Horowitz: Reversal of Roe will make state courts great again



Leftists do not like legislative bodies and believe they should wield the least power precisely for the very reason Madison said: “In republican government, the legislative authority necessarily predominates.” Legislators are elected by the people, constantly stand for re-election (most state legislators are in cycle every two years), all the proceedings are publicized, there are several layers of public votes, and the process in every state (except Nebraska) is bicameral. This is why leftists instead love the courts and bureaucracies, because they can achieve their goals without the disinfecting power of public scrutiny and without the deterrent of public reprisal.

Anyone who supports democratic values should embrace the opportunity to steer contentious issues away from the courts and toward legislative bodies. Obviously, state legislatures are the best suited to deal with contentious issues – not only because they are the closest to the people but also because there are 50 states. We have a divided country and can easily sort out our divisions through a degree of political and even physical self-separating. The reality is that not a single Democrat-controlled state will vote to curtail abortions, because the Supreme Court did nothing but reverse the judicial interference in the issue to ensure that legislatures are free to deal with it.

In light of the fallout from the impending reversal of Roe, there is an uncanny and somewhat perverse political dichotomy unfolding between the two parties. Republicans seem to be defending the “independence” of the court and exalting it to this supreme status above the other branches. Democrats, on the other hand, are trying to delegitimize judicial power because of the perception that they will face a long-term conservative majority on the court. However, if both sides really placed democratic values over politics, they would agree to a grand bargain to devolve power on every contentious issue to the states. This would mean that all cases adjudicating novel rights that only leftists believe in would be dealt with in the respective states. But it would also mean that cases dealing with gun rights would be up to the states.

Don’t get me wrong, I fully believe that there is a difference between bogus rights and foundational rights spelled out in the federal Constitution, such as self-defense, and that should be binding on the states. Ideally, we have the right to petition a federal court for redress if our gun rights are infringed upon. But if that is going to allow courts to perpetuate judicial supremacy and use it as a cudgel over red states, I’m more than glad to devolve all these issues to the states.

Such an arrangement would unfortunately cement the status of blue states as incorrigible Marxist dictatorships, but they are already there anyway. The courts – including the so-called conservative Supreme Court – have barely laid a glove on the COVID fascist regime in blue states. And many courts have prevented red states from blocking these tyrannical laws, such as federal courts requiring red states and counties to have mask mandates.

Conservatives would be naive not to push for a grand bargain ending judicial supremacy. We would benefit so much more than we lose. At present, we rarely benefit from judicial oversight when blue states violate foundational rights, yet we get crushed in red states by the courts vitiating every commonsense policy by creating phantom rights. As of now, we have a “conservative” Supreme Court that has prevented red states from cleaning up homeless encampments, from defining marriage, from keeping the sexes separate in private bathrooms and dressing rooms, from keeping sports sperate, from enforcing immigration law, and from many aspects of fighting crime.

However, let us not forget that for those who still like judicial oversight over broadly political issues, it’s not like the state legislatures won’t have competition. Overshadowed in the politics of the U.S. Supreme Court is the fact that all 50 states have their own constitutions and state judiciaries, including courts of last resort. Let’s not forget, it wasn’t until 1875, in the twilight of the Reconstruction era, that Congress transferred authority over most constitutional questions from state courts to lower federal courts, and it wasn’t until 1914 that Congress granted the Supreme Court appellate jurisdiction over all cases heard by state supreme courts.

Thus, all these decisions we see from the federal courts creating phantom rights can still be done on the state level with regard to the state constitutions – for better or worse. If Democrats so fervently want to enshrine their morals and political aspirations into constitutions, they can do so in the states they control.

Except there is one difference. State judiciaries, for the most part, are elected either initially or through retention ballot. There are only seven states where the voters never get a crack at judicial selection: Delaware, Hawaii, Massachusetts, New Hampshire, New Jersey, Rhode Island, and Virginia. Most of them are solid blue states, and Rhode Island is the only state that mirrors the federal system, in which the judges are never subject to review by the voters and serve a lifetime tenure. In four of those states, the judges are subject to a specific term and must at least stand for re-nomination before the legislature, and New Hampshire and Massachusetts have an age tenure limit of 70.

Inevitably, given the polarization of our society, we disagree not only on policy but on the Constitution itself. This is why any case implicating a constitutional right will invariably be political. Thus, if we are going to place politics in the courts, it’s better to do it in the bodies that are elected and closer to the people.

Collectively, this will make state judicial elections great again and will make state legislatures more consequential and powerful. If we are going to have the courts decide every political and social issue, let’s at least have this debate at the local level. Yes, there will be times when the labyrinth of state laws and constitutionally protected rights might get confusing and even clash, but I’d rather a patchwork of law than uniformity of tyranny.

This is also a wake-up call to conservatives in red states. Many conservatives focus solely on congressional elections, but they need to pay attention to state judicial races. A lot of red states have non-partisan elections, which allows stealth leftists to glide into office. It might be a good idea to make these elections partisan. Let’s face it: There is nothing in politics that is not partisan, especially as it relates to the most consequential legal questions. Let’s be open about it and sort out our disagreements through the diversity of the 50 states. That is the only way to agree to disagree in an agreeable fashion.

Horowitz: No more stealth nominees. Use the conservative litmus test on SCOTUS candidates



Not even our grandparents' generation, much less the Founders of this country, could ever have envisioned a day when to a huge number of people, the purpose of voting in a presidential election would not be for the presidency per se, but for who will choose the next Supreme Court justice. They would have laughed at the notion that a Supreme Court justice is more powerful than a president, but alas, here we are again debating a Supreme Court vacancy more vociferously than the presidency itself — because we have all wrongly entrusted the future of our society to the hands of unelected lawyers.

