03/02/2018
The excellent Daniel Horowitz writes in Conservative Review:Congress can END the tyranny of the courts TOMORROWThe story he’s referencing is Judges unleash ‘political weapon’ against Trump, By Alex Swoyer, The Washington Times, February 27, 2018, and we've been writing about the problem here for a while. (And by "while", I don’t mean just during the attack on Trump — Peter Brimelow wrote Judicial Imperialism in Forbes thirty years ago. )Even the Supreme Court
No, the Constitution doesn’t vest the lower courts with the power to immediately shut down our sovereignty. Congress has complete control over courts’ subjects of jurisdiction, as well as the appellate jurisdiction of the Supreme Court. This was made evident by a pair of high court opinions issued this week. These cases were relatively low-profile, but if Congress were paying attention, these cases should provide a blueprint for dealing with the political tyranny from the lower courts.
Tuesday, the Washington Times published an analysis of a trend we’ve been observing here for quite some time: How district judges have illegally seized the weapon of nationwide injunctions to place a national, illegal veto on every practice, tradition, law, and policy under the sun. The article quotes from legal scholars noting that this trend is very new and it has expanded the role of a court from settling disputes between two plaintiffs to essentially vetoing and determining national policy.
Here’s the problem in a nutshell: Leftist organizations can take any executive action and find a radical district judge within a liberal circuit to enjoin the entire practice nationwide and automatically win the appeal. They get to determine where to litigate any issue that is national in scope and will never take it to a circuit where they will lose. Thus, none of the good judges Trump is appointing in places like the Fifth and Eight Circuits will ever hear these cases. The Left wins every time, and there is never a circuit split, so the Supreme Court takes up appeals slowly, if ever. This is how we have the most extreme judges shutting down national policy and violating Supreme Court precedent and rarely being rebuked before their edicts do irreversible damage to our country. It also has the effect of swaying public opinion against a policy, because voters are treated to constant headlines of “Trump’s policy struck down,” or “Another Trump action ruled unconstitutional,” even though the Supreme Court justices would eventually overturn it if the case actually came before them.
Congress could simply clarify, in the Rules Enabling Act governing the administrative procedures of the courts, that the courts lack any power to issue nationwide injunctions beyond the individual plaintiff. Dave Brat’s bill does just that.
But if members of Congress were paying attention to the Supreme Court this week, particularly to Justice Thomas, they would see that their power over the courts is much more expansive than they think.
Ideally, the plain language of Article III Sec. II, along with its robust history, should be enough for Congress to remember that it has the power to determine any subject-matter jurisdiction and rules of standing before a federal court. But we all know that the Constitution is no longer the law of the land; the Supreme Court is. So, let’s review what the Supreme Court said this week.
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