OP-ED: The Founders Provided Us Remedies For A Runaway Judiciary

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here have been a series of recent court orders which rival the most egregious judicial decisions in American history; virtually all of which dramatically undermine the constitutional separation of powers as well the sovereignty of this nation.

What the country is witnessing now is the culmination of many decades of ever-expanding judicial activism and the cowardice of the Congress to exert its prerogative to rein in this runaway usurpation of political power.

The matter of the supremacy and influence of the Judiciary in a representative republic has been an issue of contention since this nation’s inception as the Founders, while brilliant in their overall concept of government, erred greatly in the creation of an unaccountable judiciary by relying on a factious Congress to serve as a check and balance on a co-equal branch whenever necessary.

A major debate during the constitutional ratification process in 1788 concerned the structure, power and control of the Judiciary. The issue was twofold: 1) the degree of independence and the level of accountability of federal judges and 2) Judicial review of laws and statutes passed by Congress.

This prompted Alexander Hamilton (a staunch defender of the current system), using the pseudonym “Publius” to write in Federalist Paper No. 78 that the Judiciary would be the weakest of the three branches as it would not be able to overpower the Congress, since it controlled the purse strings and the President controlled the enforcement of the court’s decisions.

Thus, the courts would have to depend on these branches to uphold their judgements. Further, federal judges must have life tenure and thus independence; however, Congress could remove a sitting judge via impeachment for high crimes and misdemeanors. He also argued that the courts should be tasked with the duty of reviewing statutes passed by Congress to determine if they are consistent with the Constitution as a means of restraint on the legislature. Hamilton further stated that because of the court’s inherent weakness in enforcing their judgements, the possibility of corruption affecting judicial reviews would be a non-issue.

Countering Hamilton’s argument was Robert Yates, using the pseudonym “Brutus” in the Anti-Federalist papers, who contended that his primary concern was that judges would substitute their will for the plain text of the Constitution. He wrote:

There is no power above them [the Courts] to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

Thomas Jefferson, a staunch opponent of a powerful central government, also recognized the potential abuse of power by an out-of-control Judiciary and a recalcitrant Congress. In a letter to a Mr. Jarvis in 1820 Jefferson wrote:

You seem to consider the judges the ultimate arbiter of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our Judges and their power are the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of judges from that is quite dangerous.

Perhaps the most astute observer of the United States from afar was Alexis de Tocqueville, who in 1835 published Democracy in America, his reflections on America prompted by a nine-month tour. Among his observations were the following:

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.

The President, who exercises a limited power, may err without causing great mischief in the state. Congress may decide amiss without destroying the union, because the electoral body may cause it to retract its decision. But if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war.

The entire ongoing judicial debacle relative to the Executive Orders and actions by President Trump is a giant leap forward into what all these men feared: that Federal District and Appellate Court judges, with the blessing of the Supreme Court, would substitute their will or political opinions for the text of the Constitution or statutes, thus, establishing an uncontrolled oligarchy resulting in potential chaos as future presidents would either ignore or acquiescence to their rulings.

By refusing to address this long-festering issue, Chief Justice John Roberts and the Supreme Court have given the green light to 856 District and Appellate judges to effectively determine, for example, if all self-declared refugees must be granted asylum and together with any visa holder can remain in the country regardless of national security considerations.

Therefore, the Judiciary, not the President or Congress, is in charge of the nation’s sovereignty as the Courts would be declaring themselves to be the sole arbitrators of all immigration policy relating to either legal or illegal immigrants as well as refugees.

However, there are remedies if the Supreme Court continues to allow the inferior courts to usurp the powers of Congress and the president. Congress, if it could get over its fractious tribalism, can:

✪ ONE: Abolish or severely curtail judicial review for the lower courts as the Congress created and can break, divide, or regulate them at will. Per Article 1, Section 8 and the judicial vesting clause of Article III, Section 1, the Legislative Branch has full authority over the creation of all courts below the Supreme Court.

✪ TWO: Redraw and change the boundaries of the district and circuit courts or even eliminate them entirely if they care to and create new ones with new judges.

✪ THREE: Defund enforcement of unconstitutional court decisions. As noted above in Federalist 78, Hamilton was unconcerned that the Courts would become all-powerful, as they had no means of enforcing their decisions. Therefore, the Executive Branch could simply refuse to enforce their edicts and the Congress could cut off funding for enforcement in reaction to the court’s absurd behavior.

However, central to any of the above steps is that Congress discharges its responsibility, something that it has been loath to do, as it is held captive to ideology, partisanship, and self-aggrandizement. If these latest judicial debacles cannot spur them to action, then nothing short of national chaos will.

Since Marbury v. Madison in 1803, the Federal Courts have been gradually aggregating more power to themselves than what the Founders originally envisioned; however, over the past 50 years, the Judiciary has become an out-of-control and unaccountable bludgeon beholden to the statists bent on transforming the nation.

In every electoral cycle an overwhelming majority of the populace is entirely focused on the entertainment aspect of the winner-take-all feature in elections while ignoring the unfettered role of the Federal Judiciary as a whole. It matters only on the margins whether it is a Donald Trump or any constitutional conservative who may win the presidency in the future as any of their actions or policies the statists disagree with can be thwarted or interminably delayed by unending filings, appeals, and judgements in the Courts.

Unless and until the Supreme Court or Congress acts, America will continue to be held hostage by the Federal Judiciary as it proceeds apace in seizing the constitutional authority delegated to the President and Congress, as these past few weeks have so amply displayed.✪

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