Before we elect senators or presidents, we are supposed to have a good idea as to their stances on the critical issues that will likely confront them. Given that the Supreme Court is wrongly regarded as a super-legislature, we have an even greater right – even a responsibility – to know where the nominee stands on the critical issues. No more stealth nominees, where we wind up getting justices selected by so-called conservatives who redefine human sexuality. We need hard litmus tests, even more than we have for president and Senate.

Just consider the difference between the power of what was considered the weakest branch of government and the power of the political branches. A senator is just one of 100 people. To change policy in the country, you need a majority (supermajority in the Senate) in both houses and the president's signature. If you oppose the law, you can always work to win future elections and change the law with a new vote from new members. The same applies to the president, whose subsequent policies can be changed by his successor. Then, of course, we are told that the judiciary itself can easily change the policies enacted by the political branches.

Contrast that to the Supreme Court, where we have nine life-tenured lawyers who can literally change the laws of God, or so we are told, and their decision is immutable. Regardless of the law, Constitution, rules of standing for a judicial case, past and recent Supreme Court precedent, political fallout, or national security consequences, justices can declare an opinion and have that policy unquestionably become "the law of the land." According to the erroneous practice of judicial supremacism, the only way to change that back is to embark on the nearly impossible task of amending the Constitution. And unlike when the shoe is on the other foot, we are told that the other branches cannot check that decision in any way.

With that background in mind, this is why it's time that we finally establish litmus tests for GOP SCOTUS nominees. If Democrats want to end the policy of judicial supremacism and make the Supreme Court boring again, then the nominee's positions matter less. But if they continue to treat SCOTUS like a super-legislature and get 100% assurance from their nominees where they stand on life, social issues, immigration, election law, and just about everything that can affect our society and politics, you better believe we will do the same.

Republicans keep nominating people who side with the Left on monumental issues. We swore we wouldn't do this again after Souter, but here we are today with Roberts, Kavanaugh, and Gorsuch – to varying degrees – in play to side with the Left at any given time on some critical and transformational issue. Conservatives' only one-hundred-percenter is Clarence Thomas, while the Left has four of them.

The mistake we make during every confirmation process is that we try to fool the Left with stealth nominees who have never said anything "controversial," but instead we wind up fooling ourselves. During Gorsuch's confirmation, I prepared a list of 15 relevant questions conservatives should get answers on, at least privately, before supporting him. One of them was whether he believes sex discrimination in law includes transgenderism. Well, the president and GOP senators didn't get an assurance on a single one of those issues, and we are paying the price today.

Of the past 19 Supreme Court vacancies, 13 of them were filled by GOP presidents. Yet, at best, just four of them can be considered to have been reliable enough on our issues (Rehnquist, Scalia, Thomas, and Alito).

The guessing game clearly has not worked for us. It's time to grab the bull by the horns. It's time to nominate someone who gives assurances to Trump and other conservative leaders as to where they are on the issues of the time. No, they need not prejudge specific cases. But if they believe illegal aliens have a right to remain in the country, that there is a right to transgenderism, and that past erroneous court decisions should be given deference, then we need to know about that up front. The other side always knows, and it never makes a mistake.

Rather than focusing on identity over everything else, we must focus on ideology, because, yes, this is a more ideological decision than congressional or presidential elections. The last time a president promised to appoint a woman above all other considerations, we got Sandra Day O'Connor. It's not that Trump shouldn't choose a woman, but whoever he chooses should check the constitutional boxes, not just in vague platitudes, first and foremost, instead of the identity politics boxes.

Sound too partisan? Well, then stop making the court the ultimate partisan body that is vested with the power to transform natural law.

On Saturday, David Axelrod, President Obama's former campaign manager, complained about the "tyranny of the minority" – with two GOP presidents having been elected by a minority of the nationwide popular vote choosing the majority of Supreme Court justices. Well, there is no greater tyranny of a minority than nine unelected, life-tenured lawyers being able to decide with finality any and every life decision of an individual and society at large.

As President Lincoln warned in his first inaugural address, "If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Trump should tell his opponents that he is content to return the court's power to the early days when John Jay, the first chief justice, observed that it lacked "the energy, weight, and dignity which are essential to its affording due support to the national government." But now that it contains all the weight of the national government, like an obese behemoth, you better believe we're going to make sure our nominees know the lines and don't cross them. If Democrats don't like it, they ought to shake hands with us and agree to place the power of this body on a rigorous diet.

Trump HAS to exercise power against lawless lower court judges

Sitting federal judge to Trump: I can compare you to the KKK but you can't criticize me

You cannot criticize me ever, but I can criticize you. Even though you’re up for reelection, you have no power, but I am the final say on all matters, even though I am unelected. I can disobey higher courts but you can’t push back even against a lower court. If you don’t like it, then you are a member of the KKK.

Who am I?

Well, a federal judge, of course.

Last week, a radical federal judge went on a tirade against President Trump, ironically, criticizing him for criticizing outlandish rulings by federal judges. Carlton Reeves, an Obama-appointed judge in Mississippi, delivered an unprecedented personal attack on the president. Typically they wait until retirement for such tirades, but Reeves, who has been prone to such tirades in his written opinions, let loose on what he called “the great assault on our judiciary.”

His speech delivered last Thursday night at the University of Virginia School of Law, upon receipt of the Thomas Jefferson Foundation Medal in Law, was titled “Defending the Judiciary: A Call for Justice, Truth, and Diversity on the Bench,” according to a copy obtained by Buzzfeed.

