Judicial Tyranny

This terrific overreach by the federal judiciary is becoming most concerning. Donald Trump, like the first 44 incumbents, is President of the United States, whether you (or the federal judges) like it or not. He has all the rights, obligations, and duties of his predecessors. Like most of us, I worried about Obama’s overreach into prerogative rule with his pen and his phone. But we’ve seen none of that with Trump, his every action has been well within the Constitution. Mark Pulliam has some thoughts.

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.

(…) In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

via Judicial Tyranny’s Final Frontier – Online Library of Law & Liberty

That’s all true and very troubling, but what can we do about it? These are all Article III judges appointed during good behavior (which is not defined)m in other words, essentially for life, although they can be impeached, it is a very rare occurrence. It is also just possible that they could be removed by a writ of scire facias, a form of Chancery order which dates back to Edward I. The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Other than that, there is little legally to be done. I seem to remember that while the Supreme Court is constitutionally mandated, all the rest are the creation of the Congress, and could simply be disestablished, and new ones established, although at best, that would have the effect of retiring the judges, not firing them, and would certainly be messy for all concerned.

But perhaps there is a less, shall we say, formal method. Paul Mirengoff at Powerline writes this:

President Trump admires Andrew Jackson. He sees himself as Jacksonian.

Accordingly, it might instructive to recall how President Jackson is said to have responded when the Supreme Court ruled, in Worcester v. Georgia, that Georgia laws calling for the seizure of Cherokee lands violated federal treaties. Here is the statement Jackson may have made:

John Marshall has made his decision, now let him enforce it.

Jackson may never have uttered these words. However, both Georgia and Jackson ignored the Supreme Court’s decision. Chief Justice Marshall’s decision was never enforced.

At the rate liberal judges are going, we might see similar defiance of the judiciary by President Trump. I don’t expect Trump to respond that way if the ruling that he cannot temporarily ban immigration from six countries fails to survive judicial review. That ruling doesn’t seem important enough to defy the judiciary over.

I don’t either, but I can foresee occasions where it might be necessary. The founders considered the judiciary the weakest branch, and so there are fewer safeguards here, than anywhere else. That started changing with John Marshall and Marbury v. Madison, and that unchecked power has metatized rather badly in the last fifty years. I don’t know what the answer is, but a solution is needed.

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The Commerce Clause

Chief Justice John Marshall established a broa...

Image via Wikipedia

I’ve referred several time to the damage that the malinterpretation of the so-called commerce clause of the Constitution has done to freedom in the United States. First we should see what we are talking about, so here it is:

Congress shall have the power . . . to regulate commerce with foreign nations, among the several states and with the Indian tribes.

Like all of the Constitution it is pretty clear and straightforward, not really subject to misinterpretation, is it? That’s why I called it maliterpretation, in my opinion, it was done with malice aforethought.

What has brought this to the forefront is, of course, Obamacare. According to ink on paper (and James Madison in Federalist #25, as we shall see) this should be dead, no way, no how.

Richard A. Epstein over at Defining Ideas, a journal of the Hoover Institute, yesterday posted:

ObamaCare vs. The Commerce Clause

If Congress can regulate health care, it can regulate everything under the sun.


As everyone knows, the dispute over the individual mandate under the Patient Protection and Affordable Care Act (also known as ObamaCare) is due before the Supreme Court. The case will be argued this coming March, with a decision to be expected by June 2012—just in time to ignite political passions before the November presidential election. At this point, the bet has to be that the mandate will be affirmed, especially in light of the recent decision by Judge Laurence Silberman of the District of Columbia in Susan Seven-Sky v. Holder, which held that the individual mandate—whereby all persons must either purchase health-care insurance or pay a government penalty—falls within the power of Congress to regulate interstate commerce.

As we all know, this case will have many ramifications on our freedom and our ability to do business (especially in regards to creating jobs) and the general malaise many business owners are feeling. I think it will be the most important decision the Supreme Court will make in the first quarter of the 21st Century, at least. So we need to think carefully here. To continue:

Looked at from the vantage point of the original Constitution, ObamaCare should be dead on arrival. But the New Deal transformation of long-established Commerce Clause jurisprudence has introduced a set of unprincipled (but fine-grained) distinctions that turn the law into a mass of linguistic absurdities that should lead ordinary people to question the collective sanity of the legal profession. From the straightforward prose of the Commerce Clause, Judge Silberman concludes (accurately) that “[t]oday, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible.”

From this dubious premise (which has no mooring in either the text or history of the Commerce Clause), Judge Silberman’s closing salvo in Seven-Sky then waxes eloquently on “the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.” In one well-crafted sentence, he has managed to encapsulate everything that is wrong with our modern Commerce Clause jurisprudence.

Do I need to tell you, although I am a laymen, I completely agree. To continue:

In making this grand claim, Judge Silberman at no point cites the key 1824 decision of Chief Justice John Marshall in Gibbons v. Ogden on the proper scope of the Commerce Clause. At issue in Gibbons was whether Gibbons, the operator of two steamboats from New Jersey to New York, had to respect the exclusive franchise that had originally been given to Robert Fulton and Robert Livingstone (and assigned to Ogden) to operate steamboats in New York state waters.

Justice Marshall held that these voyages were within interstate commerce, meaning that the federal law trumped this form of state action. In so doing, however, he made clear the limits of the federal power. “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.” New York’s monopoly, therefore, was not disturbed with respect to boats that started and ended their journeys in New York state water. Marshall could not have been clearer: “Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.”

Mr Epstein carries on the history of the muddled interpretations that made the New Deal ‘legal’ and on down to the present day. That includes the famous Wickard v Filburn where the Supreme Court decided that feeding your own wheat to your own cows had a substantial impact on interstate commerce. Since it was decided by the Supreme Court, I would have to call this Supreme Silliness.

If you want to understand the background, you should read his article, besides it’s interesting to see how perfectly clear English can be perverted over the years.

I have very little to add to his scholarship. I would however remind you that if the government can force you to buy insurance, they can force you to buy anything else they desire. Is there a mandated Chevy Volt in your future?

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