Gone are the days when we were ruled by nine unelected black robes. That is old-fashioned. The Millennial version of post-constitutionalism is that a liberal group can get any of the 670 district judges in one of the 94 district courts to rule on any abstract public policy – be it fiscal, social, cultural, national security, border – and that is regarded by the political class as “law.” That includes even when Obama himself violated the law and invented a policy that never existed since George Washington. Trump is now compelled to allow Obama’s policies to rule as a third term. Who needs a constitutional amendment to expand the terms of Democrat presidencies when you have the courts?
Obama’s presidency binds us forever
Late Friday night, a district judge in Alaska ruled that Trump must continue Obama’s moratorium on drilling permits in the Arctic Outer Continental Shelf. Sadly, it’s not even newsworthy when a judge mandates that Trump continue Obama’s discretionary and often lawless executive orders. And of course, the Republican Party treats it as a legitimate order and continues to peddle the myth that judges have such power. But this particular order was jarringly, absurdly transparent in giving away the game of the legal profession.
“The wording of President Obama’s 2015 and 2016 withdrawals indicates that he intended them to extend indefinitely, and therefore be revocable only by an act of Congress,” wrote Judge Sharon Gleason, an Obama appointee, about Obama’s decision to permanently lock up 98 percent of the Arctic Outer Continental Shelf from drilling. Read that carefully again, and you will see what I’ve been warning for the past few years. Now that even conservatives have conceded that district judges can abstractly “veto” public policy up to and including simple executive decisions to reverse the executive decisions of the past administration, it’s as if they have crowned Obama president forever. So long as a Democrat president desires his policies to remain permanent, well, permanent they must remain. In the words of Gleason, Trump’s decision to merely restore the permitting process in place before Obama is “unlawful” and “exceeded his authority” because he is bound by the discretionary and often lawless policies of his predecessor.
So what if Trump announces a shutdown of all cross-border migration this week, and a judge tells the next Democrat president, “Of course you must continue it. Don’t you know that President Trump indicated he meant it to stand indefinitely?”
Once again, I ask fellow conservatives, at what point is the power grab of lower court judicial supremacy a bridge too far? We always push back against the other branches of government when they abuse their power. Why not the judiciary, the weakest branch?
Courts don’t have power to control public policy. They can grant relief to legitimate plaintiffs with standing before the court to protect individual rights. If environmental groups, about 10 in this case, decide to complain about a public policy they disagree with, a court ultimately lacks any concrete constitutional authority to tip the scales of politics to that political group. If plaintiffs with an individualized and concrete injury are seeking personal exemptions from a mandate, a court may grant that to them. But if they are seeking judicial orders on other people’s rights or privileges under the law, in this case, a process of issuing drilling permits, that involves separate (and stronger) branches of government. A court simply has no power to mandate policy changes like that, much less a lower court, much less when the policy was clearly invented by a previous president.
The illegal injunction issued by Sharon Gleason comes on the heels of another injunction issued by an Obama judge to lock up 300,000 acres of drilling in Wyoming. Again, in that case, the court said that Trump cannot hand out drilling permits without using Obama’s criteria for an environmental assessment, which takes into account the effects of undefined “climate change,” a policy that never existed before Obama invented it without legislation.
The increase in oil and natural gas output has been America’s own Hanukkah oil miracle and has largely fueled economic growth and also bolstered our diplomatic prowess over Russia and Arab countries who use oil to intimidate the West. Yet we risk losing all this progress because of illegal injunctions from forum-shopped judges who seek to anoint Obama president forever.
Judges have stolen marriage, life, election law, borders, sovereignty, health care. Now they are coming for oil and gas, the lifeblood of our economy. With the flick of the pen, we are told that random environmental groups can lock up 27 billion barrels of oil even though the federal government and the state of Alaska are OK with the permitting process. “As a result, the previous three withdrawals issued on January 27, 2015, and December 20, 2016 will remain in full force and effect unless and until revoked by Congress,” wrote Queen Gleason in her 32-page order.
Earlier in the day, the same district judge blocked the construction of a vital road connecting the Alaska Peninsula communities of King Cove and Cold Bay to a local all-weather airport. This is a vital job of government supported by the local communities, the state, and the federal government to protect the communities from emergency events. But a single federal district judge can grant standing to random agitation groups and issue a “veto” the Constitution never authorized.
It’s time to move beyond simply ‘appointing better judges’
Everyone keeps asking me what is to be done about runaway judges. But at some point, the question answers itself. When judges so blatantly violate rules of standing, reading of statute, constitutional construction, and the powers of other branches, the real question is why the other branches obsequiously enable their power grab. Our Founders purposely gave courts no enforcement mechanism or power of the purse precisely so other branches could push back when they abuse their powers, the same way judges can push back when other branches abuse their powers by adjudicating individual cases under the law.
Unfortunately, nobody in Congress or in the administration is even pushing to shadowbox the courts. Later this week, the Senate will invoke the nuclear option to truncate the debate time required in order to successfully confirm a judicial nominee. But that’s missing the point. The majority of the vacancies are filling seats left open by more conservative judges. While it is certainly important to take the confirmation opportunities that exist, this will not solve the judicial crisis, assuming we continue to accede to the premise that any forum-shopped district judge can shut down our nation, no matter how absurd his ruling is. If a single district judge has more power than anyone in the executive and legislative branches put together, we have no country left.
This injunction, like most others, will now go to, of course, the Ninth Circuit. It will take months if not years to get this vital policy to the Supreme Court. Then, the SCOTUS justices are very reluctant to take up the appeal, so we are governed by illegal universal injunctions of lower courts indefinitely. Last year, the Supreme Court took up fewer cases than at any time since the Civil War, while lower courts are hearing a record number of cases. Even when they do take up the appeal, Roberts and Kavanaugh ensure that the opinion is not written categorically enough to preclude the next round of litigation, so the Left comes back to the same forum-shopped courts to get a second injunction on the policy from a slightly different angle.
The power of the courts to engage in judicial review over agency regulatory policy comes from Sections 701-706 of the Administrative Procedure Act. Congress must revise 5 U.S.C. § 702 to raise the threshold for injury-in-fact, causation, and redressability for third-party groups suing for non-economic or phony economic grievances. Eco groups should never have standing in court to simply oppose policies they disagree with when agencies are following the letter of the law.
Yes, the time has come for Republicans to stop using 100 percent of their political capital on confirming judges, thereby raising the legitimacy of judicial supremacy even more. It’s time they use their capital to narrow the scope of rules of standing, justiciability, and jurisdiction of the courts so that we can actually keep political questions within the sphere of those who stand for election.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.