Can the courts do no wrong?
It’s understandable why members of Congress would be upset with a general trend of presidents legislating from the White House, whether through emergency or non-emergency powers. What is not understandable is why these same members who complain about abuse of executive power don’t utter a word, much less take action, against more severe, systemic, harmful, and irrevocable power grabs by the unelected and completely unaccountable judiciary branch of government.
Today’s debate over disapproving Trump’s reprogramming of $2.6 billion in DOD funding for construction of a border fence under the declaration of an emergency is a sideshow. As I’ve noted before, with the courts ruling that the Constitution applies to 7.8 billion people, mostly outside our country, we no longer have a border, so a border wall is moot until that is fixed. Moreover, the entire discussion over executive power grabs, while in general a worthy discussion, is also a distraction from the real source of the constitutional crisis over violation of powers, particularly when it comes to the border.
Why are we in this predicament to begin with? We have a flow of hundreds of thousands of Central Americans invading our border, being brought in on our dime, who are impossible to deport under almost every circumstance. It all starts and ends with the courts. We have empowered the lower courts as the sole and final arbiter of every aspect of border and interior immigration enforcement, the one area of law into which even the Supreme Court of the infamous Warren era never ventured.
Moreover, the courts are not just illegally attempting to thwart Trump’s executive actions. They are invalidating immigration statutes nearly every week, violating rules of standing in order to serve as both a legislature and presidential veto, and are now ignoring congressional laws regulating the type of immigration appeals courts can hear. The Ninth Circuit last week nullified a statute that passed the Senate by voice vote in 1996 dealing with two of the most plenary powers of Congress – immigration and regulating jurisdiction of the courts. Where is the outrage?
The Supreme Court has refused to hear the appeal where Judge Jon Tigar violated rules of standing and gave caravans outside our country access to block the one policy that would end this bogus asylum invasion. It has also thus far refused to hear the appeal on judges astoundingly forcing Trump to violate foundational congressional immigration laws by continuing Obama’s amnesty and even forcing states to give driver’s licenses to people who Congress said must be deported! Where is the outrage from a single Republican senator?
The letter of the statute does indeed grant the president authority to reprogram these funds. In general, I’m disappointed with the president’s broader focus and the failure to act in other ways to address the emergency that are frankly more important than the wall, thereby furthering the suspicion that this was motivated more by the symbolism of his campaign promise than anything else. But on every level – whether it’s the Constitution, statute, sovereignty, or policy effects – the judicial power grabs are much more severe.
The courts are the source of the problem. Why do you think we are in this predicament with illegal immigration 23 years after Congress nearly unanimously passed The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA 96”), which solved much of the problem? Because the courts have systematically dismantled the law, ignored their own long-standing case law, and nullified statutes. Now, they are issuing one universal injunction after another, a proceeding that according to Justice Thomas is so unconstitutional that even Congress likely couldn’t confer the power to do so upon the courts! Thomas noted that universal injunctions fundamentally strip the legislative power from Congress and illegally grow the power of the court from deciding judicial controversies to rendering edicts on public policy.
But where is the outrage from these same senators who are so evidently concerned about protecting Article I powers to legislate? Where is a single piece of legislation from a single member dealing with the judicial super-power grab on a single vital issue? Where is the resolution of disapproval? Where is a single initiative to impeach a single judge?
It gets even worse. So, this group of senators is upset about executive power grabs. Fine. But not only are they ignoring more severe and brazen judicial power grabs, they are ignoring the very judicial power grabs that force Trump to continue the executive abuses of his predecessor! I’ve chronicled 13 examples of the courts demanding that Trump continue policies that never existed until Obama and were illegally enacted by administrative fiat, yet the courts mandated that Trump continue them. Is it that these senators are such judicial supremacists that their zealous distaste for executive power abuse is suddenly mollified when it’s caused by judicial power abuse?
The courts redefine marriage, the building block of all civilization? Crickets from these senators.
The courts redefine life and bar any restriction on any aspect of abortion funding, much less abortions? Crickets.
The courts redefine citizenship and sovereignty in every way? Crickets?
The courts stripe the states of the power to prevent voter fraud or non-citizens voting? Crickets.
The courts prevent states from enforcing federal immigration laws but give standing to states to sue against federal immigration laws and violate them? Crickets.
There are almost no legislative issues left that have not been decided by the courts, and most recently, predominantly by congressionally created lower courts. In fact, in 2017, the U.S. Court of the Appeals for the Federal Circuit, a random court that Congress didn’t even create until 1982, ruled that a provision of the Veterans Access, Choice and Accountability Act, a law designed to expedite the firing of those at the center of the VA scandal, could not be followed. The bill passed the Senate 91-3.
Among the hundreds of outlandish and consequential decisions that affect the core of our civilization, most of these senators have never even put out a single press release criticizing the courts and resolving to stand up for Article I of the Constitution.
Not only are judicial power grabs more brazen in scope and policy claims than most executive abuses, they are, according to these same supremacists, irrevocable. A president who abuses power either retires or is faced with an electorate that can punish him and his party and eventually countermand his order. But we are told that any utterance of a judge is “the law of the land” and we must do the impossible task of amending the Constitution to get around their illegal altering of that document.
So color me wholly unimpressed with those who are suddenly concerned about a president using an emergency statute to redirect a few billion dollars that would have gone to Kabul urban renewal projects to instead deal with a crisis created by the branch of government that, in the eyes of these senators, can nullify Article I with impunity.
If you are a senator who has consistently pushed for judicial reform and resolved to take on the courts, your equal outrage over Trump’s move is understandable. But if you’ve been criminally silent on the real separation of powers and constitutional crises with the courts, take your concern over Trump … and tell it to the judge!
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.