Column: Courts, the Constitution and immigration
The Constitution is the foundation on which the government of the United States is based. It is so important that every significant office in our government mentions it in the oath that is required of those filling these positions. The president’s oath demands that our chief executive, will “preserve, protect and defend the Constitution of the United States.” Those in Congress swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic...” In the oath taken by federal judges, they must vow to “faithfully and impartially discharge and perform all the duties incumbent upon me...under the Constitution and laws of the United States.”
Since the establishment of judicial review in the landmark Marbury v Madison case, the myth has arisen that the Supreme Court is the final arbiter of what laws, policies, rules and regulations are or are not constitutional. The fallacy has continued thanks, in no small part by presidents, senators and legislators failing to take action against Supreme Court decisions they think may be unconstitutional. This is really a violation of their oaths. Their oaths demand that they “preserve, protect and defend,” or “support and defend the Constitution...” not what a majority of unelected, appointed for life, Supreme Court judges say the Constitution means. If our elected officials think that the Court is overstepping its bounds, legislating or creating law out of thin air, they have an obligation to at least attempt to stop what they consider is an unconstitutional decision.
The Founding Fathers imbedded in the Constitution a series of checks and balances just so one branch of government would not become more powerful than the others. The President appoints federal, appellate and Supreme Court justices. The Senate must approve those appointments, but if both the President and the Senate fear that the Judicial branch is overreaching or usurping power not Constitutionally allowed them, then judges who favor non-activist, original intent philosophies can be appointed and confirmed. This is a slow process and judges sometimes “evolve” from Constitutionalists to activists.
Daniel Horowitz’s book, “Stolen Sovereignty: How to Stop Unelected Judges from Transforming America,” lists several Constitutional ways to halt activist judges. An article by Steve McCann at the American Thinker website lists four Constitutional measures that will reign in tyrannical federal judges.
These Constitutional procedures have seldom been used, but the judiciary has never before so blatantly breached our founding document by judicial fiat. This has been a strategy of the far left for decades. Many of the programs and policies they would like to promote are so unpopular that they cannot get them passed through Congress. Conversely, sections of the Constitution, laws, policies and programs they oppose could not be successfully amended or withdrawn. Their only hope is activist judges ruling in their favor by manufacturing rights or injuries found in their interpretation of a “living” Constitution. The Constitution was made “living” by the Founders when they established an amendment procedure. The far left globalists know that most of the things they want to do could never get passed by amending the Constitution. So they have created the “living Constitution” theory and appointed and pushed progressive judges to emasculate our Founding Document so that it means whatever these justices say it means.
For instance, if the President writes an Executive Order temporarily restricting immigration from certain countries that are unstable, because these countries are not able to give us information we need to properly vet these immigrants, that order is Constitutional. It is Constitutional because it is within the scope of his duties in Article II. It is Constitutional because the President is enforcing a federal law, 8 U.S. Code Sec. 1187, which is what the Executive Branch, (the President) is supposed to do. A federal judge does not have the Constitutional power to issue a restraining order on the President’s Executive Order and the Ninth Circuit doesn’t have the Constitutional power to uphold that restraining order. This is a barefaced judicial theft of what is exclusively an executive power. Judges have no Constitutional right to implement, create, or restrict immigration law.
So how do we fight this assault on the Constitution? Article III, Section 2, gives Congress the control to regulate and limit the appellate jurisdiction of the Supreme Court. This means that Congress could stop the Court from hearing a case by limiting the federal court’s jurisdiction. The U.S Code is explicit enough to have kept the courts from interfering, but the power grab was too much of a temptation for those judges seeking more power. Congress, using the power assigned it in Article III, could simply pass a law, by simple majority, that states that the Supreme Court will not have any appellate jurisdiction regarding presidential restrictions on immigration. Congress can, in the same legislation, restrict lesser courts from having judicial review of such cases.
There are two other Constitutional processes that Congress and the President can and should do to regain power lost to activist courts: They can defund decisions that the majority of Congress believe to be unconstitutional, and the President can refuse to enforce what he believes to be the Courts unconstitutional decrees. President Obama’s administration refused to enforce part of the Supreme Court decision regarding the Arizona law about illegal immigrants, so there is a precedent.
The other thing that Congress can do is redraw, change the boundaries or eliminate circuit courts. In the case of the radical left Ninth Circuit Court of Appeals, as the current immigration case demonstrates, it needs to be eliminated. Its cases could be transferred to the Eighth or Tenth Circuit Courts at least until a new Ninth could be re-established. When something like 80 percent of its cases that reach the Supreme Court are overturned, the Ninth Circuit isn’t doing its job.