Congress might be out for the summer, but the courts are just getting started.
While the GOP Congress does nothing to advance the platform of the party when they win elections, the Left is winning 50-year culture battles on the most consequential issues of our time through the new legislature: the courts. Federal judges have filled the power vacuum left behind by impotent legislators who are obsequious to the courts and they are giving Democrats victories on immigration, election law, abortion, sexuality, religious liberty, and wage controls in a matter of a few days that they could never dream of accomplishing through the legislature.
The worst element of this left-wing judicial coup is that they are completely shielded from electoral reprisal. At least if a Democrat Congress would enact these priorities, they’d lose the next election. Now, Republicans are on the hook for the status quo and are starring down the barrel of a wave election against them. Ironically, however, they have abdicated all their power and the Left is still in charge through the judiciary.
Here are 9 examples where the left-wing judiciary has steamrolled any hint of conservative victory in just the past few days. Collectively, these examples demonstrate that even if conservatives win a clear majority on the Supreme Court, absent congressional efforts to reclaim power from the lower courts they created, the Left will still win every culture battle and even now some fiscal battles:
- Think Trump is a racist? Then no Census of citizens allowed: The Supreme Court just ruled that one cannot legally assail the president’s unambiguous constitutional and delegated powers simply because one might opine that he’s a racist. Yet, Judge Jesse Furman on the U.S. District Court for the Southern District of New York ruled that a lawsuit from several states against including a citizenship question on the census can proceed. Even though such a question lies at the core purpose of reapportionment, Furman ruled that states had “plausibly” alleged that “because of President Trump’s anti-immigrant rhetoric,” this lawful power is somehow tainted. Once again, as we saw with the TPS case, it’s as if the Supreme Court opinion in the travel ban never happened. Also, it’s important to keep in mind that states are denuded of the power to regulate their own election procedures or internal affairs, but now they have standing to sue the federal government to denude it of its core constitutional responsibility of taking a proper census.
- Pizza delivery? Then no sovereignty: In yet another dangerous and consequential violation of national sovereignty, a George W. Bush judge in New York ruled that ICE could not deport an illegal alien. Why? Because he was a pizza delivery man and doesn’t have a criminal record. Not that judges haven’t blocked a number of deportations of criminal aliens too, including rapists and murderers, but it is simply outrageous for them to now say you must have a criminal record in order to be deported when here illegally. This is so radical, no amnesty bill ever went this far, but we now face judicial amnesty much more potent than the threat from any legislative amnesty we’ve confronted [and defeated] in Congress.
- No regulation on abortion whatsoever: A state can thwart federal immigration law and sue for more immigrants, but can’t place common-sense regulations on abortion, according to the courts. The Seventh Circuit Court of Appeals ruled Wednesday that Indiana’s law requiring an ultrasound within 18 hours of scheduling an abortion places “an undue burden” on a constitutional right. They upheld the injunction placed on the law by a radical Obama-appointed district judge, Tanya Pratt. “Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder, and challenge their own ideas and those of others,” wrote the smug Ilana Rovner on behalf of the panel. Yes, freedom of religion and carrying guns, which are mentioned in the Constitution in the most emphatic language, can be burdened by with impunity by blue states but the right to murder must not even be tainted with the guilt of an ultrasound. This is part of a slew of abortion regulations put on hold in Indiana. Courts have previously blocked them from requiring doctors to report on complications from abortions, even though government already burden’s doctors for every health care paperwork under the sun not related to assisted murder of babies. This same district judge previously blocked Indiana’s 2015 abortion law barring doctors from performing abortions solely because of genetic factors such as Down Syndrome or the unborn baby’s race or sex. She also blocked laws barring funding for Planned Parenthood. In other words, there was no point to Republicans winning the political branches in Indiana. It should be noted that even a conservative judge, Michael Kanne, concurred with the opinion because he felt that this ruling was compelled by Supreme Court precedent. Once again, we see that while liberal judges on lower courts are willing to directly disregard precedent in exact circumstances, conservative judges aren’t even willing to test the limits of precedents on abortion in nuanced cases.
- Catholics cannot limit adoptions to real parents: Remember when yours truly warned that Masterpiece Cakeshop was not a victory, but in fact a long-term loss for religious liberty and traditional values? Well, it was proven right yet again. A Philadelphia federal judge ruled that Catholic Social Services must place adopted children with same-sex couples. And in this case, even though the mayor was mean about it and demeaned Catholics, the judge still cited Masterpiece’s “narrow holding” in ruling against the religious agency. Thus, Planned Parenthood, which harvests baby organs, can claim a right to avoid health care regulations and demand public funding in court, but adoption agencies can’t uphold America’s longstanding values and the common sense of ideally placing a kid with a father and mother.
- Your daughter will shower with a boy…and she better like it: Last week, Judge Marco Hernández, an Oregon district judge, ruled that there is a civil right for someone with male plumbing who feels he is a female (or vice versa) to use the opposite gender’s private dressing and bathrooms in public schools. He said that the parents who don’t like it can choose to send their kids elsewhere. Yes, life and liberty are not in the Constitution, but apparently transgenderism is. This judge was originally selected by George W. Bush. Also last week, the Third Circuit codified switch-hitting in private dressing rooms as part of Title IX because surely that’s what Congress had in mind in 1972.
