Donald Trump promised to drain the swamp during his Presidential campaign. Since his inauguration he has gone to war with the bureaucracy and its efforts to undermine his campaign promises are unsurprising. But, what is more perplexing is the courts have gone all in on opposing the President’s efforts.
To be fair, Trump did not exactly endear himself to America’s judges. He attacked a judge over his Mexician heritage and during the campaign lobbed several attacks against an out of control judiciary. The thing is….Trump was right. Our judicial system is out of control. Judges are making laws. Not interpreting them as they should.
Perhaps a quick summary of our system of governance is in order. America is a unique Democratic Republic governed by a system of checks and balances under federalism. Under federalism, Congress passes laws and the President signs and enforces them. Congress, with the President, nominate and approve of judges but judges can rule on the constitutionality of laws. In essence, the Executive enforces laws, the Legislature makes laws, and the Judiciary looks at their constitutionality. This system ensures he branch has a check on one another.
But, recently, the Judiciary has grown to be an unchecked third arm of government. In order to preserve the judiciary’s independence, questioning judicial decisions is regarded as “undemocratic.” Sitting Presidents and Congress cannot comment on judicial actions and must accept them.
Of course this argument is absurd on its face. But, it is an argument many Americans sadly buy. But, if our judiciary is going to step outside its bounds it is perfectly fair to criticize our third branch and use the checks and balances of federalism to limits its power.
Trump hinted as much after his revised travel ban was shot down not on its constitutional merits, but what the judge assumed it was about. Trump’s first travel ban, banning immigration from seven majority Muslim countries, halting refugee resettlement for 120 days and banning green card holders from reentering the country was rejected by a judge in WA State and the 9th Circuit on constitutional grounds. In their findings, the 9th Circuit panel that heard the case found their was little reason for the government to halt members of a certain faith from entering the country if the government could not prove they are a danger.
Now, fast forward to this week and Hawaii District Judge Derrick Watson’s decision to issue a hold on Trump’s revised travel ban (oh, did I also mention he met with Obama right before the before his ruling). The state of Hawaii had sued the administration over the revised order arguing “The March 6, 2017 Executive Order was motivated by animus and a desire to discriminate on the basis of religion and/or national origin, nationality, or alienage.” In response, the Justice Department presented evidence showing the majority of terrorists captured or killed in the US had come from these six countries and the President had the right to enforce immigration laws as he saw fit (Congress abdicated this authority decades ago).
It might have been fine if the Judge Watson had ruled on the merits of the government’s case. Instead, the Obama lackey (I use the word on purpose) turned to Trump’s words during the campaign to justify his decision reinstating the national ban. He did not question the President had the authority to institute the ban but that it “The remarkable facts at issue here require no such impermissible inquiry,” Watson writes, referencing then-candidate Trump’s call for “a complete shutdown” of Muslim immigration and recent comments by Trump senior adviser Stephen Miller that the new order would result in “the same basic policy outcome for the country” as the first, now revoked, order.
Watson continues “These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose,” Watson wrote. “Any reasonable, objective observer would conclude…that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”
In other words, Watson is making policy based on the fact he does not like Trump the candidate. Constitutionality be damned. Fortunately, other rulings have been more measured. Judge James Robart in WA State approved of the Trump administration’s revised plans while a federal judge in Maryland shot down part but not all of the order.
In a fiery speech Wednesday night, Trump pledged to take his case to the Supreme Court. Turns out he has a case. More importantly, it seems some in the judiciary rankle at the judicial overreach of their peers. In a rare rebuke of their peers, five 9th Circuit Court of Appeals judges dissented and commented on everything from the process to the lack of any constitutional backing for the Circuit Court’s decision (ignoring case law, precedent and the statutory authority of the President).
It is unlikely Trump would win before even a full 9th Circuit Court panel but before the 4th Circuit Court, which covers Maryland, is more conservative and open to considering the Constitution. Unfortunately, many in our judicial system our not.
Because few Americans actually understand our system of governance an attack on the judiciary is seen as a dictatorial act when in fact it is perfectly legitimate. Indeed, there is absolutely nothing stopping Congress and the President from revising our entire judicial system. In fact, considering the out of control nature of our judiciary, it should be done.
The Constitution’s Article III, Section One (the document judges are supposed to interpret instead of the comments of an individual/s) states “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.” In other words, Congress and the President can create and remove courts as they see fit.
Don’t forget, in many states judges are elected on partisan, non-partisan and retain/do not retain elections. At the local level in many states judges are checked by the ballot. There is no reason why federal level judges should not be checked.
In his speech Wednesday night Trump hinted as much. He’s right. Why should a single district judge have the ability to stop a nationwide policy? Heck, why should even Circuit Court’s? When lower courts are split on a ruling (for example, the ACA’s health insurance subsidies), their decision only pertains to their region. A district or Circuit Court should only have the power to rule on the constitutionality of an action within their geographic region. Not the entire nation!
Such a simple reform would not require the elimination of an entire judicial system. Nor would it remove the judiciary’s independence. But, it would put them on notice that all branches are separate but equal. They all hold certain powers. And they all have the ability to check each other if one branch goes rogue.
The judiciary of the United States is going rogue. Congress and the President should check judges by reforming the system and remind the public that an independent judiciary does not mean their rulings can never be questioned. Nor the system ever reformed.