Reining in a hysterical judiciary
On Feb. 9, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit issued a ruling upholding the temporary restraining order against enforcement of President Trump’s Executive Order 13769. Ignoring Supreme Court precedent and constitutional first principles, the court found that the two states suing the Trump administration had standing. Then, ignoring more precedent and constitutional text, the court found that aliens attempting entry into the U.S. have extensive protections under the Due Process Clause. To top it off, the court found the perfunctory allegations of religious discrimination in the executive order “raised serious constitutional questions,” and further, that the administration did not meet the court’s test for a showing of likelihood of success once the case was fully briefed and argued.
Clearly, these judges have bought into the hysteria that the executive order is a “Muslim ban.” Any person with a fourth-grade reading ability can tell you that nowhere in the executive order are the words “Muslim” or “Islam,” or even “Christian” or “Yazidi” ever written. Nevertheless, like most judicial liberals, the judges on the 9th Circuit (or Circus, depending on your point of view) had no qualms about peering into the minds of elected officials and (surprise) finding evidence of a religiously discriminatory purpose “beyond the face of the challenged law.”
Chief Justice John Marshall was one of the pre-eminent jurists in our country’s history, and he stated in Marbury v. Madison that “it is emphatically the province of the judiciary to say what the law is.” What happens though, when judges stop saying what the law is, and start engaging in politics? Alexander Hamilton wrote in Federalist No. 78 that the judiciary would be the “least dangerous” branch of the federal government. What happens when it endangers national security? I understand that the American people are divided right now when it comes to politics. I would have hoped that the judiciary wouldn’t fall sway to those same impulses, but that fear appears to have been realized.
So I ask myself, as a member of the branch of government that makes the laws, what recourse do we have to provide our own check and balance on the overreach of the other branches, whether it is the executive or the judiciary? In particular, I would ask my constituents and the American people: Is there to be no check on the judiciary at all? Certainly we don’t think that is right, and indeed, the Constitution provides for a variety of checks on the judicial branch for circumstances like these. Congress can change the composition of the courts, it can withhold funds from the judicial branch, or it can impeach the judges themselves.
This is not as simple as a matter of complete political discretion; it is a fundamental component of the separation of powers structure that our Constitution commands. If I am a police officer at an intersection, and you run a red light, it is my legal duty to hand you a traffic ticket. I may not particularly want to give you a ticket, nor would I feel personal satisfaction in doing so, but rather as a public safety officer, I am bound by my oath to enforce the laws. The same goes for Congress. Congress may not want to hold the judiciary accountable, it may not make members of Congress feel personal satisfaction to do so, nor may it be politically savvy. And yet, Congress must act. So I ask, what would you have us do to maintain the Constitution’s checks and balances? Right now, we are faced with a judiciary that is endangering our country’s national security, and Congress cannot sit idly by and wait for the matter to be resolved by the Supreme Court. Frankly, it’s not their job — it is the job of the political branches. We are in a moment of truth in our constitutional order, so we must answer these questions soon.
• Ted Yoho is a Republican member of the U.S. House of Representatives from Florida.