- Courts now control economic policy: Courts have become the final arbiter of cultural issues and now even border and national security issues. Thus, it was only a matter of time before they ventured into fiscal/economic issues. On Wednesday, the Eleventh Circuit, which is not even one of the terrible panels, ruled that the state of Alabama is not allowed to set minimum wage laws in a way that upsets socialists because, in their view, it hurts African Americans and violates the Equal Protection Clause. In 2016, the Alabama legislature passed a law voiding out the ability of cities like Birmingham to raise their mandatory minimum wages to a level beyond the state wage. The court found that this has a disparate impact on black workers who comprise 72 percent of Birmingham. The court alleges that racism hides “abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.” Yes, every fiscal policy can now get standing in federal court. In case you think the lawsuit against the tax cuts is a joke, watch this case carefully. Judges will now throw out all economic policies, be it welfare reform, regulatory relief, or tax cuts, based on arguments of disparate impact and racism. The panel consisted of two Democrat-appointees to the 11th Circuit and district judge Anne Conway, a Bush appointee, who also currently sits on the FISA Court.
- Medicaid must pay for gender mutilation: Well, if judges can now dictate fiscal policy to legislatures and they can redefine human sexuality they can certainly mix the two together. Last week, U.S. District Judge William Conley ordered Wisconsin taxpayers to fund sex change “surgeries” for two individuals who suffer from gender dysphoria. One of them is asking that her breasts be removed in her attempt at manhood. The judge ruled that Medicaid must cover it. What happened to the Hippocratic Oath? How is it that homosexual conversion therapy is illegal in so many states, yet courts can mandate the most gruesome forms of mutilation? Apparently, it’s now more natural for a woman to be a man than to be a woman. In Conley’s estimation, the state’s outrageous understanding of…you know…biology “feeds into sex stereotypes by requiring all transgender individuals receiving Wisconsin Medicaid to keep genitalia and other prominent sex characteristics consistent with their natal sex no matter how painful and disorienting it may prove for some.”
- No public prayer: Even though the Supreme Court already said that public prayer before a legislative session is well within our tradition, the Ninth Circuit split hairs and said a local school board cannot do the same when students are in attendance. The Fourth Circuit has already done something similar and Justice Thomas has criticized the Supreme Court for allowing the lower courts to once again violate precedent.
- No selling guns directly to our-of-state buyers: OK, so everything under the sun is in the Constitution. That means that at least we can benefit from judicial supremacy to strike down laws targeting the one real right for which the Constitution used the most unambiguous term of “shall not be infringed,” right? Wrong. Even the more conservative Fifth Circuit ruled 8-7 en banc that government can still bar handgun dealers from selling to consumers across state lines. This was a very disappointing ruling from Judge Priscilla Owen as well as two other Bush appointees.
Judge James Ho, a new Trump appointee, issued an epic dissent noting that the Supreme Court already said this is a fundamental right, yet, while we are told abortions can’t be burdened at all, purchase of handguns can be categorically prohibited from out of state. “The Government’s proposed prophylaxis—to protect against the violations of the few, we must burden the constitutional rights of the many—turns the Second Amendment on its head. Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government,” wrote Ho indignantly. Transgenderism, abortion and illegal immigration are in the Constitution, but the right to bear arms is not.
There were many more examples last week. These are just the ones that can fit into this column.
Taken together, liberals are winning more 50-year culture, fiscal, and security battles over the course of one week in randomly-shopped courts than they could ever hope to win through legislation. Even in 2009, when they had the White House and Congress, Democrats could never hope to get most of these things passed through the front door with the American voters watching. Yet, elections no longer matter until the courts are dealt with. Remember, that because they have permanently altered the Constitution, everything they want to accomplish is embedded in invisible ink in that sacred document. This is how they automatically get all these cases into federal court where, unlike in most state courts, judges don’t stand for election.
Earlier this year, we laid out a blueprint of 10 ways Congress can reclaim power from the courts. Thankfully, some members have taken up the mantle. Rep. Andy Biggs, R-Ariz. endorsed on my show ideas such as splitting courts, stripping jurisdiction, and using the power of the purse. Rep. David Brat, R-Va. introduced a bill ending universal nationwide injunctions from district judges. Rep. Louie Gohmert, R-Texas has a bill to remove immigration entirely from the jurisdiction of lower federal courts. Sadly, this agenda is heresy to the swamp creatures running the GOP.
Meanwhile, the House is out of session until Labor Day while the Senate stays in a bit longer to spend more money. After that, there are only 35 more joint legislative days for the remainder of the entire year where both houses are in session together. Yet, the ACLU has the ability to pass judicial legislation every day of the year in the court of their choosing. Ironically, September will all be about the Supreme Court nominee but as we continue to demonstrate even Supreme Court picks don’t matter much until the lower court tyranny is fixed.
As November draws closer, most of the political class will be raising the stakes of the election. In reality, nothing matters until the free constitutional convention occurring daily in the courts is suspended. Until that point, we are essentially at the mercy of the ACLU.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.