Contributor Ryan Walters
No, Marbury V. Madison Did Not Say The Supreme Court Gets Final Say On Constitutionality
By Ryan Walters
July 16,2018
Article From the Federalist and reprinted here by permission of author Ryan Walters
Many today hold the distorted view that Marbury v. Madison affirmed the Supreme Court as the most powerful branch in determining the constitutionality of a government action.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By; Ryan Walters
JULY 16, 2018
After President Trump announced his nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, many have been discussing the various justices’ judicial philosophies. The way the justices would exercise their power of judicial review has been central to this discussion.
Judicial review is currently revered in American political society. Judicial review is defined as the theory “that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary.”
The ability for a court to refuse to apply an unconstitutional law is a concept that Founding Father Alexander Hamilton discusses in Federalist 78, with the first practical application of the idea occurring in the Marbury v. Madison ruling in 1803. While Chief Justice John Marshall did declare a law unconstitutional in his ruling, many today hold the distorted view that his decision affirmed the court to be the most powerful branch in determining the constitutionality of a government action. This warped view has become so common the other two branches of the federal government have acquiesced to even the most egregious unconstitutional dictates from the high court.
What Hamilton Says in Federalist 78In Federalist 78, Hamilton describes the judicial power, which he calls “beyond comparison the weakest of the three departments of power.” Writing under the pseudonym Publius, Hamilton explains, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”
Hamilton goes on to state the court’s responsibility when facing such an act: “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
The courts should not apply a law that directly violates the Constitution, he says. This was Hamilton’s explanation of the court’s role in determining constitutionality: If the courts face the potential of applying an “act contrary to the manifest tenor of Constitution,” they should defer to the Constitution by refusing to apply it on the plaintiffs before them.
Hamilton concludes by stating, “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
What Happened in Marbury v. MadisonWhen John Adams lost his bid for reelection to bitter rival Thomas Jefferson in what Jefferson referred to as the “Revolution of 1800,” Adams decided to place as many Federalists—members of his political party—in national office as possible before he left the presidency. This litany of appointments resulted in his secretary of state, John Marshall, not being able to deliver all the commissions of these “midnight appointments” before Jefferson took office.
Since Jefferson wanted to place members of his party in these positions, he ordered his secretary of state, James Madison, to not deliver the remaining commissions. William Marbury, who did not have his commission delivered, filed a lawsuit against Madison, demanding that it be delivered. This was the case Marbury v. Madison.
Serving as chief justice of the Supreme Court, Adams’s former secretary of state John Marshall wrote the court’s unanimous (4-0) majority opinion, stating that while Marbury should receive his commission the court could not order it because the Judiciary Act of 1789 granted the Supreme Court original jurisdiction in a case not specified under Article 3 Section 2 of the Constitution. In short, Justice Marshall ruled the court could not apply a law that violates the Constitution.
In the decision, Marshall states that his oath to uphold the Constitution binds his decision-making, just as it binds the other branches:“It is apparent, that the framers of the constitution contemplated that instrument (the Constitution), as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”
Marshall does not say the judicial branch is the lone decider of what is constitutional. Marshall is claiming that the courts, like the other branches, cannot violate their oath to uphold the Constitution. Marshall simply followed his oath to preserve, protect, and defend the Constitution of the United States. This ruling is far from the preeminent judicial precedent many claim it to be.
Things Changed in Cooper v. Aaron in 1958In 1958, the Supreme Court rewrote the authority of the Supreme Court by providing an alternative interpretation of Marbury v. Madison. While the Cooper v. Aaron case focused on the implementation of Brown v. Board of Education, in an opinion authored by all nine justices the court claimed that Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by the Court and the country as a permanent and indispensable feature of our constitutional system.”
With this ruling, the courts claimed supremacy in defining the Constitution. Yet this court made a fundamentally false claim in its reasoning. The court misunderstood that when Article 6 of the Constitution states that the Constitution “shall be the supreme law of the land,” it is referring to the actual Constitution, not a court’s opinion on the Constitution. This becomes a crucial distinction when the country meets court opinions that rewrite or contradict the clear meaning of the Constitution.
As Supreme Court Justice Felix Frankfurter once emphasized, the significance lies in the “Constitution itself and not what we have said about it.”
The Myth of Judicial SupremacyThe courts’ claim to superiority contradicts Madison’s description of boundaries in the powers of the branches. Madison wrote in Federalist 49, “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
The judiciary does not possess a greater power when constitutional questions arise between branches, no matter what a majority of Supreme Court justices may say. As Thomas Jefferson noted in a letter to William Jarvis, “to consider judges as the ultimate arbiters of all constitutional questions…would place us under the despotism of an oligarchy.”
When reflecting upon judicial review and the role of the judiciary, it is important to remember, as Pulitzer Prize-winning constitutional historian Charles Warren once noted, “however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court.”
Ryan Walters is a high school teacher in McAlester, Oklahoma. He teaches Advanced Placement courses in world history, U.S. history, and U.S. government. He can be reached by email at ryanwalters37@gmail.com or on Twitter @ryanmwalters.
Photo public domain
Many today hold the distorted view that Marbury v. Madison affirmed the Supreme Court as the most powerful branch in determining the constitutionality of a government action.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By; Ryan Walters
JULY 16, 2018
After President Trump announced his nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, many have been discussing the various justices’ judicial philosophies. The way the justices would exercise their power of judicial review has been central to this discussion.
Judicial review is currently revered in American political society. Judicial review is defined as the theory “that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary.”
The ability for a court to refuse to apply an unconstitutional law is a concept that Founding Father Alexander Hamilton discusses in Federalist 78, with the first practical application of the idea occurring in the Marbury v. Madison ruling in 1803. While Chief Justice John Marshall did declare a law unconstitutional in his ruling, many today hold the distorted view that his decision affirmed the court to be the most powerful branch in determining the constitutionality of a government action. This warped view has become so common the other two branches of the federal government have acquiesced to even the most egregious unconstitutional dictates from the high court.
What Hamilton Says in Federalist 78In Federalist 78, Hamilton describes the judicial power, which he calls “beyond comparison the weakest of the three departments of power.” Writing under the pseudonym Publius, Hamilton explains, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”
Hamilton goes on to state the court’s responsibility when facing such an act: “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
The courts should not apply a law that directly violates the Constitution, he says. This was Hamilton’s explanation of the court’s role in determining constitutionality: If the courts face the potential of applying an “act contrary to the manifest tenor of Constitution,” they should defer to the Constitution by refusing to apply it on the plaintiffs before them.
