A semi-retired judge in a congressionally-created court might want to ban Computer Aided Design (CAD) files of 3D gun prints he doesn’t like, but it doesn’t mean we no longer have a 3-dimensional system of government. We still have two other branches of the federal government with more robust powers. The question is: will the case of a district judge granting random states standing to bar nationwide the publishing of blueprints for 3D prints of guns be the final straw that will galvanize conservatives and libertarians to finally put the courts in their place?
A unified rallying cry on shared constitutional values
The Attorneys General of Connecticut, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Oregon, Washington, and Washington, D.C. sued Defense Distributed, which has developed these blueprints for 3-D gun printing and sought from a couple of state and federal courts to place a temporary restraining order (TRO) against the uploading of such files on the company’s website. While a state court in New Jersey denied the request for a global injunction, a federal judge in the Western District of Washington (conveniently ensconced in the 9th circuit for appeals), Robert Lasnik, issued a nationwide TRO against not just Defense Distributed but everyone’s First Amendment right to download such files. Yes, a single semi-retired judge issued a nationwide injunction on an abstract and hypothetical concept of simply distributing a CAD file. Folks, there is no First Amendment anymore.
Defense Distributed, a Texas-based company run by libertarian Cody Wilson, planned to release these files for free on their website today, but suspended the plan following the court’s ruling.
Current federal law [18 U.S.C. § 922(p)] already prohibits anyone from possessing an undetectable firearm. Thus, if someone actually successfully created a gun that worked from this blueprint, they’d be required by law to register it. All the company is doing is sharing information, not an actual firearm. They can share this information on a 2-D printer. This is straight up First Amendment, even without entertaining a broader debate over regulations on the Second Amendment. Imagine a conservative judge placing a nationwide injunction on a CAD file used for 3D printing of surgical instruments used for abortion simply because he had moral issues with the practice? Amazingly, the judge didn’t even address the First Amendment in an order stating that plaintiffs will likely succeed on the merits of their case!
What is so potentially helpful about this case is that it unites libertarians (who seem to dominate the “right-leaning” legal profession) with conservatives. Until now, when the courts were unilaterally nullifying life, marriage, election law, and immigration law, it was hard to get the libertarian legal eagles stoked about judicial tyranny. Now it’s time for an immediate and robust discussion about what to do with the lower courts. As I’ve warned, district judges are now placing injunctions on fiscal and economic policies the same way they did on social issues.
An unprecedented ruling
First, as it relates to nationwide injunctions, the New Jersey judge only enjoined the uploading of files to New Jersey IP addresses. The Washington judge, even if he had a tortured view of the First Amendment, should have done the same for the Western District of Washington. Yet, given that he didn’t understand the First Amendment, Judge Lasnik also didn’t understand the Article III role of courts to adjudicate cases and controversies vs. being a super legislature. Nationwide injunctions are unconstitutional.
Second, this judge is enjoining speech that has already been in the public domain since 2013. The files were already all over the internet. It’s unprecedented to enjoin such information.
Third, the Obama administration sought to regulate Cody Wilson’s endeavor, but Trump merely reversed that decision. This is another example of a court mandating that Trump continue Obama’s elective policies.
Fourth, this is yet another case where Congress explicitly removed authority from the courts to hear this case, yet the judge disregarded the law. What the judge essentially ruled is that the State Department must suspend a settlement with Cody’s firm, and instead, regulate his activity under the Arms Export Control Act (“AECA”) and International Traffic in Arms Regulations. But those laws don’t allow courts to review such determinations (or lack of determination) by the State Department, a case made by Cody’s attorney, the famous legal academic, Josh Blackman.
In that sense, it is Judge Lasnik who is an anarchist, not Cody Wilson.
The Supreme Court said in 1812 that lower courts “possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer.” Just this term, the Supreme Court said, “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.” Yet, judges have granted standing to sue for Temporary Protected Status where statute strips judicial review in such cases and have granted standing to sue against denial of a visa where statute prohibits any judicial review even from the Supreme Court [8 U.S. Code §1201(h)(i)].
The executive branch cannot punish a private citizen when court violates the Constitution
Which brings me to the final point. Isn’t it high time for the executive and legislative branches to finally push back against the civil disobedience of the judiciary? I’m not suggesting they “disobey the courts” who themselves are disobeying law and the Constitution. I’m suggesting they merely decline to use their lawful executive and legislative powers to violate the Constitution and to actively buttress an unlawful court opinion, especially when the court lacks jurisdiction.
There’s a big distinction between the two propositions. A case of the executive branch disobeying a court order would work as follows: the executive branch wants to imprison or execute an individual, thereby placing a positive action on his negative rights. They might well be justified in doing so under the law in that given case, but if that individual plaintiff secures relief from a court, even when the executive disagrees, they are bound by the ruling under legitimate exercise of judicial power placing a negative on their positive action taken against the individual.
In this case, on the other hand, as is the case in many recent lawless rulings, the courts are placing a negative on the positive actions of an individual and are also placing a positive on the negative actions of the executive branch. In this case, the judge is prohibiting an individual, and indeed, the entire country, from exercising First Amendment rights by mandating that the State Department regulate such activity. The judiciary doesn’t have such power. They can’t effectuate a regulation. This is where Attorney General Jeff Sessions should come in and say he has an obligation to follow the Constitution.
Remember, ultimately, the courts have no enforcement mechanism. It’s the executive branch that sends out the U.S. Marshals to arrest the individual. Thus, a judge can prohibit an individual from speaking, but the executive branch can make it clear, and indeed, in this case, must make it clear that they will not arrest him. Likewise, Congress can step in and downright prohibit funding for the use of Marshals in contravention to freedom of speech.
It can truly be said that this is the quintessential case for which Hamilton said in Federalist 78 that the judiciary has “neither FORCE nor WILL, but merely judgment” because it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Which is why Hamilton laughed off the concerns of the anti-federalists that judicial review would lead to judicial supremacy. He understood that if the courts would ever usurp their power, the other branches would simply use their stronger powers to properly apply the Constitution.
As I’ve explained before, this is the core difference between judicial review and judicial supremacism. The very rationale behind judicial review in Marbury is a repudiation of judicial supremacism because just like the court must give relief to a plaintiff with legitimate standing against an unconstitutional statute, the other branches must not give force to an unconstitutional court ruling, particularly when it demands they actively violate the Constitution by imprisoning an individual.
This is a real test for the libertarians who are also judicial supremacists. To simply say, “let’s just appeal this decision” is to continue the tyranny. It will take months if not years to get to the Supreme Court to take up the case while the Ninth Circuit upholds this travesty. Even after the justices deliver us a victory, as we’ve seen in a number of other cases, the Left will continue to come back for more in the lower courts. Until we slay the beast of judicial supremacy and demand that all branches of government only use their powers in concert with constitutional powers, we have no liberty.
The Bill of Rights cannot afford death by a thousand forum-shopped lawsuits.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.