We are rushing headlong toward a constitutional crisis.
The clash can best be understood by comparing the comment of former Associate Justice, Charles Evans Hughes, “We are under a Constitution, but the Constitution is what the judges say it is….,” with the comment of Chief Justice John Roberts, who described the courts function as one of, “…calling balls and strikes.”
Constitutional integrity demands that Hughes’ comment be defined as unacceptable, as the Constitution must be its own arbiter and not be warped at the whim of judges. Roberts’ perspective is the one that is required by the Constitution; that is, calling balls and strikes, but not determining that 3 strikes or 4 balls is unfair. Is an action legal or not, is the only concern of a court, and should be the only concern of a judge that respects the Constitution. Many Federal judges will honor and fulfill their oath of office, others will not.
The future battles of political America, and the constitutional crisis, will take place in the Federal courts, all of it swirling around the two positions above. The constitutionally authorized domain of these courts; that is, to insure the government acts in a lawful manner, will be pushed aside, as many judges pursue their political ends. We have had the earliest salvo of this battle initiated by Judge James Louis Robarts, in the District Court of the Western District of Washington.
There can be little doubt that the Progressive/Left, unable to win national success through the voting booth, will attempt to control America’s destiny through the decisions made by judges acting, similarly to Robarts, in violation of their oath of office. Progressive/Leftist judges will try to render impotent, the legal actions of President Donald Trump; or anything or anyone else that challenges their political intent.
Since we have accorded these judges the status of being the “high priests” of American law, this will be a difficult war to fight and win, but not an impossible one.
Robart’s illustrated the basic method of how these subversive courts will operate. They will challenge the quality, intent or impact of decisions (as they see it) rather than challenging their legality. As it pertains to presidential prerogatives, the only question shaping a judge’s ruling must be, “Did the president have the legal right and, in a larger sense, the requirement to act.”
This latter point must have greater emphasis. The President not only has ability to act in defense of our national security, he has, through his determinations alone, the obligation to act. That obligation should not, and cannot, be deterred by court ruling other than where overt illegality can be determined. The administrations attorney, appearing before the 9th Circuit Court, should not have attempted to explore or defend the impact of the executive action, his entire focus should have been on the President’s legal right act.
Robart’s stay of the executive order of President Trump, regarding a temporary block of all immigration from seven clearly documented terrorist fostering nations, never made any attempt to deal with the legality of Trump’s action. As Trump accurately suggested, Robart’s was, at that moment, only a, “so-called judge.” He was not acting as a judge but, rather, as a politician in a robe. It should also be noted that comments about an individual judge are not comments about the entire judiciary. This modus operandi of the Left; that is, extending a comment about one member of a group to mean a comment on all members of a group, has become all too common.
There is every reason to believe, based on numbers alone, that many of these political judges will continue their activism:
Of the 677 District Court judges 268 (40%) were appointed by Obama.
Of the 179 judges in the Courts of Appeal, 55 (31%) were appointed by Obama.
These judges have life-time appointments and, although impeachment is possible, that option is almost never invoked. More so, it is never used in response to the distorted quality of their decisions. Even verbal condemnation is restricted, since these judges are placed beyond reproach as the high priests of our judicial system and are, therefore, outside of censure.
There can be no doubt that the Progressive/left will try to use these judges as political legislators. We have witnessed their fanaticism since the election of Trump. The only “arrow left in their quiver” is the manipulation of law through the use of pliable political judges.
Are there ways that constitutional integrity can be maintained in the face of the assault that will be coming from numerous “so-called” judges? In his dissent from the 2015 Obergefell v. Hodges, marriage ruling, the late Justice Antonin Scalia warned that with “each decision unabashedly based not on law,” the Court moves “one step closer to being reminded of its own impotence.” What was Scalia suggesting? He was clearly identifying that the courts are a “paper tiger,” possessing no real power. Here are the basic, entirely constitutional methods, that could be used if the situation devolves to the degree I anticipate and Scalia projected:
- Trump can merely ignore the courts directive. The president has no legal right to ignore his constitutional presidential obligations by yielding to an unconstitutional court ruling. As Andrew Jackson said…the court has made their decision, now let them enforce it. As a response to consistent unconstitutional court action this option can be exercised.
- Congress has the constitutional authority to alter the jurisdiction of all Federal Courts below the Supreme Court. The congress can simply deny the lower courts the right to rule where they have clearly violated the Constitution. For example; Congress could remove immigration from the jurisdiction of the lower federal courts.
- Congress, in extreme circumstances, could eliminate any or all courts (other than the Supreme Court) in the Federal Court system. The only court that must constitutionally exist is the Supreme Court.
No one would advocate for any of these cures to be used arbitrarily. However, if many courts continue to demonstrate a commitment to ideology, rather than a commitment to law, then the notion of checks and balances (which now doesn’t exist with the courts) must be made manifest.
At this point, the Federal Courts have nearly “absolute power.” As a law of human nature, we understand that “absolute power” tends to corrupt “absolutely.” The other two branches of government must defend their own constitutional integrity. They cannot allow rogue courts to illegally disrupt the constitutional fiber of America.