Hamilton concludes by stating, “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
What Happened in Marbury v. MadisonWhen John Adams lost his bid for reelection to bitter rival Thomas Jefferson in what Jefferson referred to as the “Revolution of 1800,” Adams decided to place as many Federalists—members of his political party—in national office as possible before he left the presidency. This litany of appointments resulted in his secretary of state, John Marshall, not being able to deliver all the commissions of these “midnight appointments” before Jefferson took office.
Since Jefferson wanted to place members of his party in these positions, he ordered his secretary of state, James Madison, to not deliver the remaining commissions. William Marbury, who did not have his commission delivered, filed a lawsuit against Madison, demanding that it be delivered. This was the case Marbury v. Madison.
Serving as chief justice of the Supreme Court, Adams’s former secretary of state John Marshall wrote the court’s unanimous (4-0) majority opinion, stating that while Marbury should receive his commission the court could not order it because the Judiciary Act of 1789 granted the Supreme Court original jurisdiction in a case not specified under Article 3 Section 2 of the Constitution. In short, Justice Marshall ruled the court could not apply a law that violates the Constitution.
In the decision, Marshall states that his oath to uphold the Constitution binds his decision-making, just as it binds the other branches:“It is apparent, that the framers of the constitution contemplated that instrument (the Constitution), as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”
Marshall does not say the judicial branch is the lone decider of what is constitutional. Marshall is claiming that the courts, like the other branches, cannot violate their oath to uphold the Constitution. Marshall simply followed his oath to preserve, protect, and defend the Constitution of the United States. This ruling is far from the preeminent judicial precedent many claim it to be.
Things Changed in Cooper v. Aaron in 1958In 1958, the Supreme Court rewrote the authority of the Supreme Court by providing an alternative interpretation of Marbury v. Madison. While the Cooper v. Aaron case focused on the implementation of Brown v. Board of Education, in an opinion authored by all nine justices the court claimed that Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by the Court and the country as a permanent and indispensable feature of our constitutional system.”
With this ruling, the courts claimed supremacy in defining the Constitution. Yet this court made a fundamentally false claim in its reasoning. The court misunderstood that when Article 6 of the Constitution states that the Constitution “shall be the supreme law of the land,” it is referring to the actual Constitution, not a court’s opinion on the Constitution. This becomes a crucial distinction when the country meets court opinions that rewrite or contradict the clear meaning of the Constitution.
As Supreme Court Justice Felix Frankfurter once emphasized, the significance lies in the “Constitution itself and not what we have said about it.”
The Myth of Judicial SupremacyThe courts’ claim to superiority contradicts Madison’s description of boundaries in the powers of the branches. Madison wrote in Federalist 49, “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
The judiciary does not possess a greater power when constitutional questions arise between branches, no matter what a majority of Supreme Court justices may say. As Thomas Jefferson noted in a letter to William Jarvis, “to consider judges as the ultimate arbiters of all constitutional questions…would place us under the despotism of an oligarchy.”
When reflecting upon judicial review and the role of the judiciary, it is important to remember, as Pulitzer Prize-winning constitutional historian Charles Warren once noted, “however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court.”
Ryan Walters is a high school teacher in McAlester, Oklahoma. He teaches Advanced Placement courses in world history, U.S. history, and U.S. government. He can be reached by email at ryanwalters37@gmail.com or on Twitter @ryanmwalters.
Photo public domain
The Ratchet Effect on American Politics
By Ryan Walters
May 10, 2018
In a 1977 speech to the Institute of Public Relations, Margaret Thatcher said, "Britain is no longer in the politics of the pendulum, but of the ratchet."
Margaret Thatcher's description of the political state of Great Britain could just as accurately describe the state of politics in the United States in 2018. Many conservatives have found solace in the belief that times of statist control will result in the country shifting in a more conservative direction. The problem with this theory is that while it may accurately describe the mood of the country, it does not describe the mood of the ruling political figures. Republicans, after years of Democratic rule, have found themselves in control of the House, the Senate, and the presidency, but we haven't seen a significantly different conservative policy.
The Trump administration has cut back on regulations including the individual mandate in Obamacare, issued a tax cut, and appointed originalist federal judges. There has also been the passage of a $1.3-billion omnibus spending bill that continued funding Planned Parenthood, furthering the expansion of the federal government. The explanation of this phenomenon is provided in the idiom Thatcher coined as the "ratchet effect." Once liberals have ratcheted the nation far to the left, conservatives cannot turn the ratchet the other direction. They can slow or maybe even stop the lurch to the left, but they can never bring the country any farther back from where the left has turned them. The left has the nation on autopilot toward an ever growing centralized government. In 2018, with the constitutional principles, hanging only by a thread, bold candidates and bold solutions must be the answer.
Bold Candidates
Conservatives are often quick to rally around the most articulate conservatives. The ability of a candidate to explain constitutional conservatism is a tremendous quality for a candidate to have, but time and time again, we have seen articulate conservatives bend to the will of the progressive majority. The most sought after attribute future candidates should possess was best stated by Ron DeSantis as he was describing the late Supreme Court justice Antonin Scalia: "[p]erhaps the most important quality for a constitutionalist Supreme Court justice is something that Scalia demonstrated in spades: backbone. There will be times when the proper reading of the Constitution will diverge sharply from the conventional wisdom of D.C. elites, the legacy press and the legal intelligentsia. Scalia never wilted in the face of intense criticism; indeed, he reveled in it, as it was a sign that he was properly discharging his constitutional duty." This backbone is the quality that allowed Scalia to be successful.
In Washington, D.C., there are intense pressures applied to representatives. Those who challenge the system will find that there is something that both sides of the aisle can agree on: they hate you. This pressure applied over years has proven incredibly successful at wearing down even the most conservative of legislators. Candidates must have the "backbone" of an Antonin Scalia to stand up to the prolonged pressure.
William Buckley sums up what this type of candidate looks like in his mission statement for National Review, 1955: "[a] conservative is someone who stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it." In order to get this type of candidate, we must reject political prognosticators who press conservatives to back moderate safe candidates "who can win." Traditional red states must nominate these candidates. Local Republican leaders should press to change their nominating process from primaries to caucuses. Caucuses allow grassroots supporters to have a larger impact than special interest groups. Caucuses give local community leaders the ability to make the case for their bold constitutional candidate. It was a Utah caucus that produced Mike Lee. Just a few bold candidates like Mike Lee do more for conservatism than hundreds of candidates who don't have the temerity to fight back.
