Imagine if James Madison were asked in 1789 who is more powerful – the attorney general or a Supreme Court justice. He’d laugh at the silliness of the question. How could he imagine a time when a Supreme Court justice would be more powerful than the attorney general or even the president of the United States?
Last Friday, Attorney General William Barr wrote a strong op-ed in the Wall Street Journal calling the practice of issuing nationwide injunctions on broad policies unconstitutional. “It is indeed well past time for our judiciary to re-examine a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration, all at the cost of public confidence in our institutions,” warned the attorney general about the growing practice of injunctions issued beyond individual plaintiffs in cases.
It’s long past time for the administration to get more aggressive in countering judicial supremacy, and this is a great start. But the conclusion of the op-ed is to essentially call on the Supreme Court to police its own branch. What happened to the executive branch checking the judicial branch? Our Founders created three separated branches. If one branch is doing something illegal, it is incumbent upon the other branches to check that abuse and certainly refuse to give it the force of law.
Barr uses DACA as an example of how judges are issuing illegal edicts. In that case, a judge demanded that Trump continue violating immigration law and grant quasi-citizenship documents to those who, pursuant to long-standing law, must be deported. How can the chief law enforcement officer of the nation violate a law to give effect to some district judge’s political opinion dressed up as a court ruling?
Judges simply have no power to enforce their rulings even when they are isolated to a legitimate case before them, much less have their musings declared as “law” that are self-executing on other branches and universally binding on all the people and states. Even for their rulings to take effect on the actual plaintiffs, judges rely on … you guessed it … the attorney general.
Our Founders designed the system that way on purpose. It’s not a bug; it’s a feature. Judges are unelected and life-tenured. To provide them with any enforcement power would have been antithetical to republicanism. The Founders gave the power of enforcement to the executive branch and the power of the purse to the legislative branch to check the judicial power, the same way the power to decide individual cases under the law was given to the judicial branch to check the other branches.
Alexander Hamilton, in the seminal essay on judicial power (Federalist No. 78) wrote clearly that “[the judiciary] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Eleventh Circuit Judge William Pryor once explained Hamilton’s assertion as follows: “Hamilton’s point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.”
Which brings us back to the attorney general. If he knows that judges are illegally concocting judicial remedies that go beyond legitimate plaintiffs, if he knows they are violating the law on sovereignty, if he knows they are giving standing to absurd parties, he has an obligation not to give effect to those usurpations. There is no magic activation triggered by a court’s opinion. It all depends upon the executive branch giving it effect.
Let’s say a judge turned on the lights in his courtroom with no official case or plaintiffs, simply banged the gavel, and declared, “Such-and-such policy or law is enjoined.” Was a law or policy magically shredded? Any sane person would say that it is a flagrant usurpation and he has no more power to back up his usurpation than I have to demand that Trump meet with me in the Oval Office once a week.
Thus, if a judge gives standing to a straw-man plaintiff who should never have standing to create a phantom constitutional right that never existed in violation of the judicial branch’s own case law, and the executive branch knows this to be true, the attorney general has an obligation to treat the musing the same way he would in my hypothetical case. Executive branch officials, beginning with the president and then the AG, owe their allegiance to the Constitution. The same way a judge, under the principle of judicial review, has the responsibility to rule on his case in concert with the Constitution without regard for the actions of the other branches, the executive branch has an obligation to uphold the Constitution without regard for usurpations of the judicial branch of government.
My hypothetical fake court case is quite literally what is going on today, with numerous lawsuits designed to give rights to 7.8 billion people to crash our border. A judge in San Francisco is giving standing to third-party organizations like the ACLU to sue against international agreements on asylum Trump has forged with leaders of other countries. There is no legitimate standing for such cases. The president’s power is inherent in international affairs, and that very court’s own case law says the president has inherent authority over the decision whether to grant entry to aliens.
It would be comical if it weren’t so sad, but the ACLU said in its complaint that it has valid standing before the court because “the asylum policies would saddle the groups and their attorneys with a tremendous amount of additional work.” This is literally the same thing as a judge ruling on a case in an empty courtroom without a case at all, yet Judge Jon Tigar just issued a nationwide injunction dealing with future hypothetical border-crashers who have never been in this country. Against international law, much less our own laws, Tigar said Trump must let in anyone who could have declared asylum in Mexico. If the only answer to this is for the president and the attorney general to come crying to the Supreme Court, then we have already lost our country.
Even if the Trump administration would ultimately rather have the Supreme Court deal with this issue than check the lower courts itself, it is a dumb strategy to completely concede that the administration will never shut down judges itself. Chief Justice John Roberts likely feels no sense of urgency to take these cases up and come to a resolution absent a more aggressive posture from the administration. If the administration threatened to withdraw executive enforcement of illegal opinions, Roberts might be more motivated to have the Supreme Court deal with it “cleanly.”
Finally, as I’ve chronicled so often the past few years, because the legal profession is controlled by the Left, there is never any finality even after the Supreme Court sides with the Right on a given issue. They just come back for more in the lower courts and issue new injunctions. The entire judicial assault on the president’s authority to deny entry into the country is against the most settled Supreme Court case law. But case law is only settled if it agrees with what the Left wants to do. We’ve tried for 50 years to play and win this judicial game. It’s time for a new strategy.
We will never have a constitutional republic until we go back to the time when we had three separate and co-equal branches of government. He who laughs last laughs best. If it is the assertion of our political leaders that the judiciary always gets to laugh last, then we have an unelected oligarchy in place of a republic.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.