"When politicians attack courts as 'dangerous,' 'political,' and guilty of 'egregious overreach,' you can hear the Klan’s lawyers, assailing officers of the court across the South. When leaders chastise people for merely 'us[ing] the courts,' you can hear the Citizens Council, hammering up the names of black petitioners in Yazoo City, [Mississippi]," thundered Reeves.

Evidently, he believes that a president who will stand for reelection cannot criticize the decisions of the unelected branch, but he, who will never face voters, can say what he wants. In a further twisted stroke of irony about not criticizing judges, Reeves blasted Trump’s judicial picks for being white and not sufficiently and emphatically declaring their support for judicial precedents he agrees with.

The irony would be laughable if not for the fact that this dangerous individual still sits on a federal court. This is a man who is regularly reversed by the Fifth Circuit Court of Appeals for violating Supreme Court precedent, yet somehow, he is concerned about precedent. Reeves was recently overturned by the Fifth Circuit after he said that Mississippi could not protect business owners from being forced to violate their conscience in serving gay weddings or transgender events. The Supreme Court sided with the Fifth Circuit.

“When the powerful accuse courts of 'open[ing] up our country to potential terrorists,' you can hear the Southern Manifesto’s authors, smearing the judiciary for simply upholding the rights of black folk,” accused Reeves. Presumably, he is referring to Trump and the travel ban. But once again, the Supreme Court actually upheld that move categorically and said the president had complete power to do so. Clearly, Reeves doesn’t believe in Supreme Court opinions he disagrees with and will continue to disobey them. Yet, he has the nerve to criticize the leader of a separate branch of government who is not bound by those rulings as a political rule the same way that he is?

Then again, he clearly has no respect for the Supreme Court either. In a veiled shot at Supreme Court Justice John Roberts, he said, “It is not enough for judges, seeing race-based attacks on their brethren, to say they are merely 'disheartened,' or to simply affirm their nonpartisan status."

For those who are unaware of how radical so many of these lower court judges have become, the comments of Reeves should offer a glimpse into their worldview. They believe that we have one branch of government that controls everything, and you are not even allowed to criticize them as a separate branch of government, much less push back against their rulings. Yet, in the ultimate display of intellectual gymnastics, they believe the Supreme Court is only binding when they agree with its decisions. And even though, in their warped view, other branches can’t push back, liberal lower court justices can push back when they disagree. This is their one-directional ratchet whereby lower courts can always be ‘more progressive’ than the Supreme Court but not less so.

If you think that lower courts will accept Supreme Court rulings they disagree with, let this speech from Reeves be a warning.

Reeves also said, “When lawmakers say 'we should get rid of judges,' you can hear segregationist senators, writing bills to strip courts of their power."

Thus, he is comparing a power vested in Congress in Article III Section 2 to make regulations and exceptions to the jurisdiction of the courts to the KKK.

Reeves believes that anyone who disagrees with him is assaulting the Constitution, but he doesn’t believe in the constitutional constraints and checks on his ability to implement his world view unilaterally.

Read the entire speech for yourself and ask yourself the following question: Are you prepared to submit yourself to hundreds of these radical judges having the sole and final say over every aspect of our society? Remember that Bernie Sanders, Ilhan Omar, and Alexandria Ocasio Cortez have almost no power to implement their ideas. But under this unconstitutional practice of judicial supremacy — especially lower court, one-directional ratchet supremacy — a number of people who quite openly share their views now have enough power to single-handedly create open borders for our entire nation.

The tragic irony of this entire speech is that Reeves was receiving a Thomas Jefferson reward. Perhaps Reeves should educate himself on Jefferson. The great founder once said, “[e]ach of the three departments has equally the right to decide for itself what is its duty under the constitution, without regard to what the others may have decided for themselves under a similar question.”

Thomas Jefferson, as president, refused to enforce the Sedition Act of 1798, which made it a felony to "print, utter, or publish … any false, scandalous, and malicious writing" about the government. Writing in an 1804 letter to Abigail Adams, Jefferson explained his constitutional role as follows:

The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution.

This is what Jefferson thought of judges enforcing laws duly passed by Congress he deemed unconstitutional. One can imagine what he would have thought of edicts “passed” by judges to nullify the immigration, marriage, and life protection laws duly passed by Congress or a legislature, and the inherent obligation of the executive to defend the constitutional law from the unconstitutional judicial edict.

Reeves seems to invoke “equality” in every other sentence to justify his racial litmus test for appointing judges. He should therefore be well acquainted with the speeches of the great fighter for making the Declaration of Independence’s ideal of equality a reality during the Civil War.   As Abraham Lincoln said of the false notion of judicial supremacy during his debate with Stephen Douglas when Douglass was suggesting the Dred Scott decision locked up freedom in the territories, it’s a case of “thus saith the Lord:”

This man sticks to a decision which forbids the people of a Territory from excluding slavery, and he does so not because he says it is right in itself-he does not give any opinion on that-but because it has been decided by the court, and being decided by court, he is, and you are bound to take it in your political action as law-not that he judges at all of its merits, but because a decision of the court is to him a "Thus saith the Lord." [Applause.] He places it on that ground alone, and you will bear in mind that, thus committing himself unreservedly to this decision, commits him to the next one just as firmly as to this. He did not commit himself on account of the merit or demerit of the decision, but it is a Thus saith the Lord. The next decision, as much as this, will be a Thus saith the Lord. There is nothing that can divert or turn him away from this decision. [First Debate Ottwa Illinois, August 21, 1858]

Mind you, he was referring to the Supreme Court. Nobody until this generation could have imagined we would lock up our border control, election law, life, marriage, and oil because of an insidiously forum-shopped district judge.