Electing bold candidates is not enough. The federal government will perpetually grow in power in the corrupted model in place today. This is far from the government the founders intended for America. The bold solution for our federal government, unmoored from constitutional principles, is found in the Constitution itself.
Bold Solutions
On September 15, 1787, at the Constitutional Convention, George Mason of Virginia was worried about allowing only Congress to amend the Constitution. Mason's concern was that if Congress was part of the problem, it would block beneficial change. James Madison's notes describe Mason's position when discussing the Amendment process: "on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case."
As Mark Levin lays out masterfully is his book The Liberty Amendments, Article V of the Constitution allows the American people to bypass Congress to directly amend the Constitution.
The states through conventions have the ability to directly propose and ratify amendments to the Constitution. This gives states the ability to utilize the constitutional concept of federalism to take back some of the powers usurped by the federal government. The amendments proposed by Levin include a balanced budget amendment limiting spending and taxation; an amendment repealing the 17th Amendment, thereby empowering state legislators, as the founders originally put in place; an amendment requiring photo ID to vote to protect our elections; an amendment allowing the national legislature or state legislatures to override a ruling from the Supreme Court with a three-fifths vote; an amendment allowing two thirds of states the ability to override federal statutes; and amendments placing term limits on Congress and limiting federal judges to one 12-year term. These amendments will structurally place the federal government back in the constitutional constraints that embody the separation of powers principle that limits the ability for government to become tyrannical. The term limits imposed will change the dynamics of the elected bodies. No longer will leadership be confined to members who have been influenced by D.C. corruption for decades. Elected officials will be much more accountable to the needs of their constituents and less likely to deviate from their core principles.
Short- and Long-Term Solutions
Amending the Constitution through an Article V convention is not a solution that will occur within the next few months. It may take years to accomplish, but it is a structural solution to bring the country back under constitutional principles. The country did not devolve to this point in a matter of months, and consequently, the long-term solution is not going to be a rapid fix. That should not deter conservatives. Conservatives should join the grassroots movement to push for a convention.
In the short term, we must back candidates with backbone – candidates who will fight the progressives in both parties. These bold candidates must be able to withstand the onslaught levied against them, slow the statist agenda, and become beacons for the conservative movement at the national level. We must break through the ratchet effect on government and make significant strides to save constitutional conservatism.
Ryan Walters teaches A.P. History courses at McAlester High School in McAlester, Okla. He is a featured columnist at The Liberty Bell Online. He can be reached by email at ryanwalters37@gmail.com or on Twitter at @ryanmwalters.
Source;https://www.americanthinker.com/articles/2018/05/the_ratchet_effect_on_american_politics.html
Reprinted with permission of Author.Ryan Walters
Margaret Thatcher's description of the political state of Great Britain could just as accurately describe the state of politics in the United States in 2018. Many conservatives have found solace in the belief that times of statist control will result in the country shifting in a more conservative direction. The problem with this theory is that while it may accurately describe the mood of the country, it does not describe the mood of the ruling political figures. Republicans, after years of Democratic rule, have found themselves in control of the House, the Senate, and the presidency, but we haven't seen a significantly different conservative policy.
The Trump administration has cut back on regulations including the individual mandate in Obamacare, issued a tax cut, and appointed originalist federal judges. There has also been the passage of a $1.3-billion omnibus spending bill that continued funding Planned Parenthood, furthering the expansion of the federal government. The explanation of this phenomenon is provided in the idiom Thatcher coined as the "ratchet effect." Once liberals have ratcheted the nation far to the left, conservatives cannot turn the ratchet the other direction. They can slow or maybe even stop the lurch to the left, but they can never bring the country any farther back from where the left has turned them. The left has the nation on autopilot toward an ever growing centralized government. In 2018, with the constitutional principles, hanging only by a thread, bold candidates and bold solutions must be the answer.
Bold Candidates
Conservatives are often quick to rally around the most articulate conservatives. The ability of a candidate to explain constitutional conservatism is a tremendous quality for a candidate to have, but time and time again, we have seen articulate conservatives bend to the will of the progressive majority. The most sought after attribute future candidates should possess was best stated by Ron DeSantis as he was describing the late Supreme Court justice Antonin Scalia: "[p]erhaps the most important quality for a constitutionalist Supreme Court justice is something that Scalia demonstrated in spades: backbone. There will be times when the proper reading of the Constitution will diverge sharply from the conventional wisdom of D.C. elites, the legacy press and the legal intelligentsia. Scalia never wilted in the face of intense criticism; indeed, he reveled in it, as it was a sign that he was properly discharging his constitutional duty." This backbone is the quality that allowed Scalia to be successful.
In Washington, D.C., there are intense pressures applied to representatives. Those who challenge the system will find that there is something that both sides of the aisle can agree on: they hate you. This pressure applied over years has proven incredibly successful at wearing down even the most conservative of legislators. Candidates must have the "backbone" of an Antonin Scalia to stand up to the prolonged pressure.
William Buckley sums up what this type of candidate looks like in his mission statement for National Review, 1955: "[a] conservative is someone who stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it." In order to get this type of candidate, we must reject political prognosticators who press conservatives to back moderate safe candidates "who can win." Traditional red states must nominate these candidates. Local Republican leaders should press to change their nominating process from primaries to caucuses. Caucuses allow grassroots supporters to have a larger impact than special interest groups. Caucuses give local community leaders the ability to make the case for their bold constitutional candidate. It was a Utah caucus that produced Mike Lee. Just a few bold candidates like Mike Lee do more for conservatism than hundreds of candidates who don't have the temerity to fight back.
Electing bold candidates is not enough. The federal government will perpetually grow in power in the corrupted model in place today. This is far from the government the founders intended for America. The bold solution for our federal government, unmoored from constitutional principles, is found in the Constitution itself.
Bold Solutions
On September 15, 1787, at the Constitutional Convention, George Mason of Virginia was worried about allowing only Congress to amend the Constitution. Mason's concern was that if Congress was part of the problem, it would block beneficial change. James Madison's notes describe Mason's position when discussing the Amendment process: "on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case."
