For several generations, we have been told by the political elites that the Supreme Court stands above the other two branches of government, even when the high court violates the Constitution or claims to decide a broad public policy question squarely within the purview or powers of the other branches. Now, it appears that any lower court can simply issue a ruling more progressive than what the Supreme Court just said, and the other branches feel compelled to abide by that ruling!
Remember when a slew of lower courts created a right to immigrate for the first time and issued unprecedented injunctions demanding that Trump surrender to the courts his control over the right of entry into the United States? Well, we all thought that insanity was put to rest when the Supreme Court ruled in Trump v. Hawaii that the president has unquestionable authority to shut off any or all forms of immigration when he believes it’s detrimental to American interests, as it plainly says in 8 U.S.C. §1182.
Evidently, some of the lower court judges who were overturned by the Supreme Court on this issue are now granting standing to some of the same groups to sue again! U.S. District Judge Theodore Chuang of Maryland ruled last Thursday that a lawsuit can proceed against the travel ban from five countries.
A group of refugee resettlement contractors and other immigration groups are suing because they don’t like the process the administration has set up to allow waivers of the ban. The problem is that the Supreme Court said quite clearly that the president can disallow migration without offering any waivers whatsoever. Chief Justice Roberts could not have been any clearer:
“By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts in the majority opinion in Trump v. Hawaii. “It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.” (Emphasis added.)
Yet there is no stigma in the legal profession against lower court judges attempting to obstruct and twist Supreme Court rulings they disagree with. Judge Chuang, without ever mentioning the fact that he himself was overturned on this very issue, brazenly declared that Trump v. Hawaii was only “representing a snapshot in time and does not necessarily preclude a different determination at a later stage of the case on a more fulsome record.” From reading most of his opinion, you’d have thought it was the Trump administration that lost in the Supreme Court.
Taking that position to its logical conclusion, a lower court can always find ways that the same question presented in a slightly different case is not governed by the obvious controlling Supreme Court precedent because that SCOTUS case was only “a snapshot in time.”
Liberals are seeking similar lawsuits against the travel ban in their favorite California courts as well. In February, Judge James Donato allowed a similar lawsuit to proceed in the Northern District of California.
Clarence Thomas has warned about the need to end this practice of lower court universal injunctions, which not only violate the separation of powers between the courts and the other branches, but also essentially strip the Supreme Court of its legitimate supremacy over the judicial branch itself. In June 2017, Thomas warned, after the Supreme Court initially removed only part of the lower court injunction against the travel ban, that the forum shoppers would continue to go back to the same repudiated lower courts. “Litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected,” warned an irate Thomas during the preliminary stages of the lawsuit.
If these same district judges place another injunction on Trump’s partial immigration moratorium, will he suddenly begin issuing visas to these people unless the Supreme Court steps in yet again? How can the Supreme Court both (wrongly) be regarded as supreme over the other branches but not supreme over its own inferior courts? According forum-shopped judges, they have the power to continuously alter public policy for years until the case reaches the Supreme Court, not only when we know they will be reversed but when they have already been reversed. This is a recipe for a banana republic.
This is part of a broader trend of lower courts “repealing” Supreme Court opinions they don’t like. In one of the most egregious rulings of all time, a California judge said that Trump must continue the discretionary and temporary program of Temporary Protected Status (TPS) because Trump, in the estimation of Judge Edward Chen, has “animus against non-white, non-European immigrants.” SCOTUS already said in Trump v. Hawaii that such considerations cannot be used to block the president’s lawful authority, but the Trump administration refused to delegitimize this ruling.
More recently, two federal judges, one in Oregon and one in Washington, issued injunctions against Trump’s gag rule prohibiting Title X recipients from referring women for abortions. The Supreme Court upheld this exact regulation under Reagan in Rust v. Sullivan (1991), but Judges Michael McShane and Stanley Bastian ignored it.
Lower courts have similarly gutted the Heller decision over the past decade, often citing Justice Breyer’s dissent. Recently, a federal judge in Oregon essentially overturned the landmark Janus decision last year banning forced union dues. Thus, while conservatives have lost marriage, life, and so many cultural issues to the Supreme Court and have unquestioningly accepted those rulings as gospel, liberals respond to the few losses at the high court with, “Hold my beer and let me show you the power of a district judge.”
It’s important to note that the lower courts already won in the travel ban case by successfully forcing Trump to water down his original order twice. The original order prioritized persecuted Christians in the Middle East for refugee resettlement and placed caps on refugees. It was actually upheld by one Massachusetts judge, but the administration wrongly agreed to the notion that another single district judge can shut it down. Even though the Supreme Court’s ruling would easily have covered the original order, were Trump to ever strengthen it, the courts would begin the process again.
Allowing this cancer of lower court supremacy to continue brings irrevocable harm to our country. A liberal legal writer for Slate observed approvingly this week how the “lower courts are lobbying SCOTUS to rein in partisan gerrymandering” and that “while SCOTUS dillydallies, the lower courts are taking action, aggressively overturning gerrymanders across the country.”
The term “lobbying” is quite peculiar to describe a court, but Slate is not wrong in its observation of how lower courts are pushing the Supreme Court rather than being pulled by it. Despite the fact that the Supreme Court has already signaled in a Wisconsin case that the courts shouldn’t get involved in most political gerrymandering decisions and is deciding the ultimate case on the issue within weeks, two federal judges in Michigan and Ohio brazenly declared the GOP maps in both states unconstitutional after the states had been electing congressmen for a decade based on those lines.
Let’s face it: conservatives have done a poor job educating people on the role of the judiciary over the past few generations. They have agreed to the notion that the Supreme Court rules on political issues absolutely. But now, the trend of progressive lower court supremacism has not only contradicted our constitutional system of checks and balances, but has butted heads with Supreme Court supremacism itself. The real truth is that this has never been about a principled belief in judicial supremacism, but rather a pragmatic stratagem of “heads we win, tails you lose” on the part of the Left. If the Trump administration continues to legitimize these decisions, it has nobody else to blame.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.