The American Founders feared the consolidation of power in the hands of the few, the many and, in particular, those appointed with the power to decide whether a law or action violates the Constitution — the federal judiciary. A growing body of federal court decisions demonstrates how the fears were well-founded — and why the other branches of government should do something about it.
Recent court decisions curtailing the plain authority of the president, particularly the Trump administration’s temporary travel ban and the president’s authority to enforce existing federal law regarding immigration enforcement and so-called “sanctuary cities,” are case studies in judicial overreach — what the Founders described as “judicial despotism.”
Jefferson wrote to Abigail Adams in 1804, “Nothing in the Constitution has given them [federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
Fast forward to the well-documented travel ban injunctions issued by federal judges in the Ninth and Fourth Circuits, which were partially lifted by the U.S. Supreme Court in June. While the high court will hear full arguments this Fall, the pushback in lifting the injunction was clear — federal judges are not empowered to treat the Constitution as a “mere thing of wax . . . which they may twist and shape into any form they please,” as Jefferson wrote in 1819.
In April, Ninth Circuit federal judge William Orrick (the same Obama-appointed judge who issued an injunction against the temporary travel ban) blocked enforcement of President Trump’s Executive Order limiting access to federal funds by local jurisdictions (read, “sanctuary cities”) that violate 8 U.S.C. § 1373. The law prohibits local jurisdictions from preventing law enforcement officials from communicating with federal immigration authorities about the citizenship status of those who have been arrested or detained, and this provision was upheld by the U.S. Supreme Court in 2012.
Heritage Foundation legal scholar Hans Von Spakovsky offered this poignant assessment: “Section 1373 doesn’t force local law enforcement officials to notify federal officials when they detain an illegal alien; it simply says that local governments can’t ban law enforcement officials from doing so.” In cities across America, local policies are doing just that.
In a move that further clarifies the administration’s vigorous immigration enforcement efforts, Attorney General Jeff Sessions announced in late July that important discretionary funds may be cut off from cities (and states) that actively prevent their law enforcement from communicating with federal immigration authorities.
As Von Spakovsky points out, this action fulfills what Justice Department Inspector General Michael Horowitz raised in 2016 regarding Obama administration policy — in order to receive discretionary federal funds, local authorities must certify that they are in complete compliance with federal immigration enforcement law, specifically § 1373. If they can’t do so, or say they are in compliance when they aren’t, local jurisdictions may lose funding. Pretty straightforward.
Nevertheless, well-known sanctuary cities and their allies are lining up to bring federal court challenges against this new measure, too.
It doesn’t take an Attorney General to recognize that these cases will show up in the same federal court circuits, and likely in front of the same batch of federal judges, that have consistently enjoined the current administration from exercising what the Supreme Court said, in the case of the temporary travel ban, was judicial overreach: “And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now — unanimously — found sufficiently questionable to be stayed . . ..”
The reason that cases challenging Executive authority and, indeed, all new measures brought forth by the current Administration and Congress will be brought in certain venues is that a core of federal judges have made it clear they are willing to push interpreting law into making public policy, a job reserved for the legislative and executive branches.
One of the primary dangers in this practice is that of the 35,000 cases brought to the federal appeals courts each year, only 1 in 10,000 cases will ever be heard by the Supreme Court. In other words, the federal appeals courts — like the Ninth and Fourth Circuits — are the courts of last resort and final, binding decision in 99.7 percent of the cases. Congress has the authority to limit court jurisdiction and scope, and it should do so.
Until that happens, we can expect a continuing flow of poorly reasoned, politically calculated decisions on profoundly important issues like sanctuary cities and enforcement of existing immigration law from various quarters in the federal judiciary. As James Madison, the Father of the Constitution, said, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general. To read more of his reports — Go Here Now.
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