As Mark Levin lays out masterfully is his book The Liberty Amendments, Article V of the Constitution allows the American people to bypass Congress to directly amend the Constitution.
The states through conventions have the ability to directly propose and ratify amendments to the Constitution. This gives states the ability to utilize the constitutional concept of federalism to take back some of the powers usurped by the federal government. The amendments proposed by Levin include a balanced budget amendment limiting spending and taxation; an amendment repealing the 17th Amendment, thereby empowering state legislators, as the founders originally put in place; an amendment requiring photo ID to vote to protect our elections; an amendment allowing the national legislature or state legislatures to override a ruling from the Supreme Court with a three-fifths vote; an amendment allowing two thirds of states the ability to override federal statutes; and amendments placing term limits on Congress and limiting federal judges to one 12-year term. These amendments will structurally place the federal government back in the constitutional constraints that embody the separation of powers principle that limits the ability for government to become tyrannical. The term limits imposed will change the dynamics of the elected bodies. No longer will leadership be confined to members who have been influenced by D.C. corruption for decades. Elected officials will be much more accountable to the needs of their constituents and less likely to deviate from their core principles.
Short- and Long-Term Solutions
Amending the Constitution through an Article V convention is not a solution that will occur within the next few months. It may take years to accomplish, but it is a structural solution to bring the country back under constitutional principles. The country did not devolve to this point in a matter of months, and consequently, the long-term solution is not going to be a rapid fix. That should not deter conservatives. Conservatives should join the grassroots movement to push for a convention.
In the short term, we must back candidates with backbone – candidates who will fight the progressives in both parties. These bold candidates must be able to withstand the onslaught levied against them, slow the statist agenda, and become beacons for the conservative movement at the national level. We must break through the ratchet effect on government and make significant strides to save constitutional conservatism.
Ryan Walters teaches A.P. History courses at McAlester High School in McAlester, Okla. He is a featured columnist at The Liberty Bell Online. He can be reached by email at ryanwalters37@gmail.com or on Twitter at @ryanmwalters.
Source;https://www.americanthinker.com/articles/2018/05/the_ratchet_effect_on_american_politics.html
Reprinted with permission of Author.Ryan Walters
Should Presidents And Legislatures Ignore Crazy Court Decisions? Alexander Hamilton Thinks So
By Ryan Walters
MARCH 1, 2018
---------------------------------------------------------------------------------------------------------------------------------------------
When a president or legislature is faced with following either a court ruling they know has no constitutional basis or the actual Constitution, they should heed Hamilton’s advice.
--------------------------------------------------------------------------------------------------------------------------------------------------
Many conservatives hold conflicting positions about dealing with illegitimate federal court rulings. They blast rulings from the high courts as unconstitutional, illegal, and improper, while stating the other branches of government must follow these rulings.
Conservatives watched in disbelief, for example, as federal courts ruled that President Trump’s treatment of foreign nationals was unconstitutional. Considering the seven applicable federal statutes, the president was on the firmest legal footing with three separate executive orders limiting immigration from countries that pose a national risk. While the Supreme Court months later upheld parts of these travel bans, this was just the latest example of a more central problem: lawless judges using their position to launch political attacks that slow or halt conservative policy.The Supreme Court usurping legislative power by rewriting the Obamacare “tax” and creating a right for homosexual couples to marry in Obergefell v. Hodges make clear the highest court of the land rejects any notion of judicial restraint. Some conservatives claim that nothing can be done as a direct response to improper rulings. After every ruling, they reiterate that federal courts and the Supreme Court are the final adjudicator on constitutional matters, that their rulings are final and must be upheld no matter their lack of legal reasoning.
The belief in the finality of federal judicial decisions runs contrary to our earliest descriptions of the judiciary. In 1788 Alexander Hamilton detailed the power of the judicial branch.
The Limits Alexander Hamilton Understood for CourtsOne of the early objections to the Constitution was the role it outlined for the judiciary. Many antifederalists withheld their support for this new governing document until a better description of the power of the judiciary was provided. An antifederalist using the pseudonym Brutus published an essay in 1787 concerning the power the Constitution provides the judiciary.
“There is no power above them, 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,” he writes in Anti-Federalist 15.Many Americans share this concern today. Brutus believed the judiciary would possess unchecked power to affect laws, which would give them power over the legislature, and, therefore, the people themselves. Hamilton responds in Federalist 78 by explaining the judiciary’s lack of power: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments,” he writes in Federalist 78.
Hamilton states judgements from the judiciary must be legally sound, and that the court’s entire judicial power rests on the acceptance of their judgements. The inverse is also true. If their judgements are not legally sound, they will not be accepted. The courts have neither “the sword or the purse,” “neither force nor will.” The judiciary has no power to enforce their rulings, ensuring the soundness of their judgements. The court’s reliance on the “executive arm” safeguards the public from improper rulings imposed upon them from a rogue court.
Federal judges take an oath to uphold the Constitution. So do legislatures, and so does the president. Are they to break their oaths to uphold what is constitutionally sound because a federal court has issued a ruling? The real question is, “Is the judicial branch the only branch that is given the responsibility to determine constitutionality?” The answer should be obvious.
The Idea of Judicial ReviewThe seminal case of judicial review is Marbury v. Madison. In that ruling, John Marshall sets the precedent of the courts declaring an act of the legislature unconstitutional. Should courts be able to deem a certain law unconstitutional? The answer was actually provided well before the 1803 Marbury v. Madison ruling. In 1788, Hamilton explained that determining constitutionality of legislation is a proper function of the court:
It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Federalist 78
The courts are to be obligated to the Constitution over an act from the legislature if the two come into conflict. Therefore, if an injured party comes before a judge with a situation where the legislature has acted unconstitutionally, the judge is bound to follow his oath to uphold the Constitution. Does this make the judiciary superior to the legislature? Again, Hamilton provides the answer:
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental (emphasis added). Federalist 78
The Constitution is the legal representation of the “laws of Nature and of Nature’s God” laid out in the Declaration of Independence. No law the legislature enacts can take precedent over the Constitution.
The same can be said about unconstitutional court rulings. When a president or legislature is faced with a dilemma of following a ruling they know has no constitutional basis or follow the actual constitution itself, they should heed Hamilton’s advice. Follow the law that is fundamental, the law that has its foundation in natural law, rather than simply coming from the mind of a few jurists.
