With the courts setting immigration policy, national security policy, election law, social policy, redistricting policy, and criminal justice policy, we no longer live in a republic. The lower courts, not just the Supreme Court, stand above the other branches of government and the 50 states.
But how did this happen? How can the other branches, which have more robust powers, get rolled by courts created by Congress?
In this episode of “The Conservative Conscience,” we explore the recent immigration rulings and some other cases to demonstrate how the judicial crisis stems from a political crisis whereby the other branches of government are needlessly giving in to the courts. In fact, as it relates to the Fourth Circuit opinion on Trump’s executive order, the administration is giving the courts even more than they demand. At some point, can we really blame the courts for grabbing power that is handed to them on a silver platter by the other branches of government?
We explore some simple solutions laid out in Stolen Sovereignty, if only there were the political will to enact them.
“It is not probable that the Supreme Court would long be indulged in a career of usurpation opposed to the decided opinions & policy of the Legislature. Nor do I think that Congress, even seconded by the Judicial Power, can, without some change in the character of the nation, succeed in durable violations of the rights & authorities of the States.” —James Madison to Spencer Roane, 6 May, 1821
“It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.” —Alexander Hamilton, Federalist #81.
- A summary of congressional power over the courts
- The Fourth Circuit’s opinion is the most radical and dangerous ever
- Why Trump has a responsibility to ignore the courts
- What can be done about immigration and the courts
- Mnuchin wants debt ceiling raised unconditionally
Daniel Horowitz is a Senior Editor at Conservative Review, a Conservative writer, and a policy analyst focusing on the hot-button issues in Congress. He is the author of the new book, Stolen Sovereignty: How to Stop Unelected Judges from Transforming America.
Follow Daniel on Twitter: @RMConservative