No, the Constitution doesn’t vest the lower courts with the power to immediately shut down our sovereignty. Congress has complete control over courts’ subjects of jurisdiction, as well as the appellate jurisdiction of the Supreme Court. This was made evident by a pair of high court opinions issued this week. These cases were relatively low-profile, but if Congress were paying attention, these cases should provide a blueprint for dealing with the political tyranny from the lower courts.
Tuesday, the Washington Times published an analysis of a trend we’ve been observing here for quite some time: How district judges have illegally seized the weapon of nationwide injunctions to place a national, illegal veto on every practice, tradition, law, and policy under the sun. The article quotes from legal scholars noting that this trend is very new and it has expanded the role of a court from settling disputes between two plaintiffs to essentially vetoing and determining national policy.
Here’s the problem in a nutshell: Leftist organizations can take any executive action and find a radical district judge within a liberal circuit to enjoin the entire practice nationwide and automatically win the appeal. They get to determine where to litigate any issue that is national in scope and will never take it to a circuit where they will lose. Thus, none of the good judges Trump is appointing in places like the Fifth and Eight Circuits will ever hear these cases. The Left wins every time, and there is never a circuit split, so the Supreme Court takes up appeals slowly, if ever. This is how we have the most extreme judges shutting down national policy and violating Supreme Court precedent and rarely being rebuked before their edicts do irreversible damage to our country. It also has the effect of swaying public opinion against a policy, because voters are treated to constant headlines of “Trump’s policy struck down,” or “Another Trump action ruled unconstitutional,” even though the Supreme Court justices would eventually overturn it if the case actually came before them.
Congress could simply clarify, in the Rules Enabling Act governing the administrative procedures of the courts, that the courts lack any power to issue nationwide injunctions beyond the individual plaintiff. Dave Brat’s bill does just that.
But if members of Congress were paying attention to the Supreme Court this week, particularly to Justice Thomas, they would see that their power over the courts is much more expansive than they think.
Ideally, the plain language of Article III Sec. II, along with its robust history, should be enough for Congress to remember that it has the power to determine any subject-matter jurisdiction and rules of standing before a federal court. But we all know that the Constitution is no longer the law of the land; the Supreme Court is. So, let’s review what the Supreme Court said this week.
Patchak v. Zinke
Patchak v. Zinke was a very complex multi-tiered litigation by a Michigan private landowner who sued the interior secretary for taking over neighboring lands into a trust so that an Indian tribe could build a casino. The details of the underlying case are not important for our purposes. What is relevant is that after the first round of litigation over whether the plaintiff had standing, Congress passed legislation kicking all federal courts out of this arcane issue, something we have long called for on important political issues. In 2014, Congress passed the Gun Lake Trust Land Reaffirmation Act, which stated that any legal action “relating to the land [in question] shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Thus, Congress categorically blocked all federal courts, including the Supreme Court, from adjudicating any claims about this land.
On Tuesday, the high court released an opinion, 7-2 in judgement and 6-3 on the merits, in favor of the act of Congress. The majority ruled that Congress can categorically strip the courts of any jurisdiction over a particular subject, even when it is clearly intended to influence the outcome of only one particular case that is already in the process of adjudication. All nine justices affirmed the plenary power of Congress to strip jurisdiction over entire categories of subject matter from the courts. The only disagreement was whether Congress can use jurisdiction-stripping to reverse a specific case that is already pending in court. Justices Roberts and Gorsuch dissented because they felt this law went too far and was tantamount to actually engaging in the judicial power. Justice Sotomayor agreed with the rationale of the dissent but sided with the majority in upholding the act of Congress for a technical reason. Yet the six other justices were clear that even in this case, Congress was exercising its legislative authority over the judiciary, not actually ruling in favor of a particular plaintiff, even if indirectly that is the outcome and even the intent of Congress.
Writing for the majority, Justice Thomas observed:
Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.
And more specifically to this case:
[T]he legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.
In other words, while Congress can’t exercise the judicial power (“In Smith v. Jones, Smith wins,” for example), the legislature has the power to exercise full control over the judicial branch of government. Contrary to what you hear in the political class, the judiciary is not supreme or even equal, at least not in the traditional sense. And if Congress exercises its legislative powers and Art. III Sec. II powers to make “exceptions and regulations” to the jurisdiction of the courts, then courts cannot rule on that particular matter.
Specifically related to immigration, there already are existing statutes that do just that, yet they need to be asserted more clearly and expanded. The Department of Justice won’t even assert them in litigation. Which brings me to the next major opinion from this week.
Jennings v. Rodriguez
In 2013, an extreme district judge in California gave standing to a criminal alien going through deportation proceedings to sue on behalf of all detained aliens and demand bond hearings. The district judge and the Ninth Circuit essentially ruled that criminal aliens (whom even Obama wanted to deport) must be given bond hearings every six months to be released into our communities, even though they are the consummate flight risk. They, of course, applied a nationwide injunction.
Thankfully, after this injunction hampered for years our interior enforcement and turned America into a dumping ground, we got relief from the Supreme Court, which voted 5-3 (Justice Kagan had to recuse) to remand the case back to the Ninth Circuit.
Clarence Thomas and Neil Gorsuch issued a concurring opinion, noting that the courts should never have granted standing to this alien to begin with and that the case should immediately be dismissed, not just remanded. Existing law (8 U.S.C. §§ 1252(b)(9), 1226(c)) already kicks the courts out of this case altogether, in their opinion. Thomas seemed bewildered that the DOJ didn’t even assert this argument. This is a point I’ve made, that the DOJ didn’t assert a similar jurisdiction-stripping provision (§1201(h)(i)) against litigation pertaining to denial of visas as part of the immigration pause executive order.
Justice Alito, writing for the plurality, disagreed on technical grounds because he read the statute differently, but it is clear that five justices believe Congress clearly has the authority to kick the courts completely out of most immigration litigation as long as the statute does so clearly.
The three liberals, of course, made the argument that denying bail to criminal aliens in deportation proceedings would violate the Constitution (their version of it), and as such, Congress could not pass a law sidelining them from such litigation. But we already knew they would say that. However, even under their system, although bail against indefinite detention without deportation is a constitutional right, there is no right to immigrate or not to be deported, and there is no reason Congress cannot strip the courts of the power to adjudicate such cases.
It is more clear than ever now that in cases pertaining to life, marriage, immigration, election law, religious monuments, and religious liberty, five justices should easily agree that Congress can certainly prospectively strip the courts of jurisdiction when the statute is not aimed exclusively at a particular pending case as a means of siding with one party. And most certainly Congress can do so just for the lower courts, which have posed the most serious problems for our country. Even the four most liberal justices, who assert that Congress can’t strip the Supreme Court of power to hear an appeal on what they deem is a constitutional right, must agree that since Congress could abolish the lower courts altogether, Congress can strip the lower courts of jurisdiction while leaving an avenue to appeal directly to the Supreme Court.
So why is almost nobody in Congress or at the White House demanding legislation that says, in effect, “any legal action relating to litigation against a deportation or the granting of affirmative rights to illegal aliens shall not be filed or maintained in a Federal court and shall be promptly dismissed”? Or on life and Christian memorials?
The sad thing is that so many members of Congress are ignorant about the powers of their own branch of government. Thus, we will continue to be ruled by unelected federal judges who serve for life.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.