Unconstitutional Court Rulings Happen AplentySome of the most egregious court rulings in our nation’s history have contributed to the horrific treatment of African Americans. One of the most significant causes of the Civil War was the Dred Scott v. Sandford ruling in 1857. Roger Taney, writing the opinion of the court, proclaimed that Dred Scott could not be recognized as a citizen of any state. With this ruling the court sent the message to abolitionists that there was no path to end slavery through the political system.
If President James Buchanan and the 35th Congress had stated that they had no intention of following a Supreme Court ruling that violated the very natural law of liberty that ungirded the entire U.S. Constitution, Congress would have felt added pressure to find a political solution, and the nation may have avoided the Civil War. This ruling allowed Congress to shift responsibility to the court and thus enshrined the deplorable continuation of slavery until more than 600,000 Americans lay dead.
Another example of the court setting back rights for African Americans was the Plessy v. Ferguson ruling in 1896. Even though the Fourteenth Amendment with its Equal Protection Clause had been ratified in 1868, the court found that the Louisiana law separating blacks from whites was constitutional. This ruling legitimized the Jim Crow laws of the South.
Instead of a president or a subsequent Congress repudiating this decision, the nation waited until Brown v. Board of Educationin 1954 for the court to correct their outrageous decision. If the president is sworn to uphold the Constitution, why would he use his power as the chief executive to enforce a court decision that clearly violates the Constitution?
The decision to take on the legitimacy of a federal court ruling should not be made lightly. There must be a clear violation in the decision that the president articulates. This criteria would be met with any of the recent court rulings limiting the president’s power to curtail immigration. Congress should also move to limit the court’s jurisdiction over matters that involve immigration policy, per the Constitution’s Article III Section 2. While this is redundant considering the courts have no jurisdiction in many of these cases, this would place the judiciary on notice that their violations of clear legal precedent will meet swift action.
Objections to Following the Constitution Don’t SquareThose who reject Hamilton’s view often state that ignoring Supreme Court rulings could lead to anarchy. Then the Left would ignore rulings they don’t agree with and the nation would head toward lawlessness.
We are already at a time where the Left doesn’t abide by federal law. The sanctuary cities all over the country are great evidence of the Left’s lack of respect of federal law. At this point the Left can and does undo any legislation in such ways, so lawless court rulings mute election victories for the Right. The electorate gave Donald Trump the presidency in part to deal with the illegal immigration problem, but unlawful decisions from federal courts have made his ability to institute his policies nearly impossible.
Those who reject defying unconstitutional court rulings do not have a valid solution.Daniel Horowitz argues the courts are “irremediably broken,” that there is no correcting this shift to the Left. Those who reject defying unconstitutional court rulings do not have a valid solution. Their first response is to call for nominating better judges. This answer is feeble at best, and a red herring at worst.
As law schools shift further and further to the Left, it is increasingly difficult to find judges that interpret the Constitution in accordance with its original intent. Nominating originalist judges has proven a difficult task for even the most conservative of presidents. President Ronald Reagan nominated Anthony Kennedy to the Supreme Court. Kennedy wrote the opinion creating a right to marriage for homosexual couples in Obergefell v. Hodges, a right which has no constitutional precedent.
Impeachment and constitutional amendments have proven to be futile. There is yet to be a successful example of an impeachment of a Supreme Court justice, and a constitutional amendment stripping the court’s power could be years, maybe even decades away. Every day the country is bombarded by erroneous federal court rulings that dismember the Constitution. Conservatives must rally around a response to these assaults of our political system or even when they win elections they will never be able to institute their agenda.
Stop Talking, and Start ActingIf America continues to allow the judiciary to act outside of its proper role in government, the country will continue to fall away from its constitutional foundation. Every summer Americans sit with bated breath, waiting to see what parts of the Constitution remain intact after that year’s Supreme Court decisions.
Conservatives write article after article detailing the damage done by these rulings. These commentators lament the state of the judiciary, and declare that we need better judges. Then nothing changes and the following year the scenario plays itself out again.
Hamilton has prescribed a solution that could begin tomorrow. The judicial branch must be held accountable for its rulings. The president and congress must force the judiciary to base their rulings in the Constitution.
Federal court rulings have authority only if they are grounded in the Constitution. The branch Hamilton called “beyond comparison the weakest of the three departments of power” must be forced to operate within its constitutional constraints, or the country will move closer toward being ruled by a judicial oligarchy.
Ryan Walters is a high school teacher in McAlester, Oklahoma. He teaches Advanced Placement courses in world history, U.S. history, and U.S. government. He can be reached by email at ryanwalters37@gmail.com or on Twitter @ryanmwalters.
Source; http://thefederalist.com/2018/03/01/presidents-legislatures-ignore-crazy-court-decisions-alexander-hamilton-thinks/
Reprinted with permission of author Ryan Walters
When a president or legislature is faced with following either a court ruling they know has no constitutional basis or the actual Constitution, they should heed Hamilton’s advice.
--------------------------------------------------------------------------------------------------------------------------------------------------
Many conservatives hold conflicting positions about dealing with illegitimate federal court rulings. They blast rulings from the high courts as unconstitutional, illegal, and improper, while stating the other branches of government must follow these rulings.
Conservatives watched in disbelief, for example, as federal courts ruled that President Trump’s treatment of foreign nationals was unconstitutional. Considering the seven applicable federal statutes, the president was on the firmest legal footing with three separate executive orders limiting immigration from countries that pose a national risk. While the Supreme Court months later upheld parts of these travel bans, this was just the latest example of a more central problem: lawless judges using their position to launch political attacks that slow or halt conservative policy.The Supreme Court usurping legislative power by rewriting the Obamacare “tax” and creating a right for homosexual couples to marry in Obergefell v. Hodges make clear the highest court of the land rejects any notion of judicial restraint. Some conservatives claim that nothing can be done as a direct response to improper rulings. After every ruling, they reiterate that federal courts and the Supreme Court are the final adjudicator on constitutional matters, that their rulings are final and must be upheld no matter their lack of legal reasoning.
The belief in the finality of federal judicial decisions runs contrary to our earliest descriptions of the judiciary. In 1788 Alexander Hamilton detailed the power of the judicial branch.
The Limits Alexander Hamilton Understood for CourtsOne of the early objections to the Constitution was the role it outlined for the judiciary. Many antifederalists withheld their support for this new governing document until a better description of the power of the judiciary was provided. An antifederalist using the pseudonym Brutus published an essay in 1787 concerning the power the Constitution provides the judiciary.