Reeves closed his screed by noting that “We do Jefferson justice –we do the martyrs of Mississippi justice –we do our country justice–by defending our judiciary. Now, more than ever.” One could not possibly be more historically or constitutionally illiterate than Reeves by making this remark. Jefferson lamented in 1823 that “there is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the Supreme Court.”

Even Jefferson could never have imagined several hundred lower court judges like Reeves who would wield such power to “twist and shape” the Constitution “into any form they may please” like he feared with the Supreme Court. Are we really prepared to surrender our Constitution to men like this, thereby making our republic a government of [unelected] men rather than one of laws?

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Levin: This country is being overrun 'because of the federal courts interfering in immigration'

On his radio show Monday, LevinTV host Mark Levin discussed how the judiciary and Congress continue attempting to thwart President Trump’s mandate to lead the executive branch and enforce national sovereignty.

“The world is going nuts, and the Left is dragging us with them,” he started.

“We’ve got people in the courts who want to run our immigration system,” Levin continued, citing another federal court ruling attempting to pre-emptively block the president from asking the Mexican government to do more about the crisis at the border.

“You want to know why this country is being overrun? Because of the federal courts interfering in immigration.”

"Every step of the way, he’s fought by the courts. Every step of the way, he’s fought by the Democrat Party. Every damn step of the way, he’s fought by a big chunk of his own party in Congress,” he added.

Listen:

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Will Brett Kavanaugh run to the left on judicial gerrymandering?

Should federal courts get to arbitrarily say that Democrats deserve more congressional and legislative districts to compensate for their lack of broad appeal to many non-urban voters? Well, the courts decide everything else in the country, and indeed the lower federal courts are already tipping one electoral map after another to the Democrats, so why should the Supreme Court stop it? But at least four justices seemed ready to get the federal courts out of the business of judicial gerrymandering altogether at oral arguments on Tuesday in a pair of cases from North Carolina and Maryland. However, there is the peculiar case of the newbie, Brett Kavanaugh.

Everyone agrees that hyper-partisan gerrymandering that splices up natural boundaries and jurisdictions for political gain is odious. But the one thing worse than that is arbitrary judicial gerrymandering by unelected judges. As bad as it is, the practice of legislative gerrymandering, drawing congressional district boundaries to benefit those in power, is as old as it is unfair. After all, this practice was named after one of its earliest practitioners, Elbridge Gerry, one of the top Founders and the fifth vice president of the United States.

The reality is that voters still have the ability to fight gerrymandering through ballot initiatives or in statewide elections, such as governorships and senatorial races that are not dependent on district maps to determine the outcome. Then, of course, there are always the state courts that are well equipped to deal with these claims, and most state judges, unlike federal judges, stand for election or retention.

I have no problem devolving all redistricting cases to state courts. The problem is that, until now, it’s been a one-way street. The state supreme court in Pennsylvania gave Democrats three more districts, and the federal courts denied appeals from the GOP. That would be fine if not for the fact that the state courts in North Carolina upheld the Republican maps but then the federal courts completely tipped the balance to the Democrats. You gotta love the “heads Democrats win, tails Democrats win” dynamic in the legal profession.

Democrats have nobody to blame but themselves for underperformance in representation 

While both parties have engaged in gerrymandering forever, there is an underlying agenda in getting the courts involved that is not bipartisan or nonpartisan. The Democrats’ entire coalition is built upon bloc voting of minorities and unmarried white liberals in urban areas.

The Democrat choice of electoral coalitions has kept them very competitive in presidential elections and winner-take-all Senate elections, where they can run up massive margins in urban areas. But it ensures that Republicans win more races that depend on geographically segmented districts, which naturally puts them at an advantage in congressional elections and an even stronger one in state legislative elections, which are even more confined than congressional districts. In most states, if Republicans merely drew a fair map respecting natural boundaries, if it’s a 50-50 split statewide, they could easily get 60 percent of the districts, and that is not because of foul play.

Even in 2012, when Obama defeated Mitt Romney pretty decisively, Romney still carried 226 congressional districts to Obama’s 209. This is because Obama won just 690 of the 3,144 counties or county equivalents, even as he won the popular vote by four percentage points. That was during a losing year for Republicans. Now consider the fact that even as Hillary Clinton won the popular vote by at least one point in 2016 (while losing the Electoral College), she carried just 487 counties — just 15 percent of the nation’s counties.

What about state legislatures? In 2012, Obama carried Florida, but Romney won the state house districts 65-55 (from Daily Kos election maps). Obama carried Ohio by three points, yet Romney carried the state house districts 60-39. As Obama won Pennsylvania statewide, thanks to a massive turnout in Philadelphia, Romney carried the state house districts 114-89. Even in Michigan, where Obama blew out Romney by almost 10 points, Romney still won a slight majority of state house districts.

The point is, Democrats have a lot of advantages gained from tailoring their strategy toward bloc voting of black and other ethnic groups. And in years where they have a broader appeal, such as in 2018, they can win in other places as well. But they pay the price in competitive years or good GOP years in congressional and legislative districts in most states, even when the districts are drawn with no political malice.

