Here we go again. In almost every culture war issue that I can recall spanning the course of the last several decades, the Federal judiciary seems to always step in at the last moment to thwart the democratically expressed will of the American people. For example, the American people want Bible reading and prayer in the public schools, reasonable legal restrictions on abortion on demand, marriage to be defined as that which exists only between a man and a woman, and the repeal of Obamacare. Yet, the unelected, life tenured, and unaccountable Federal judiciary always seems to intervene without a second to spare to overturn the will of the people.
The same pattern has now repeated itself in the immigration debate. If anything was clear from the last election cycle, the American people voted Donald Trump into office largely because of his promises to build a wall around America and to enforce our immigration laws. Trump, to his credit, has recently moved in the direction of keeping his promises through his recent executive order to place a temporary ban (until better vetting standards can be implemented) upon those seeking entrance into the United States from seven nations known for their terrorist training camps. No sooner had the ink on the executive order dried when a Federal District Court judge ruled the order unconstitutional. This decision was then upheld yesterday by a Ninth Circuit Court of Appeals opinion to similarly render Trump’s executive order unconstitutional.
As in the case of all the aforementioned cultural war issues, the court’s decision here is rooted in its left-wing political bias rather than what the text of the Constitution actually says. If this trend involving judicial overreach is not soon rectified then we are really not living in a free form of government. Rather, our government can instead best be defined as a form of “soft tyranny.” Tyrants ignore the will of the masses and do as they please.
However, enough with the complaining. The issue now becomes what can be done about it? One possibility is to remove from office renegade and unconstitutional judges through impeachment. The power to impeach Federal judges is expressed in Article III, section 1 of the United States Constitution, which governs the Federal judiciary. “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour…” Judicial bad behavior would obviously encompass refusing to follow the Constitution and the laws of the land. However, as evidenced by the failed attempt to remove former President Bill Clinton from office for perjury and obstruction of justice, the American people seem to have little patience with the impeachment process thereby making it a politically unviable option today.
Rather than aggressively pursuing impeachment, one popular solution instead seems to be to wait for President Trump to appoint more originalists to the Federal bench and hope that Trump’s nominees can make it through the Senate confirmation process. Trump’s recent selection of Judge Gorsuch to fill the seat vacated by the untimely death of Anthony Scalia provides reasonable grounds for optimism in this regard. Will Trump continue to appoint originalists to the bench who can also be confirmed by the United States Senate? Only time will tell.
However, there exists a much simpler, legal, and expedient solution toward rectifying our current judicial, oligarchical nightmare. The solution is found directly in Article III of the United States Constitution, which governs the Federal judiciary. As explained in a new book by former Speaker of the House Tom Delay (and Wallace Henley), Article III grants power to our elected representatives to solve this problem immediately.1 Our leaders only need the political will to exercise their constitutionally derived authority. Our Constitution gives the Congress three basic powers over the Federal judiciary.
First, according to section 1 of Article III, other than the Supreme Court, Congress is responsible for creating all other Federal courts. “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” (italics added). Such power of creation also includes the authority of Congress over the wayward Ninth Circuit. According to DeLay and Henley, “This also means that what Congress can create it can uncreate.”2 Thus, Congress should now move aggressively in the direction of dissolving the Ninth Circuit, or dramatically cutting or even eliminating its budget, or perhaps breaking it up into something less monolithic.
Second, according to section 2 of Article III, Congress has the authority to limit the jurisdiction of the federal courts. “…the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make” (italics added). Simply put, this means the Congress has the ability to tell the Federal courts what types of cases it can hear or cannot hear. Thus, Congress should also immediately move aggressively in the direction of passing legislation that removes from the Federal judiciary the ability to hear cases involving any and all hot button cultural issues. This would include removing from the Federal judiciary cases involving the so-called “separation between church and state,” abortion on demand, universal healthcare, and also immigration.
Third, Article III fails to assign to the Federal judiciary any enforcement power. In other words, when the Federal judiciary issues a decision it is completely dependent upon the executive and legislative branches of government to enforce their decisions. DeLay and Henley note, “Rulings by SCOTUS or other federal courts, therefore, are only opinions if not enforced by the Executive or Legislative branches or the states.”3 Thus, when the Federal judiciary makes decisions that have no basis in the actual text of the Constitution, the other branches of government should simply refuse to enforce such decisions. It is within both the authority and duties of the alternate branches of government to do so since its members also take an oath to uphold the United States Constitution. In other words, the other branches of government should follow the example set by President Andrew Jackson. Jackson is alleged to have once quipped, in response to judicial overreach by then SCOTUS Chief Justice Marshall, “John Marshall has made his decision. Now let him enforce it.” Such Constitutional discernment and inaction on the part of the other coordinate branches of government would render the Federal judiciary impotent and would have likely led to victory in the culture war long ago.
In sum, rather than waiting on the POTUS and the Senate confirmation process to place originalists on the bench or impeaching unconstitutional judges though a cumbersome process, the real power to tame an over active Federal judiciary resides within the express powers that our founding fathers wisely gave to our Congress. These powers consist of abolishing wayward lower courts, shrinking the jurisdiction of what the Federal courts can hear, and the other branches of government opting not to enforce blatantly unconstitutional, lawless judicial decisions. Now that the Republican party controls the House, the Senate, and the Presidency, it has no excuse for not exercising the powers that the Constitution affords them to beat back the judicial leviathan.
Although the power to do so exists, the question becomes is the political will also there to use it? Sadly, the Republican Party may not have the spine necessary to permanently solve this judicial recurring problem. After all, if they did solve the problem, the Republicans would then be simultaneously forfeiting a major campaign issue that they regularly use every four years to motivate its base (largely consisting of conservatives and evangelical Christians) to get out and vote for their candidates. This issue, of course, is the leftist direction of Supreme Court and the rest of the Federal judiciary. After all, if the Republicans permanently fixed the problem of an overactive Federal judiciary, the use of this election year issue would also and at the same time disappear. Such a self-serving political motivation may explain why the Republicans have not yet employed this ultimate nuclear option. May God give us statesmen as our leaders who are more concerned about solving a major societal crisis than they are in returning their own party to political power during the next election cycle. Only if this happens will America then legitimately be rescued from the soft form of judicial tyranny that she is now ensnared and victimized by.
- Tom Delay and Wallace Henley, Revival! Revolution! Rebirth! A Radical Call from the Former Majority Leader of the United States House of Representatives (World Ahead Books, 2016), 329-45. [↩]
- Ibid., 332. [↩]
- Ibid., 334. [↩]