“There is no power above them, 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,” he writes in Anti-Federalist 15.Many Americans share this concern today. Brutus believed the judiciary would possess unchecked power to affect laws, which would give them power over the legislature, and, therefore, the people themselves. Hamilton responds in Federalist 78 by explaining the judiciary’s lack of power: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments,” he writes in Federalist 78.
Hamilton states judgements from the judiciary must be legally sound, and that the court’s entire judicial power rests on the acceptance of their judgements. The inverse is also true. If their judgements are not legally sound, they will not be accepted. The courts have neither “the sword or the purse,” “neither force nor will.” The judiciary has no power to enforce their rulings, ensuring the soundness of their judgements. The court’s reliance on the “executive arm” safeguards the public from improper rulings imposed upon them from a rogue court.
Federal judges take an oath to uphold the Constitution. So do legislatures, and so does the president. Are they to break their oaths to uphold what is constitutionally sound because a federal court has issued a ruling? The real question is, “Is the judicial branch the only branch that is given the responsibility to determine constitutionality?” The answer should be obvious.
The Idea of Judicial ReviewThe seminal case of judicial review is Marbury v. Madison. In that ruling, John Marshall sets the precedent of the courts declaring an act of the legislature unconstitutional. Should courts be able to deem a certain law unconstitutional? The answer was actually provided well before the 1803 Marbury v. Madison ruling. In 1788, Hamilton explained that determining constitutionality of legislation is a proper function of the court:
It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Federalist 78
The courts are to be obligated to the Constitution over an act from the legislature if the two come into conflict. Therefore, if an injured party comes before a judge with a situation where the legislature has acted unconstitutionally, the judge is bound to follow his oath to uphold the Constitution. Does this make the judiciary superior to the legislature? Again, Hamilton provides the answer:
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental (emphasis added). Federalist 78
The Constitution is the legal representation of the “laws of Nature and of Nature’s God” laid out in the Declaration of Independence. No law the legislature enacts can take precedent over the Constitution.
The same can be said about unconstitutional court rulings. When a president or legislature is faced with a dilemma of following a ruling they know has no constitutional basis or follow the actual constitution itself, they should heed Hamilton’s advice. Follow the law that is fundamental, the law that has its foundation in natural law, rather than simply coming from the mind of a few jurists.
Unconstitutional Court Rulings Happen AplentySome of the most egregious court rulings in our nation’s history have contributed to the horrific treatment of African Americans. One of the most significant causes of the Civil War was the Dred Scott v. Sandford ruling in 1857. Roger Taney, writing the opinion of the court, proclaimed that Dred Scott could not be recognized as a citizen of any state. With this ruling the court sent the message to abolitionists that there was no path to end slavery through the political system.
If President James Buchanan and the 35th Congress had stated that they had no intention of following a Supreme Court ruling that violated the very natural law of liberty that ungirded the entire U.S. Constitution, Congress would have felt added pressure to find a political solution, and the nation may have avoided the Civil War. This ruling allowed Congress to shift responsibility to the court and thus enshrined the deplorable continuation of slavery until more than 600,000 Americans lay dead.
Another example of the court setting back rights for African Americans was the Plessy v. Ferguson ruling in 1896. Even though the Fourteenth Amendment with its Equal Protection Clause had been ratified in 1868, the court found that the Louisiana law separating blacks from whites was constitutional. This ruling legitimized the Jim Crow laws of the South.
Instead of a president or a subsequent Congress repudiating this decision, the nation waited until Brown v. Board of Educationin 1954 for the court to correct their outrageous decision. If the president is sworn to uphold the Constitution, why would he use his power as the chief executive to enforce a court decision that clearly violates the Constitution?
The decision to take on the legitimacy of a federal court ruling should not be made lightly. There must be a clear violation in the decision that the president articulates. This criteria would be met with any of the recent court rulings limiting the president’s power to curtail immigration. Congress should also move to limit the court’s jurisdiction over matters that involve immigration policy, per the Constitution’s Article III Section 2. While this is redundant considering the courts have no jurisdiction in many of these cases, this would place the judiciary on notice that their violations of clear legal precedent will meet swift action.
Objections to Following the Constitution Don’t SquareThose who reject Hamilton’s view often state that ignoring Supreme Court rulings could lead to anarchy. Then the Left would ignore rulings they don’t agree with and the nation would head toward lawlessness.
We are already at a time where the Left doesn’t abide by federal law. The sanctuary cities all over the country are great evidence of the Left’s lack of respect of federal law. At this point the Left can and does undo any legislation in such ways, so lawless court rulings mute election victories for the Right. The electorate gave Donald Trump the presidency in part to deal with the illegal immigration problem, but unlawful decisions from federal courts have made his ability to institute his policies nearly impossible.
Those who reject defying unconstitutional court rulings do not have a valid solution.Daniel Horowitz argues the courts are “irremediably broken,” that there is no correcting this shift to the Left. Those who reject defying unconstitutional court rulings do not have a valid solution. Their first response is to call for nominating better judges. This answer is feeble at best, and a red herring at worst.
As law schools shift further and further to the Left, it is increasingly difficult to find judges that interpret the Constitution in accordance with its original intent. Nominating originalist judges has proven a difficult task for even the most conservative of presidents. President Ronald Reagan nominated Anthony Kennedy to the Supreme Court. Kennedy wrote the opinion creating a right to marriage for homosexual couples in Obergefell v. Hodges, a right which has no constitutional precedent.
Impeachment and constitutional amendments have proven to be futile. There is yet to be a successful example of an impeachment of a Supreme Court justice, and a constitutional amendment stripping the court’s power could be years, maybe even decades away. Every day the country is bombarded by erroneous federal court rulings that dismember the Constitution. Conservatives must rally around a response to these assaults of our political system or even when they win elections they will never be able to institute their agenda.
Stop Talking, and Start ActingIf America continues to allow the judiciary to act outside of its proper role in government, the country will continue to fall away from its constitutional foundation. Every summer Americans sit with bated breath, waiting to see what parts of the Constitution remain intact after that year’s Supreme Court decisions.
Conservatives write article after article detailing the damage done by these rulings. These commentators lament the state of the judiciary, and declare that we need better judges. Then nothing changes and the following year the scenario plays itself out again.