The courts as king over redistricting will supply affirmative action for Democrats  

This brings us to the oral arguments at the Supreme Court on Tuesday in Rucho v. Common Cause. On its face, the discussion was politically neutral because they were considering North Carolina’s maps, a GOP gerrymander, alongside a case on Maryland’s map, a Democrat gerrymander. However, the Left is trying to get the courts to mandate some sort of proportional representation – that a 50-50 state should allocate the districts in a way that would likely result in a 50-50 split in districts. That is completely unfair because Democrats are trying to have it both ways with their political messaging, and it would be completely illegal for the courts to mandate something like that.

In comes Bret Kavanaugh, and rather than reject the notion vociferously as the other GOP-appointees did, he flirted with the idea as a legitimate goal. Fully understanding the important caveats that it’s often hard to read too much into comments by justices during oral arguments because they often play devil’s advocates with the lawyers, I think James Lucas raises a valid concern in his NRO column that Kavanaugh might be adopting this proportional allocation mandate.

As Lucas observed, Kavanaugh floated an idea that the 14th Amendment’s Equal Protection clause might mandate proportional allocation. That idea is bonkers, and any true originalist knows that the 14th Amendment did nothing but guarantee freed slaves life, liberty, and property. Even the right to vote wasn’t guaranteed until the 15th Amendment. The concept of proportional allocation based on political analysis of priority elections is so foreign to our history and tradition that it is truly hard to see any originalist positing such an idea with a straight face, even if they are trying to vet both sides of an oral argument.

Also, throughout the argument, Kavanaugh really seemed to countenance the premise that gerrymandering beyond a point is unconstitutional and harms democracy to a point that he felt it legitimized judicial engagement — and that proportional representation would be a “judicially manageable” solution. Kavanaugh told the lawyers arguing for judicial standards, "I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy," "and I'm not going to dispute that." He seemed to indicate that even though there is no clear remedy on the table, the courts should at least “in essence, recognize the emergency situation from your perspective.”

It boggles the mind that someone like Kavanaugh could take this idea seriously – that the courts could wave a magic wand and mandate partisan breakdown of districts. It is as politically pernicious as it is legally wrong. It’s amazing that he never considers courts overstepping their powers as a threat to democracy. Overall, Kavanaugh seemed more skeptical than the four leftist justices as to whether the courts could properly set a standard, but he seemed pretty clear that if such a solution was sufficient and workable, in his mind, the courts would indeed have such power to legislate.

Kavanaugh has already bucked conservatives on a global warming case and an abortion-funding case and has shown a proclivity in his writings to respect bad liberal precedent of the Supreme Court. In addition, as Art Arthur, a former immigration judge and fellow at the Center for Immigration Studies, observed, Kavanaugh used the term “non-citizen” 19 times instead of illegal alien in his concurrence in Preap. Judges are usually very precise with these sort of terms, and technically, his use of this word actually made a few of his statements factually incorrect (see Arthur’s column for more). Some might be concerned that he is going out of his way to indulge the Left and even overcorrect in order to rehabilitate his image with the left-wing legal profession.

Time will tell what happens with Kavanaugh, but we must remember that if we are going to allow the courts to decide the most political issues imaginable, frankly, there is no reason to hold elections in the first place, much less argue about the districts. Sure, political redistricting is often bad, but judicial gerrymandering is the worst, and it will certainly hurt conservatives nine times out of ten. It will also hurt all Americans by crowning the courts king of the foundation of our political system.

At the end of oral arguments, Paul Clement, the lawyer representing North Carolina, made the following astute observation:

But the framing generation understood partisan gerrymandering firsthand. James Madison was the intended target of a partisan gerrymander by Patrick Henry. He complained about it bitterly. So did George Washington. Neither of them contemplated suit. Hamilton actually suggested to John Jay that the Federalists ought to partisanly gerrymander the electoral college for the 1800 Presidential election. John Jay said it wasn't such a good idea. … All three authors of the Federalist Papers knew about this and didn't think there was a judicial solution.

When will we finally return to the system of government our Founders adopted, where the courts are the weakest of the three branches, not the de facto kings of all Americans?

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Ninth Circuit dismisses Steinle family lawsuit against sanctuary

In this country, the inmates literally run the asylum. Our court system is of, by, and for illegal aliens, while Americans, including those killed by illegal aliens, are left out in the cold. The upshot of the latest ruling from the Ninth Circuit is that while illegal aliens can now sue our country and win judgments against law enforcement for enforcing federal law, victims of illegal aliens cannot sue sanctuary cities for thwarting federal law and causing the deaths of their loved ones. Welcome to the new America.

The Ninth Circuit and many other liberal courts believe they are a super-legislature, holding the sole and final say over broad public policy issues. They believe they are not constrained by rules of standing and can grant standing to any foreign national to sue American officials and law enforcement for rights to enter, remain, steal citizenship, be counted in the census, obtain welfare, and never be deported. Yet Kate Steinle’s parents, who are not seeking a public policy edict from the courts but rather an individualized claim against the city of San Francisco, are deemed not to have an actionable claim because government officials have immunity.

On July 1, 2015, Kate Steinle was murdered on a San Francisco pier by a bullet shot from the stolen 40-caliber gun of Jose Ines Garcia Zarate, an illegal alien from Mexico who was deported five times and was released from San Francisco jail two and a half month before without notification to ICE. He remained in the country despite seven felony convictions. Like many recent California murders, this one would have been completely avoidable had the city not rebelled against the federal law. The family sued the city of San Francisco and former Sheriff Ross Mirkarimi for negligence but has been rebuffed by the district judge and now the Ninth Circuit. Yes, the courts have finally found a non-justiciable claim: when it comes from Americans killed by illegal aliens thanks to city officials violating immigration laws.

