Whenever we think it’s impossible for judges to grow even more lawless, they stun us with their audacious power grabs. In 2016, I wrote a book warning that the courts would start issuing judicial amnesty, but I’m stupefied by the speed with which my prediction came true and even more dumbfounded by the silence from congressional Republicans. Is there nothing the judiciary can do that will elicit a meaningful reaction from Congress or from the so-called legal conservative movement?
Amidst a flurry of insane decisions on immigration and abortion, Judge John Bates, another Republican appointee who sits on the very liberal U.S. District Court for the District of Columbia, issued an order demanding that Trump not only hand out renewals to Obama’s illegal DACA program, but that he accept new applications. The administration has already been issuing, on average, 757 renewals since district judges in New York and San Francisco issued judicial amnesty; 64,000 applications have been submitted against the law.
It’s not an exaggeration to suggest that this opinion, coupled with the court cases forcing the president to accept an unlimited number of visas from the Middle East, is the most radical opinion ever to surface from the judiciary in modern history.
An illegal alien can get standing to force a president to violate the law
Israeli Supreme Court Justice Aaron Barak once declared, “Everything is justiciable.” For years, we looked at Israel’s judicial system as the canary in the coal mine of tyranny that would confront us here unless we changed course. Robert Bork warned about the example of the Israeli Supreme Court. Yet now our system is even worse because simple district judges, not just Supreme Court justices, now have the ability to grant standing to illegal aliens and make any political issue justiciable. Worse yet, unlike Israel, which is now seeking to limit the power of the courts, our legislature is utterly worthless.
Judge John Bates, a George W. Bush pick, was “nice enough” to place a 90-day stay on the implementation of his ruling. And get this, the judge said that Trump’s decision was “virtually unexplained.” Trump must now mollify the courts with sufficient rationale if he wants to rescind something that never existed from 1789 until Obama’s second term, whether it violates statutes and the underpinnings of national sovereignty or not.
But if the Trump administration personnel plan to follow such an order, they have nobody to blame but themselves. There is no middle ground in this case. The most foundational sovereignty laws prohibit the president from unilaterally issuing amnesty. A judge cannot demand that an executive power take an action against the law of the land, in contravention of the Constitution. He must either follow the judge or the law and the Constitution.
Mandatory appeals of radical lower court opinions
How appropriate that this opinion was rendered as the Supreme Court is hearing oral arguments in the so-called travel ban case. While most observers expect Trump to narrowly prevail, the fact that it took 14 months for the president to implement a power that settled law deems his own demonstrates the danger the lower courts pose to our country. Trump has already watered down his order twice, so the original order won’t even be debated.
Obviously, Congress must strip the lower courts of any power to adjudicate immigration cases. Absent such a move, they should at least pass Dave Brat’s bill (H.R. 4927), which would end the ability of the courts to apply their rulings outside their case or geographical jurisdiction. But there is one more important option for Congress to consider.
Because the Supreme Court takes up relatively few cases and because the Left shop litigation on political issues to circuits in which they will likely prevail, these hot-button cases rarely suffer a circuit split, and as such, the Supreme Court is slow to take up the case, if ever. This allows jurisprudential momentum to build for some of the most radical ideas that are completely divorced from our Constitution. Even the liberals on the Supreme Court are more reluctant to issue radical opinions built upon completely new ideas without first building the legal and political momentum. Which is why they use the lower courts as their forward guard to build that momentum. Then, once it finally gets to the Supreme Court, the justices either ignore the appeal or the opinion becomes legitimate enough that they can entertain the argument and even partially rein in the lower court ruling, appearing judicious and restrained, while ultimately accepting part of the premise. This is how the courts always move inexorably to the Left and away from the Constitution.
My plan would force the Supreme Court to automatically take up an appeal immediately after a district or appellate court issues an opinion on a broadly consequential political issue. This will force these radical rulings to sink or swim immediately and show their magical judicial cards before they are ready. The new statute could allow SCOTUS to opt out of hearing the case and clogging up its limited resources if the Court stays the lower court ruling. This will not only restrain the Supreme Court, but place a check on the lower courts. At present, there is no stigma for a judge to be more progressive than the Supreme Court. Mandatory and immediate appeals would make judges think twice before issuing lawless opinions.
Ideally, Congress would reclaim power from both the lower courts and the Supreme Court, but if we are going to crown the Supreme Court as ruler over the other two branches, shouldn’t we at least make it supreme over its own branch?
Every aspect of the judiciary’s structure, proceedings, rules, and jurisdiction is controlled by Congress. The only thing Congress can’t do is to actually adjudicate a specific case. As Justice 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.”
It’s just a shame we can’t get standing in district court to sue Congress for turning over its powers to the judiciary. Evidently, there still are some things that aren’t justiciable after all.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.