Hamilton has prescribed a solution that could begin tomorrow. The judicial branch must be held accountable for its rulings. The president and congress must force the judiciary to base their rulings in the Constitution.
Federal court rulings have authority only if they are grounded in the Constitution. The branch Hamilton called “beyond comparison the weakest of the three departments of power” must be forced to operate within its constitutional constraints, or the country will move closer toward being ruled by a judicial oligarchy.
Ryan Walters is a high school teacher in McAlester, Oklahoma. He teaches Advanced Placement courses in world history, U.S. history, and U.S. government. He can be reached by email at ryanwalters37@gmail.com or on Twitter @ryanmwalters.
Source; http://thefederalist.com/2018/03/01/presidents-legislatures-ignore-crazy-court-decisions-alexander-hamilton-thinks/
Reprinted with permission of author Ryan Walters
President Trump Should Ignore the DACA Ruling
By Ryan Walters
May 17, 2018
Before he enter on the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."
–U.S. Constitution, Article II, Section 1
This is the oath President Trump and every president of the United States took prior to becoming the chief executive. Every member of Congress swears to "support and defend the Constitution of the United States against all enemies, foreign and domestic." When a president or a legislature is directed to perform a duty that is unconstitutional, he or it must refuse or else he or it would, thereby, break this oath.
Due to recent unconstitutional actions taken by the judiciary, this scenario needs be examined as more than a theoretical exercise. A U.S. District Court in Washington, D.C. has ordered President Trump to continue President Obama's DACA (Deferred Action for Childhood Arrivals) program. According to the court, President Trump must not only keep the program in place, but also continue accepting new applicants. A federal court is now ordering the president to perform an executive order that even President Obama stated was illegal before later issuing it.
Does a district court have the power to order the chief executive of the United States to take an illegal executive action? Does President Trump simply abide by this order, thus violating his oath of office to defend the Constitution? Or does he have another option?
Court Immigration Case Abuses
While abuses by the court have been well documented, there has been a change in the tyranny unleashed by the courts in the past few years. As Daniel Horowitz lays out in Stolen Sovereignty. How to Stop Unelected Judges from Transforming America, the courts have now shifted their attack to America's national sovereignty. By overturning the Legislature's precedent of plenary power over immigration policy, the courts are prepared to take away the American people's ability to determine our immigration policy.
For two centuries, the courts viewed immigration policy as a political decision to be decided by elected representatives. The court unanimously held in the Chae Chan Ping v. United States (1889):
[T]hrough the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy[.] ... [Immigration matters are] not questions for judicial determination[.] ... [I]t must be made to the political department of our government, which is alone competent to act upon the subject.
Immigration policy is not for the judiciary to decide. Immigration policy is a political decision that rests solely in the political branches of government, the Legislative and Executive Branches. Later in Nishimura Ekiu v. United States (1892), the Supreme Court ruled (emphasis added):
It is not within the province of the judiciary to order that foreigners who have never been naturalized, national and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.
Later, Knauff v. Shaughnessy deemed that when an illegal alien stands before Executive Branch officials, that is his due process. He cannot turn around and use our federal court system to infer 5th and 6th Amendment due process rights. The courts have readily understood the plenary power doctrine and not granted standing to illegal aliens until Donald Trump became president.
President Trump's Response
President Trump should follow the explanation Abraham Lincoln gave in his fifth debate with Stephen Douglas. Lincoln described the Dred Scott case and Douglas's lack of inquiry into its judgment:
[H]e swells himself up and says, "All of us who stand by the decision of the Supreme Court are the friends of the Constitution; all you fellows that dare question it in any way, are the enemies of the Constitution." Now, in this very devoted adherence to this decision, in opposition to all the great political leaders whom he has recognized as leaders – in opposition to his former self and history, there is something very marked. And the manner in which he adheres to it – not as being right upon the merits, as he conceives (because he did not discuss that at all), but as being absolutely obligatory upon every one simply because of the source from whence it comes – as that which no man can gainsay, whatever it may be – this is another marked feature of his adherence to that decision. It marks it in this respect, that it commits him to the next decision, whenever it comes, as being as obligatory as this one, since he does not investigate it, and won't inquire whether this opinion is right or wrong.
Lincoln attacks this view of accepting a court decision based not on its merits, but its source. Previously, in their third debate, Lincoln even mentioned the oath of office taken by every legislature binding its members' actions in accordance with constitutional principles.
President Trump should use his position of chief executive to shine a light on the constitutional malfeasance being perpetrated by the judiciary. President Trump and Attorney General Jeff Sessions should explain their legal position and assert that the president must act in accordance with the Constitution in order to keep true to his oath of office. President Trump should then announce that he will not issue new DACA applications despite the D.C. court ruling. This stand by the president will deal a tremendous blow to the power of the Judicial Branch. Fighting back against judicial tyranny will provide Congress the momentum to pass legislation to rein in the courts.
President Trump should then meet with Republican leaders in the House and the Senate. He should ask the Senate to impeach all the federal judges who have issued rulings against his immigration policies, citing legal precedents. He should then ask both houses to pass legislation limiting the jurisdiction of the courts per the Constitution's Article III, Section 2. This legislation should be redundant, since the precedent clearly set by the courts was that immigration policy would not be determined by the judicial branch. However, this would clarify the matter so that even the most progressive judges could understand.
Regain Our Democratic Republic
We should have national debates on immigration policy. The public should speak through its representatives to determine policy, as it has throughout our nation's history. If the left wants drastic changes, leftists should go through the elected branches of government to implement those changes, not through unelected judges. Fundamental in our founding is the principle that political matters will be decided by representatives of the people. The checks and balances of our system of government have been damaged almost beyond recognition. Alexander Hamilton clearly stated that the Judicial Branch is the weakest of the three branches and therefore would not possess the ability to usurp power from the other branches. Now the Judicial Branch is the sole decider on constitutionality instead of all branches of government assuming that responsibility.
While a president ignoring a federal court ruling may seem like an extraordinary measure, we are living in extraordinary times. In the 1954 Galvan v. Press ruling, Justice Felix Frankfurter explained that the plenary power doctrine os "as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government." Now that the courts have corrupted one of the most accepted judicial principles, an extraordinary measure must be taken.
It is long overdue for America to have a national dialogue over solutions to the unconstitutional overreach of the courts. When Benjamin Franklin was asked after the Constitutional Convention what form of government the delegates had created, he responded, "A republic, if you can keep it." Are we willing to confront the courts in order to keep our republic intact?