In December 2017, a San Francisco jury acquitted Zarate of all murder charges, including manslaughter. The Justice Department responded by charging him with possession of a firearm, involuntary manslaughter, and assault with a deadly weapon. Justice has not yet been served. Now the Steinle family won’t have recourse with any civil suit either.

One has to wonder if we are entering an era reminiscent of the Jim Crow South, where in certain jurisdictions we can’t get justice if the perpetrator is of the right group, in this case an illegal alien. Illegal aliens and their supporters can do no wrong, even when the law is on the side of the citizenry.

It’s not surprising that the Ninth Circuit would shield San Francisco from a lawsuit stemming from violating federal immigration law. The court itself just violated federal law by illegally adjudicating a case to grant constitutional habeas corpus rights for illegal aliens to obtain endless appeals. Yep, they are willing to give illegal aliens standing to sue when statute explicitly denies the courts such power, but will never hear cases from the families of citizens killed by illegal aliens.

In a vacuum, it’s understandable why, absent a direct federal or state grant of action to sue, a judge might dismiss this claim on grounds that public officials are immune. As the three-judge panel wrote, “The tragic and unnecessary death of Steinle may well underscore the policy argument against Sheriff Mirkarimi’s decision to bar his employees from providing the release date of a many times convicted felon to ICE.” What is indefensible, though, is how this same court grants illegal aliens the right to access federal courts when Congress has explicitly barred it. Somehow, we only become sticklers for discretionary immunity to shield government officials from lawsuits when it comes to victims of illegal aliens, but illegal aliens themselves can sue any law enforcement that follows federal law.

One of the judges on the panel, Stephanie Thacker, was actually a visiting judge from the Fourth Circuit. In 2017, she was one of the judges who ruled that foreign nationals can sue for a right to enter our country based on religious liberty rights under the Establishment Clause!

The actual opinion was authored by Mark Bennett, the left-wing former attorney general of Hawaii. Despite being nominated by Trump, he was supported by every single Senate Democrat. Twenty-seven Republicans voted against him because of his views on guns.

Countries have had revolutions over lesser infractions by their governments than what the courts are doing on illegal immigration. Yet we have witnessed numerous Kate Steinle stories in recent months, but there has been no call to action for the political branches to deal with sanctuary cities, judicial jurisdiction, and a private right of action for victims of illegal aliens to sue. I called for such a private right two weeks ago after Bambi Larson was murdered in San Jose by an illegal alien with over a dozen arrests and nine ignored ICE detainers.

As Leon Fresco, an immigration attorney and member of a Homeland Security advisory committee, told Axios, "At the moment, we have the closest thing to an open border that we've had.” That includes even under Obama. We have never had a scenario where our government asserted that anyone can just come right in and there’s nothing we can do to block, apprehend, detain, or deport them. And the consequences have never been graver. The fact that we got to this point is not necessarily Trump’s fault, but it doesn’t help if conservative media buries its head in the sand as if this is not happening. If this had occurred under the Obama administration, there would be nonstop outrage from conservative media and members of Congress, and it would have its effect. This is what happened in 2014, and eventually Obama got tougher on the border.

We have a judicial Jim Crow against the American citizenry and our sovereignty. If we continue to legitimize their actions, we will have no country left.

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While everyone sleeps, the courts are abolishing all immigration enforcement

Congress could never get away with creating constitutional rights for illegal aliens to remain here, yet a single lower court just did so on Thursday. And where Congress would face deep reprisal in the next election, faceless judges will never feel the heat.

Conservatives fear that extreme Democrats might actually abolish ICE and all immigration enforcement, but the lower courts are already systematically abolishing ICE’s authority, nullifying immigration enforcement statutes, violating separation of powers, and constantly increasing the wave of bogus asylum-seekers that they originally spawned with other radical rulings. The latest ruling from the Ninth Circuit demonstrates that unless Republicans and the president begin pushing back against these radical judges and delegitimizing their rulings, Democrats will get everything they want without ever facing electoral backlash or even the need to win elections.

It’s truly hard to overstate the outrageously harmful effects of Thursday’s Ninth Circuit ruling. For the first time in our history, the courts have fabricated a constitutional right for those denied asylum to appeal to federal courts for any reason.

Here’s the background.

Hundreds of thousands of migrants are flooding our border, claiming the formula of “credible fear” of persecution. They get to stay indefinitely while they ignore their court dates in immigration court. Because of an amalgamation of several prior activist court rulings, mainly by this very circuit, roughly 90 percent of credible fear claims are approved by asylum officers and the claimants shielded from deportation, even though asylum status is ultimately rejected almost every time by an immigration judge. Unfortunately, by that point it’s too late for the American people, who are stuck with the vast majority of these claimants remaining indefinitely in the country. Yet rather than ending this sham incentive, the Ninth Circuit drove a truck through immigration law by asserting that there is now a constitutional right for even the few who are denied initial credible fear status and are placed in deportation proceedings to appeal their denials, not just to an administrative immigration judge but to a federal Article III judge for any reason.

In past cases, the courts merely twisted statutes and contorted their plain meaning. In this case, for the first time ever and in direct contrast to a ruling by the Third Circuit in 2016, the Ninth Circuit ruled that the immigration statute that denies the federal courts jurisdiction to hear such appeals is unconstitutional under the constitutional requirement of habeas corpus, thereby giving 7.8 billion people in the world habeas corpus access to our courts. This will allow numerous illegal aliens, including the brand-new ones entering now, to stay indefinitely while they litigate themselves into status. The ACLU, which of course led this lawsuit on behalf of a Sri Lankan migrant denied asylum, wasn’t kidding when it proclaimed, “The historical and practical importance of this ruling cannot be overstated.”

