Should a federal judge give a specifically curated speech to President Trump and then tell him to pull his pants down on live television, should he follow? If he refuses, will it cause a “constitutional crisis”? If you pay attention to the left, the answer may be “yes”!
The only “constitutional crisis” we face is the false idea that the judiciary is on top of the food chain, not on an equal footing with the other two branches of the government. If Trump wanted success this time, he was better reminded of the judiciary of his helplessness in enforcing an unconstitutional order.
Giving the courts the ultimate veto over public policy creates judicial hegemony that the founder never intended.
Federal judges have repeatedly tried to limit Trump's presidential authorities with excessive demands. They ordered the administration to fund private foreign aid organizations, revive it on certain personnel, and release the designated information on the government's website. In one case, the judge directed the Secretary of Defense to withdraw the Pentagon's policy statement on transgender forces. And over the weekend, US District Judge James Boasburg He tried to block deportation of violent gang members under the alien enemy law.
What's next? Do they order Trump to stop Hamas' threats, or remove the bust of Andrew Jackson from his oval office?
The judge forgets who they are. It's not a legislative sword that can impose policies, but an unselected shield against the government. Perhaps Trump needs to look at the bust of “old hickory” Andrew Jackson in his oval office and remember his (probably foreigner) reaction to Chief John Marshall's decision Worcester vs Georgia: “John Marshall made his decision. Now let him force it!”
The judges aren't like that
Imagine the president has imposed the same restrictions on the judiciary that federal judges are putting on Trump. What happens if he instructs that the judge has controlled how their websites and which store clerks can hire, or that they have ordered them to control in a certain way? It's obvious that it's going too far.
Unlike judges, Congress has the power to regulate all aspects of judicial procedures, employment, budgets and conduct. However, judges cannot impose similar policies on other departments. This is a fact that frustrates the supreme judicialists. This limitation is for a reason. No federal judges have been elected. If they were intended to exercise the best or equal power than public policy, they would be eligible for reelection, as would most state judges.
If there are clear limitations on jurisdiction, what is the actual role that differs from the enforcement and legislative departments?
In a letter to William Torrance Thomas Jefferson dated June 11, 1815, explained who would decide the constitutional question.
Certainly there are no words given to the Constitution. [judges] that power [authority to decide on the constitutionality of a law] More than an executive branch or legislative branch. The matters of property, character, and crime belong to them, of course, through clear courses of legal proceedings, through laws that include such questions. And when they ultimately decide them without appealing, they, of course, decide the constitutional validity of the law, for itself.
Bankruptcy cases and criminal charges show the appropriate scope of the judicial authorities. A judge can uphold or overturn a criminal conviction and resolve disputes over property and bankruptcy. However, in the event of a dispute against the law or the constitution involving other branches, the judiciary was not intended to have final say.
Giving the courts the ultimate veto over public policy creates judicial hegemony that the founder never intended. Each branch has an obligation to interpret and apply the law within its own constitutional authority. Jefferson repeated this principle in the same letter.
To prescribe enforcement action again and ultimately be administered by that branch without appeal, the executive must make a decision for himself, whether it is valid under the Constitution or not. Therefore, in regard to the law governing the minutes of the parliament, the institution must determine the constitutionality of the law for itself, and not without appeal or control from its coordinate branch. And that branch, which is generally to act ultimately and without appeal, is a legitimate expounder of the validity of the law and is not controlled by the opinions of other coordinate authorities.
Treating the court as the ultimate authority on public policy gives us more authority than rejecting James Madison's Revision Committee's proposal in the Constitutional Convention. Under Madison's “Virginia Plan,” Congress would have been a dominant, unicameral organization with the ability to reject state law. To curb that, he proposed that the President and the Supreme Court jointly review the law before it was enacted, giving the judiciary a role in refusing to legislation. But even in that system, the judiciary would not have acted alone – it would have shared power with elected executives.
The system that you ultimately adopt will work differently. The two legislative rooms are checked against each other, and the president holds a veto. Should we now believe that the Supreme Court, or even one district judge, have more power than the elected House, Senate, President, or state government combined? Should an unelected judge exercise a stronger veto than intentionally withheld from the entire elected parliament?
There is no such judicial veto.
Resolution of disputes between branches
What happens when government branches oppose and use force in contradictory ways? Is that a constitutional crisis? Jefferson also offers wisdom.
In such cases, it may be said that conflicting decisions can arise and lead to inconvenience. This is possible and is a necessary failure in all human cases. However, the prudence of public functions and the authority of public opinion generally creates accommodation.
Ultimately, the public decides who is right. Our system is not perfect, but it is far better than allowing unelected judges to impose people on what hundreds of elected lawmakers could not.