Ryan Walters teaches A.P. History courses at McAlester High School in McAlester, Okla. He is a featured columnist at The Liberty Bell Online. He can be reached by email at ryanwalters37@gmail.com or on Twitter at @ryanmwalters.
Source; https://www.americanthinker.com/articles/2018/05/president_trump_should_ignore_the_daca_ruling.html
Reprinted with permission of author Ryan Walters
–U.S. Constitution, Article II, Section 1
This is the oath President Trump and every president of the United States took prior to becoming the chief executive. Every member of Congress swears to "support and defend the Constitution of the United States against all enemies, foreign and domestic." When a president or a legislature is directed to perform a duty that is unconstitutional, he or it must refuse or else he or it would, thereby, break this oath.
Due to recent unconstitutional actions taken by the judiciary, this scenario needs be examined as more than a theoretical exercise. A U.S. District Court in Washington, D.C. has ordered President Trump to continue President Obama's DACA (Deferred Action for Childhood Arrivals) program. According to the court, President Trump must not only keep the program in place, but also continue accepting new applicants. A federal court is now ordering the president to perform an executive order that even President Obama stated was illegal before later issuing it.
Does a district court have the power to order the chief executive of the United States to take an illegal executive action? Does President Trump simply abide by this order, thus violating his oath of office to defend the Constitution? Or does he have another option?
Court Immigration Case Abuses
While abuses by the court have been well documented, there has been a change in the tyranny unleashed by the courts in the past few years. As Daniel Horowitz lays out in Stolen Sovereignty. How to Stop Unelected Judges from Transforming America, the courts have now shifted their attack to America's national sovereignty. By overturning the Legislature's precedent of plenary power over immigration policy, the courts are prepared to take away the American people's ability to determine our immigration policy.
For two centuries, the courts viewed immigration policy as a political decision to be decided by elected representatives. The court unanimously held in the Chae Chan Ping v. United States (1889):
[T]hrough the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy[.] ... [Immigration matters are] not questions for judicial determination[.] ... [I]t must be made to the political department of our government, which is alone competent to act upon the subject.
Immigration policy is not for the judiciary to decide. Immigration policy is a political decision that rests solely in the political branches of government, the Legislative and Executive Branches. Later in Nishimura Ekiu v. United States (1892), the Supreme Court ruled (emphasis added):
It is not within the province of the judiciary to order that foreigners who have never been naturalized, national and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.
Later, Knauff v. Shaughnessy deemed that when an illegal alien stands before Executive Branch officials, that is his due process. He cannot turn around and use our federal court system to infer 5th and 6th Amendment due process rights. The courts have readily understood the plenary power doctrine and not granted standing to illegal aliens until Donald Trump became president.
President Trump's Response
President Trump should follow the explanation Abraham Lincoln gave in his fifth debate with Stephen Douglas. Lincoln described the Dred Scott case and Douglas's lack of inquiry into its judgment:
[H]e swells himself up and says, "All of us who stand by the decision of the Supreme Court are the friends of the Constitution; all you fellows that dare question it in any way, are the enemies of the Constitution." Now, in this very devoted adherence to this decision, in opposition to all the great political leaders whom he has recognized as leaders – in opposition to his former self and history, there is something very marked. And the manner in which he adheres to it – not as being right upon the merits, as he conceives (because he did not discuss that at all), but as being absolutely obligatory upon every one simply because of the source from whence it comes – as that which no man can gainsay, whatever it may be – this is another marked feature of his adherence to that decision. It marks it in this respect, that it commits him to the next decision, whenever it comes, as being as obligatory as this one, since he does not investigate it, and won't inquire whether this opinion is right or wrong.
Lincoln attacks this view of accepting a court decision based not on its merits, but its source. Previously, in their third debate, Lincoln even mentioned the oath of office taken by every legislature binding its members' actions in accordance with constitutional principles.
President Trump should use his position of chief executive to shine a light on the constitutional malfeasance being perpetrated by the judiciary. President Trump and Attorney General Jeff Sessions should explain their legal position and assert that the president must act in accordance with the Constitution in order to keep true to his oath of office. President Trump should then announce that he will not issue new DACA applications despite the D.C. court ruling. This stand by the president will deal a tremendous blow to the power of the Judicial Branch. Fighting back against judicial tyranny will provide Congress the momentum to pass legislation to rein in the courts.
President Trump should then meet with Republican leaders in the House and the Senate. He should ask the Senate to impeach all the federal judges who have issued rulings against his immigration policies, citing legal precedents. He should then ask both houses to pass legislation limiting the jurisdiction of the courts per the Constitution's Article III, Section 2. This legislation should be redundant, since the precedent clearly set by the courts was that immigration policy would not be determined by the judicial branch. However, this would clarify the matter so that even the most progressive judges could understand.
Regain Our Democratic Republic
We should have national debates on immigration policy. The public should speak through its representatives to determine policy, as it has throughout our nation's history. If the left wants drastic changes, leftists should go through the elected branches of government to implement those changes, not through unelected judges. Fundamental in our founding is the principle that political matters will be decided by representatives of the people. The checks and balances of our system of government have been damaged almost beyond recognition. Alexander Hamilton clearly stated that the Judicial Branch is the weakest of the three branches and therefore would not possess the ability to usurp power from the other branches. Now the Judicial Branch is the sole decider on constitutionality instead of all branches of government assuming that responsibility.
While a president ignoring a federal court ruling may seem like an extraordinary measure, we are living in extraordinary times. In the 1954 Galvan v. Press ruling, Justice Felix Frankfurter explained that the plenary power doctrine os "as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government." Now that the courts have corrupted one of the most accepted judicial principles, an extraordinary measure must be taken.
It is long overdue for America to have a national dialogue over solutions to the unconstitutional overreach of the courts. When Benjamin Franklin was asked after the Constitutional Convention what form of government the delegates had created, he responded, "A republic, if you can keep it." Are we willing to confront the courts in order to keep our republic intact?
Ryan Walters teaches A.P. History courses at McAlester High School in McAlester, Okla. He is a featured columnist at The Liberty Bell Online. He can be reached by email at ryanwalters37@gmail.com or on Twitter at @ryanmwalters.
Source; https://www.americanthinker.com/articles/2018/05/president_trump_should_ignore_the_daca_ruling.html
Reprinted with permission of author Ryan Walters