This is one of many recent violations of sovereignty doctrine, known as “plenary power doctrine.” This long-standing principle in the courts is that while aliens have due process rights against criminal punishment, they have no rights to litigate against deportation, which is a mere extension of sovereignty, other than the process laid out by Congress. This principle “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume” (Galvan v. Press). The concept is “inherent in sovereignty,” consistent with “ancient principles” of international law, and “to be exercised exclusively by the political branches of government.” (Kleindienst v. Mandel).

What is so outrageous about this case is that Congress explicitly stripped the courts of any jurisdiction to hear such claims. The reason why the district judge, who was an Obama appointee, refused to even hear this case is because 8 U.S.C. §1252(e)(2) prohibits the federal courts (not to be confused with DOJ administrative courts) from hearing habeas corpus claims against expedited removal of those denied their credible fear claims unless of course they have a claim that they are a citizen or a legal permanent resident. In this case, the three Clinton appointees of this Ninth Circuit panel, Wallace Tashima, Margaret McKeown, and Richard Paez, ruled for the first time that this provision is unconstitutional and that the district court must hear the case.

The court used the Boumediene v. Bush decision, which created a right to habeas corpus for enemy combatants being held at Guantanamo Bay, as the basis for its decision. That decision in itself was an egregious warping of the Constitution, a decision that Scalia angrily predicted that “the Nation will live to regret.” However, the important distinction is that Boumediene was a case of indefinite detention, whereas this is a case where we are enforcing our sovereignty and getting rid of the person, who can live freely wherever he wants. Applying habeas corpus to deportation is bonkers even by the Boumediene standard.

Now that there is a circuit split on this revolutionary idea, court watchers on all sides predict the Supreme Court will take up the case. While conservatives are fairly confident that this will be added to the endless list of Ninth Circuit reversals by SCOTUS (although I have my concerns about Gorsuch in this case), conservatives need to realize the factors creating an emergency with sovereignty and the lower courts:

  • We’ve seen over and over again how lower courts create a legal, political, and policy momentum for creating new rights. If they are not nipped in the bud and delegitimized immediately, they wind up growing and eventually being codified, even if initially reversed by the Supreme Court. This has happened with almost every phantom right created by the courts and has already begun with immigration law. We are at the cusp of the courts doing with immigration what they did with abortion and gay marriage, even though it took years for the Left to win in those cases. All of the justices except for Clarence Thomas succumb to pressure to varying degrees and will eventually go along with much of the anti-sovereignty doctrine building in the lower courts.

  • Many conservatives are suggesting that we “fix” our immigration laws to stop the asylum fraud, among other problems at the border. What this case demonstrates is that courts are so radical they are not just twisting the wording of statutes, they are downright invalidating them by creating new constitutional rights to immigrate. They are even brazenly invalidating statutes that block the courts from hearing cases, as we saw with the TPS amnesty case. Keeping out and deporting aliens as well as defining court jurisdiction are two of the most unquestionable and categorical powers of Congress, and they are backed by case law dating back to our Founding. This is no longer about any one statute. There is no statute to fix. Remember, we already fixed our immigration laws in 1996. Many of the things we want to do, including kicking the courts out of these cases, were already done in 1996, including the statute at issue here. This law passed the Senate unanimously! Passing more laws while continuing to legitimize lower court supremacy won’t help. If we continue to agree that lower courts rule over immigration, no amount of congressional changes could help, because the courts will rule the changes unconstitutional. This is why it’s time to grab the bull by the horns and attack the notion of judicial jurisdiction over these issues to begin with. The Trump administration needs to begin pushing back against the courts.

  • There is something much bigger occurring here. Putting aside particular smaller areas of immigration law, the legal profession has now pulled the trigger on a long-standing goal of what they refer to as “applying constitutional norms” to foreign nationals, not just in terms of criminal proceedings, but in the context of immigration claims themselves.

Justice Robert Jackson, the great champion of due process and the dissenter in the Japanese internment case, described it this way: “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” Due process for aliens in the context of immigration decisions is whatever Congress says it is. As the court said in Lem Moon Sing v. United States, “The decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Liberals have been trying to attack this for decades and ensure that even the aliens we successfully deport expeditiously (increasingly a small number) can remain here indefinitely and tie up our courts with lawsuits. If we allow this game to continue, the flow at our border will make what Europe is dealing with look like child’s play.

Every week, we cede another piece of our sovereignty to unelected courts who are actually violating longstanding Supreme Court precedent. The conservative movement needs to push this administration to stand up and put the Supreme Court on notice to guard its own precedents and doctrines and that if it fails to rein in its own quite inferior courts, the administration will certainly not regard those decisions as superior to our own laws. Trump has no other choice.

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Judge creates a ‘right’ for deportable aliens to be tipped off

While Jared Kushner is working assiduously to promote amnesty for some of the same criminal aliens for whom he just secured early release from prison, the courts are already repealing our immigration laws.

Among all the new rights created by courts in recent years, a judge just created a right for illegal aliens to receive advance notice of ICE deportations, even after they have final orders to be deported. In other words, criminals have a right to be tipped off so they can flee and remain elsewhere in the country while sucking us dry and committing more crimes.

