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.
http://www.americanthinker.com/articles/2018/01/end_judicial_tyranny_with_one_single_word.html