If nothing else, the Trump administration will at least countermand the policies of the Obama administration that were enacted without Congress, right?
Well, not if we, as a body politic, agree to the Democrat judicial game of “heads we win, tails you lose.”
How would you describe this political dynamic? Even in the best-case scenario, with Republicans winning control of all branches of government, they won’t pass a single good piece of legislation that will have a meaningful effect on a single important issue. They will not fight on the must-pass budget bills because that would risk a government shutdown, which “Democrats always win.” Thus, a Republican president, Donald Trump in this case, is left with the items he can accomplish executively. But then any lower court at any time can shut that down and even force the president to continue the lawless policies of his Democrat predecessor, even when the Supreme Court recently ruled differently. And that is the outcome when Republicans are in charge.
I call that political checkmate. Excuse of 60-vote threshold + RINO leaders in Congress + unlimited royal powers accorded to any one of the 673 district judges = the Left winning all the important policy outcomes in the long run.
As conservatives continue to celebrate the Mueller victory, which clears an obstacle in the path of President Trump, it’s important to begin questioning what is it we ultimately hope and expect to accomplish during the next two to six years. The dream scenario for 2020 would be Republicans retaking the House and President Trump winning re-election. But unless conservatives change tactics, nothing will be different from the first two years of the Trump administration. Republicans will still be nowhere near 60 votes in the Senate, and at least half the GOP senators don’t support meaningful conservative ideas, Trump’s campaign promises, or both.
So that leaves us with executive actions taken pursuant to Trump’s inherent constitutional authority or delegated authority under statute. Well, the courts have “struck down” 63 administrative policies for anything meaningful Trump has tried to do … except for banning bump stocks, of course.
OK, so Trump can’t use his lawful authority to plow new ground, but he can at least countermand executive policies of his predecessors?
No, not if we continue to agree there is legitimacy in lower court universal injunctions. The courts have been allowed to indefinitely nullify numerous actions where Trump was merely rescinding Obama’s power grabs, from immigration and environment to labor and education. Just last week, the D.C. district court blocked the administration from issuing oil and gas leases for drilling on 300,000 acres of land because in the view of an Obama judge, the administration didn’t take into account “climate change.” So now the courts are codifying Obama’s drilling moratorium into law.
What this also demonstrates is that, even when Republicans are in charge, it’s not just that we are failing to make progress on the issues. We are sliding backwards. If we continue to agree to even lower court judicial supremacism, the courts will codify the Green New Deal, Medicare for all, and open borders into law long before Democrats have the political clout to implement them legislatively. And that way, Democrats won’t even face electoral reprisal for them, like what we saw following passage of Obamacare or what would likely happen if they pass amnesty. We now have almost all of Obama’s energy, environmental, education, and immigration policies codified into our case law, which will only grow in the courts over time.
On immigration, we have more of an open border than even under Obama, thanks to the courts. Illegal aliens will soon have more rights than Americans, and we will be stripped of any and every tool to preserve our border unless we reject lower court supremacism.
Nor is “appointing better judges” going to help. So long as the Left can go to any district court and shut down national policy, no matter the issues of standing, no matter the precedent, no matter the consequences, we are done as a nation. The Roberts Supreme Court has already shown its reluctance to rein them in, and even when they do, the Left comes back with new injunctions with slight nuances, or, in the case of a judge ordering Trump to accept transgender people in the military, downright defying the Supreme Court.
This creates a legal, policy, and political velocity for the Left to win 50-year cultural, fiscal, and social battles overnight in the courts.
What’s more, the most important circuit – the federal circuit in D.C. – is in Democrat hands for the next generation. Democrats have an 11-3 majority at the district level and a 7-4 majority at the appellate level. Most of the younger judges on the active bench are Obama appointees. Almost every single regulatory case dealing with Trump’s discontinuation of past administrative power grabs is routed to this circuit.
Just take the Department of Education, for example. Not only have Republicans, with full control, increased the Department’s funding levels to record levels, the courts are continuing all of Obama’s power grabs. As Politico reported last week:
Judges have rebuffed DeVos’ attempts to change Obama policies dealing with everything from student loan forgiveness to mandatory arbitration agreements to racial disparities in special education programs.
As a result, the Education Department is being forced to carry out Obama-era policies that the Trump administration had been fighting to stop — stymying DeVos’ efforts to quickly impose a conservative imprint on federal education policy over the past two years.
What this essentially means is that anything a Democrat president ever does is immutable, and the few things a Republican tries to do are pretty much toast, including those acts that merely reverse the Democrat policies. Checkmate.
There is nowhere for conservatives to run or hide. There are no clever tricks left to avoid the fight we need to have over judicial supremacy. Even if we are reluctant to push back against Supreme Court supremacism, eliminating the supremacism of lower courts, which stand below the political branches, not at all on equal footing with them, would solve most of the problems. Unless we are willing to pick that fight, everything conservatives fear about Bernie Sanders and Alexandria Ocasio-Cortez will be implemented without a fight. It’s just a question of when.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.