There are over roughly one million aliens in this country with final deportation orders from immigration judges (not to be confused with Article III judges). These are people who harm our country and on behalf of whom we’ve already exhausted overgenerous and gratuitous notions of due process. One can imagine the millions of others that have evaded justice whom we haven’t even apprehended. It’s hard enough for ICE to secure a final deportation order. Yet now the federal courts are fighting trench warfare on every last criminal alien removal, making it impossible to deport anyone, even in slam-dunk cases.

On Thursday, California U.S. District Judge Cormac J. Carney, a Bush appointee, issued a temporary injunction against the deportation of 1,400 criminal legal aliens and 500 illegal aliens – all from Cambodia. He said that even though they all had final orders of deportation, ICE could not re-detain them for deportation without two weeks’ notice.

Judge Carney is the same radical in a robe who unilaterally declared California’s death penalty to be unconstitutional in 2014.

As I observed last week, the categories of offenses to trigger deportation for legal immigrants were set out in the 1996 immigration bill, which was adopted unanimously in the Senate and signed by Bill Clinton. Nancy Pelosi, Chuck Schumer, Dianne Feinstein, Dick Durbin, and James Clyburn all voted for it. That is the law of the land. Yet judges have now seized the power to nullify immigration law outright and rewrite it with their own conditions.

This is the other side of the immigration story. In many ways, interior enforcement is even more important than the wall. Even if we stopped all illegal immigration across the land border, we have many criminals and dangerous aliens from the past few decades already here and many more who overstay their visas or who commit crimes while here with a green card. ICE can easily remove them, but the courts are now fighting every last deportation from every angle, even if it means rewriting immigration law. Left-wing groups have convinced judges that these particular criminal aliens in California are somehow a protected class because they fled violence in Cambodia, but that doesn’t change the fact that these particular Cambodians targeted for deportation are criminals. The fact that they were fleeing persecution should make it all the more egregious that they bit the hand that fed them and returned our generosity with criminal acts. The overwhelming majority of Cambodians who came here in the 1970s fleeing Khmer Rouge lived law-abiding lives in America.

As the courts have said for 130 years, there are no limitations on the power of the political branches to deport any foreign national for any reasons without any judicial oversight. The only limitation on immigration enforcement is that we can’t indefinitely detain aliens just for detention’s own sake, but can certainly detain for the purpose of deporting. Among many settled cases, here is what the court said in Turner v. Williams in 1904:

No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation unless provision were made that the fact of guilt should first be established by a judicial trial. … Detention or temporary confinement as part of the means necessary to give effect to the exclusion or expulsion was held valid, but so much of the act of 1892 as provided for imprisonment at hard labor without a judicial trial was held to be unconstitutional.

Thanks to a previous egregious court ruling (Zadvydas v. Davis), over the strenuous dissent of Justice Scalia, ICE has been forced to release a number of criminal aliens because their home countries refused to repatriate them. Now that the Trump administration has made diplomatic progress in achieving cooperation, ICE is finally tracking them down and simply following up on the existing deportation orders. This is where judicial civil disobedience comes in.

Jessica Vaughan of the Center for Immigration Studies told me she was concerned that the courts are essentially creating a “two-week notice to disappear” for criminal aliens. “This is outrageous on an operational level and in the context of the law,” said the veteran analyst of interior immigration enforcement. “If a federal judge can block these relatively cut-and-dried deportations, why not every single deportation case? This is nonsensical. The deportation due process that Congress set up is not meant to provide deportable aliens with endless appeals without appropriate grounds. The federal judiciary seems bent on taking over the civil deportation process and creating rights for removable non-citizens that Congress never intended and Americans do not wish to underwrite or allow.”

Indeed, the Supreme Court has already said decades ago that any effort to eliminate the concept of deportation must be done through the political branches, not the courts. “[I]t would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government’s power of deportation. … It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities,” said the high court in Harisiades v. Shaughnessy (1952).

In 1893, the Supreme Court made it clear that the power to deport is just as unassailable as the power to exclude so long as the alien has not been naturalized. “The power of Congress to exclude aliens altogether from the United States or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Fong Yue Ting v. United States, 149 U.S. 707 (1893))

I couldn’t reach out to ICE for reaction because the agency is limited in media correspondence during the partial shutdown. While ICE could not respond to any media requests during the shutdown, the courts seem to have no problems operating 24/7 to subvert our sovereignty.

The problem of judicial amnesty is one of the many reasons why Trump would be insane to allow Jared to push him into a deal of “amnesty for a border wall.” If courts are voiding existing statutes that explicitly call for deportations, one can only imagine what would happen once the law is changed to blatantly shield a number of illegal aliens from deportation. They would essentially shut down deportations for everyone so that all aliens can be afforded an opportunity to apply for status. Then, a number of others will just come here on tourist visas and overstay their visas indefinitely while the courts shield them from any interior enforcement.

Instead of agreeing to amnesty, it’s time to double down on the original promise of 1996 – a promise Schumer and Pelosi agreed with – to stop all illegal immigration once and for all and to deport criminal aliens. That promise will never be actualized until we finally enforce the judiciary’s own settled case law on today’s activists disguised as judges.

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Levin: Here’s just how little influence ‘we the people’ have had on immigration policy

On the radio Friday, LevinTV host Mark Levin took aim at a Friday Supreme Court decision that struck down President Trump’s stricter asylum policies.

Levin said Friday’s decision is yet another ruling made by unelected judges and not the American people.

“Congress never approved of illegal aliens getting free health care in emergency rooms. Congress never approved of illegal aliens having access to public education,” Levin pointed out. “All of these things were done by the Supreme Court. All of them.”

And “now we watch the spectacle,” Levin added, of the negotiation taking place in Congress over a fraction of the money needed to construct a border wall.

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