One of the reasons I was not persuaded to vote for Donald Trump in the general election of 2016 was because I was not convinced the issues of judges was enough to overcome the Donald’s other deficiencies. First of all, I did not trust him to actually appoint constitutionalist (or originalist or whatever adjective we’re using these days) judges. On this, I was profoundly wrong. President Trump’s record thus far has been exceptionally strong. That he has almost totally ceded this aspect to the Federalist Society is a point in his favor.
But there was a more fundamental issue, and this has not been addressed. I argued then that even more appointments of constitutionalists to the bench would not solve the larger issue of judicial supremacism. Even if President Trump hits on 100% of his judicial appointments over four or even eight years, not only will he not have replaced all the terrible Clinton and Obama (and even some Bush I and II) appointments, he would leave unaddressed the basic question of the role of the judiciary in our constitutional republic.
And so we get decisions like this. Or even worse, this.
I’ll focus on the latter, because while the Oregon ruling was execrable on the constitutional merits, the latter is a grimmer reflection of the imbalance between the branches of government. Josh Blackman’s analysis at the link I provided thoroughly dismantles the legal reasoning of Judge Aslup. Thomas H Crown’s brutal twitter thread also highlights the issues with this ruling. In the end, the judiciary unreasonably meddled in executive branch affairs.
As Crown’s twitter thread shows, the issue is not just with the judiciary. The other branches of government have carelessly ceded power, or have been ineffectual agents in reclaiming lost authority. As Crown puts it in one tweet, “The problem with our system of government right now is diffuse responsibility and a categorical unwillingness by the legitimately-enumerated-and-responsible actors to retake their power and responsibility.” Expressly put, “The judiciary has absolutely no power to order the Executive to retain a program the Executive created ex nihilo and contrary to the express terms of a lawfully-enacted, Constitutional statute.”
As Crown puts it, the legislature should feel doubly aggrieved: by an executive (Obama) who unlawfully grabbed power, and now by a judiciary stepping in to exceed the executive branch’s decision-making capabilities. And as Crown correctly says, “The system is now designed to funnel power to the only unelected — and therefore least-inclined to republican responsibility — branch, then the second-least responsible, and leave the most electorally-responsible one the one with the least power.”
Unfortunately, there’s no easy solution to this mess. It has been a slowly evolving (or, really, devolving) process that began over a century ago. It would take a cultural shift to restore the equitable balance of power.
Some have suggested stripping courts of their judicial review authority in certain defined cases. This is a potential solution, but as always, it’s not necessarily a perfect one. An independent judiciary is a necessary force, and we cannot simply trust the executive and legislative branches to act within their prescribed constitutional parameters. Impeachment is another possibility, but it’s one few Americans have a stomach for. The reality is, any attempt to rein in the judiciary could have unintended consequences, and would be just as disastrous from a constitutional point of view. After all, the Supreme Court regularly intervened during the Obama administration when it attempted to exceed its constitutional authority, and those were justified and rational interventions. Had the Court not been there to act as a break, who knows what else the administration would have attempted.
As I said, there’s no easy fix. But for a nation that is always carrying on some kind of conversation or another, this seems to be a conversation actually worth having.
The Cranky Conservative 