Blocking the Inferior Blockers

The Executive Branch and the courts will collide, as will the states and the courts, unless someone or a group of someones steps in to avert the catastrophe.

With courts around the country blocking Trump administration initiatives, there is no telling how the multitude of cases will play out. The U.S. Supreme Court thus far has reflected Chief Justice John Roberts’ timidity and overriding concern for the Court’s reputation, along with Justice Amy Coney Barrett’s persnickety proceduralism.

Only Justices Samuel Alito and Clarence Thomas have shown consistent willingness to take on hard cases and hold the lower courts to a respect for the letter of the law. Justices Neil Gorsuch and Bret Kavanaugh occasionally side with them, as is sometimes the case with Roberts, who operates as the swing vote.

The result has been excessively indulgent treatment of downright tyrannical lower courts and ludicrously overreaching decisions. Although the Constitution explicitly assigns all executive power to the president, these lower courts are micromanaging the president’s actions. This has led to calls for impeachments of judges and for the president to defy the courts’ decisions. That is an obviously untenable situation.

With the nation’s highest court showing itself willing to let lower courts run amuck on a regular basis, President Trump biding his time and counterpunching with numerous appeals and often-innovative legal arguments, Congress has kept out of the controversy. That is a dereliction of the legislature’s duty.

Congress is the branch of the government that “may from time to time ordain and establish” the “inferior courts” that are currently obstructing the president from executing his constitutional duties as he sees fit, which is his prerogative and not subject to anyone’s authority. (Even impeachment is only supposed to be relief from “high crimes and misdemeanors,” not for resolution of policy arguments.)

In addition, the Constitution grants Congress the authority to regulate and limit the Supreme Court’s appellate jurisdiction. Congress has shirked these responsibilities thus far.

This failure has been most prominent in regard to the inferior courts’ wanton obstruction of Trump’s immigration enforcement actions. It may be, however, that the Republican majorities in Congress are preparing to do something about this, writes Blaze News Senior Editor Daniel Horowitz:

According to sources, congressional allies plan to attach an amendment to upcoming legislation that would put an end to immigration-related lawfare once and for all.

The proposal would bar anyone who isn’t a green card holder—including all illegal aliens and temporary visa holders—from gaining standing in Article III courts to challenge their deportation. In other words, rulings by immigration judges would be final. Unless the government seeks to imprison someone on criminal charges, no foreign national has a due-process right to remain in the country against the national will. The bill simply reaffirms long-standing principles that activist judges have chipped away at for years.

Note that the term “immigration judges” refers to Executive Branch appointees in the Department of Justice who decide cases of immigrant removal and deportation. Judges in the inferior courts are overriding these decisions, over which they have no authority. The Supreme Court has yet to rule that those judges cannot do that.

In addition to this reform, the proposal would prevent these courts from interfering in state-level immigration enforcement actions:

The amendment also tackles lawfare targeting red states [that are] trying to enforce immigration laws. Once Trump leaves office, a legal backstop must be in place to prevent a fresh wave of illegal immigration from overrunning states like Florida, Texas, Oklahoma, Iowa, and Idaho.

Federal judges have repeatedly blocked these states from criminalizing illegal presence. This bill would strip federal courts of jurisdiction in such cases. Any legal challenge would go through state courts instead, making state supreme court rulings final and beyond the reach of federal review.

Each of these provisions would prevent courts from interfering in executive prerogatives at the federal and state levels. Seeing these egregious and repeated unconstitutional and dictatorial decisions by judges of these inferior courts, Congress has a constitutional duty to act.

Roberts regularly expresses his opinion that the president and the public should show respect for the courts. The Chief Justice has been extremely indulgent, however, in allowing the inferior courts to withhold respect from the Executive Branch and the states. That must change, or the executive and the courts will collide, as will the states and the courts, and no one will have respect for anybody.

Trump has been patient thus far. Pushing him into a choice between doing his duty or obeying clearly unconstitutional court decisions is an exceedingly foolish course to take.

As a practical matter, the need for congressional action is urgent, Horowitz notes: “Unless Trump starts ignoring rogue judicial rulings, this legislation is his only realistic path to carrying out mass deportations.”

As a factor in reestablishing some official respect for the rule of law, this reform is even more urgent.