Tuesday, January 16, 2018

End Judicial Tyranny with One Single Word - By John D. Donaldson

Since the election of President Trump, we have witnessed a series of rulings by Clinton- and Obama-appointed federal judges to block executive orders (E.O.) related to immigration.  In each case, the current system has allowed a single unelected judge to block the actions of a duly elected president who has attempted to exercise the authority conferred upon him by the Constitution and the voters.  Such judicial tyranny cannot be tolerated.
The only court created by the founders of the Constitution is the Supreme Court (SCOTUS), with all other federal courts established by Congress and administered by the Judicial Branch of government.  District courts, appellate courts, and the various circuits are all congressional initiatives.  Federal judges are nominated by the Executive Branch but confirmed by the congressional arm of government.
Throughout the history of the Republic, the appointment of judges by the party in power has been an ongoing effort to seat individuals of their own political philosophy.  When the parties were each more centrist, the process was somewhat less contentious, but as the left drifted farther from the Constitution using the concept of it being a living document, the divides have widened.  We now have a cadre of Obama appointed far-left judges who are prepared to exercise their political ideology over their sworn constitutional duties.  Some of these individuals in fact might have been more suitable for ambassadorships than lifetime judicial appointees, for their primary qualifications appear to be their history of donating or bundling money for a sitting president plus their demonstrated talent in the writing of legal fiction.
Currently, judge-shopping, an action elevated to an art form by advocacy groups and lower government entities in liberal circuits, will most likely engender a ruling devoid of legal merit but coinciding with the philosophy of the plaintiff.  The activist judge delivers a ruling, which then is arrogantly applied to the entire nation and interpreted as blocking the sitting president.  These rulings are most often overturned, but the glacial pace of the courts allows the ruling to stand for an inordinate time, often running out the clock on the original E.O.
There is talk of resolving the situation by appointing strict constitutionalist judges, as Trump is now doing, and "packing" the court.  "Dilution" would be a better term, for the sitting liberals will still enjoy their lifetime appointments, and it is axiomatic that impeachment is all but impossible, requiring two thirds of the Senate to agree.  While appointments are helpful by improving the odds of finding a judge prepared to fulfill his duties honestly, they do nothing to alleviate the judge-shopping or the inordinate delays.
There is a relatively simple answer: Congress can deliver a fix already contained within the Constitution but requires the defining of a single word.  This word is found in Article 3, Section 2, which deals with judicial power and jurisdiction:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The solution is for Congress to define "public Ministers" to include the president and vice president of the United States and all Senate-confirmed Cabinet ministers.  This would allow the Executive Branch to ignore lower-court rulings for E.O.s and various acts of Congress signed by the president and avoid the interests of the nation being held up by a single unelected lawyer of either political persuasion.  Some time limits for appeals should be built in to allow an issue to reach SCOTUS in a reasonable time less than the current two-year hiatus.  If the lawyers have done their research, there is no reason why an initial appeal to the circuit appeals court cannot be done in thirty days and a ruling given in another seven.
If SCOTUS refuses a case, then the lower-court ruling will be moot, and the E.O. or legislation will proceed as promulgated.  Alternatively, if the nine rule on the case, that decision will be considered constitutionally binding on the Executive and Legislative Branches.  Again, a time limit for hearing and ruling should not exceed sixty days.
This will infuriate the left, even though it does not limit leftists' access to the courts or threaten their appointments, for they have used the legal system to achieve goals they could not attain legislatively or at the ballot box.  It does, however, return the ability of the president to protect the nation and to address issues that Congress must ultimately decide on.  It also removes the ability of the "Resistance" to wait out a sitting president by setting definite time limits for judicial review.
Conversely, if an administration signs an E.O. that is patently unconstitutional, as were many of Obama's declarations, particularly those relating to immigration, the EPA, and other federal agency regulations, a ruling will be rendered before major harm can be done, or the regulation can be overturned by Congress.
If Congress determines that a solution can be achieved by defining a single word, they might look at other areas where this would be a useful technique.  For example, the definition of "natural born" in the Fourteenth Amendment has already been kicked back to Congress by SCOTUS to define.  It should be defined as an individual born in the USA or territories of at least one parent who is a U.S. citizen or of two parents who are both legal residents of the USA.  This will end the concept of "anchor babies" as a means of invading the USA.
The Constitution is a document where definitions have been used to bend society on a political basis.  Defining a single word, "ministers" in Article 3, as suggested here will end the ability of a politicized judiciary to resist the will of the people being exercised by their elected officials.  This can be done without all the bitter and useless efforts to impeach individual judges or to "pack" that branch of government.  Congress would thereby remove delay as a tactic while still giving all groups "their day in court" – and ending the current judicial tyranny.