutional opinions. One of the reasons the Framers of the Constitution discounted the concern of the Anti-Federalists that the federal courts would become the supreme authority and remake our society — as they are indeed doing today — is because the judiciary was given no enforcement mechanism. The federal judiciary relies on the executive branch to send in the marshals and enforce its decisions. Thus, our Founders anticipated that if the courts engaged in absurd behavior (say, redefining marriage or sexuality or nullifying borders), the other branches would laugh them off.
In the case of Kim Davis, it was the executive branch that sent out the marshals to arrest her when the Republican-appointed federal district judge in Kentucky issued a bench warrant for her arrest. Congress could prohibit funding for the arrest of any state official who asserts religious liberty rights.
Obviously, when a court grant relief to an individual plaintiff with legitimate standing against a positive action taken by the state or executive branch to imprison or execute him, nobody would suggest the other branches actively defy the court and execute or imprison the plaintiff even when they are certain they are right. But what about when the courts give bogus standing to foreign nationals to demand the positive action that DHS or State use its executive powers to grant visas to particular people? That is none of the courts’ business. There is no positive right to a visa, and the executive branch has the right to decline to use its power in violation of its interpretation of the Constitution or statute. The same thing applies to forcing a state to hand out gay marriage licenses, arrest Christian bakers, redraw their state flags, or rip out monuments of the Ten Commandments. If the courts want a positive action taken in contravention to our constitution, law, settled precedent, and tradition, let them come and do it themselves.
But the Founders gave them “neither force nor will” for good reason. The other branches of government have a co-equal power and downright responsibility to actively use their powers only in accordance with the Constitution.
7) Defund compliance with rogue decisions. “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” ~James Madison, Federalist 58
When the courts demand special rights and positive actions on behalf of illegitimate plaintiffs, Congress can defund executive actions or general funding for such policies. For example, in response to the courts mandating immigration policies, Congress can prohibit funding for the issuance of visas to people from dangerous countries or the issuance of Social Security cards for illegal aliens.
Alexander Hamilton wrote in Federalist No. 33 regarding tyranny from the stronger federal legislature that when it steps outside the enumerated powers to crush the states, those acts are “merely acts of usurpation and will deserve to be treated as such.” How much more so the stronger federal branches of government must treat usurpations by the unelected judiciary!
8) Tighten rules of standing. Part of why our Founders never envisioned judicial review turning into judicial supremacy is because they understood that for a judge to issue an opinion on the constitutionality of a law, a legitimate plaintiff would have to have a valid injury-in-fact with valid standing. Yet there are now tens of thousands of pro-bono lawyers working for third-party organizations that dredge up straw-man plaintiffs to tip a political question into court and essentially place politics on trial. This is what has transformed the role of the judiciary from exercising the judicial power over cases to the legislative and executive power to crafting and vetoing laws. Congress must raise the threshold for individualized injury-in-fact, causation, and redressability – standing.
9) Invoke Section V of the 14th Amendment. There is no part of the Constitution that has been adulterated and used as a tool for social transformation by the courts more than the 14th Amendment. The irony is that Section 5 of the 14th Amendment grants Congress — not the judiciary — plenary power to enforce those provisions over the states. Congress must push back by invoking Section 5 and challenging the courts legislatively on issues where they misinterpret the 14th Amendment.
10) Make impeachment great again. Impeachment, especially for judges, was not reserved for violent felons. It was designed as a congressional check on usurpation of power and bad behavior from the bench. Congress should begin impeaching lower court judges who nakedly subvert the Constitution to conform with their political beliefs, such as those who subscribe to the anti-constitutional beliefs of Judge Richard Posner of the Seventh Circuit. Although an insurmountable two-thirds super-majority is needed in the Senate to remove a judge, no judge wants the black mark of being impeached by the House. A few serious displays of force by Congress, coupled with a general newfound aggressiveness to engage the courts, will force them to back down.
Members of the legislative branch have outsourced the Constitution solely to the federal judiciary. They have closed off the Constitution from inspection by members of Congress. The Congressional Research Service, the research arm of the legislative branch, stated in a recent report that the federal courts were never intended to wield “a final or even exclusive role in defining the basic powers and limits of the federal government.” They observed that “to the contrary, the early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” The report concludes that it was the complacence of Congress over the past half-century that allowed the judiciary to declare itself supreme to the other branches and to the Constitution.
In reality, no such supremacy exists. As James Madison said, “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.