Doesn’t Congress realize it has power to rein in rogue courts?

It became quite apparent after the Supreme Court redefined the building block of all civilization in Obergefell and lower courts began redefining sexuality itself, that nothing the courts do would serve as an inflection point — a moment of catharsis — for the Republican legal establishment. They suffer from the Stockholm Syndrome, seeking the love and approval of the judicial supremacists even as they intellectually decry the runaway courts. Now that the courts have unilaterally redefined our national sovereignty and have essentially mandated that we bring in an unlimited number of Islamist refugees, there is still no inspiration to act among the “right-leaning” legal elites.

Conservatives would pine to return to the ‘90s-era jurisprudence, predating the redefinition of marriage and the abrogation of our national sovereignty. Yet, even as far back as 1996, Robert Bork warned that the federal judiciary was already broken beyond repair:

Over twenty years later, with courts annulling settled law of national sovereignty during a dangerous era of Islamic terrorism, conservatives are still making excuses for the courts. Some conservative legal institutionalists are calling on Trump to rewrite the executive order in order to pass muster with the holy courts, not understanding that the courts have already overlooked five statutes and settled case law in its unprecedented abuse of power. It is quite evident that the federal judiciary will never be made “minimally acceptable by logical persuasion or the appointment of more responsible judges.” It must be reformed wholesale.

So what can Congress do?

It starts by actually getting on the playing field and reclaiming the co-equal power of constitutional interpretation that it always held until the mid-twentieth century, as explained by a recent CRS report. It starts by not having Senators like James Lankford, R-Okla. (C, 71%) publicly legitimize the courts as the sole and final arbiter of constitutionality, especially when their rulings explicitly violate the most foundational parts of the Constitution, as well as our laws, history and traditions. It also starts by not having senators like Jeff Flake, R-Ariz. (F, 50%) raise the specter of judicial supremacy by saying that judges, unlike members of the other branches, are beyond reproach.

Congress’ absolute power over the jurisdiction of the courts

Once Republican members of the legislative branch of government finally recognize the awesome nature of their power relative to that of the judiciary, they can finally appreciate that, as Madison said, “in republican government, the legislative authority necessarily predominates.”

It is quite shocking how many people involved in politics, including elected conservative politicians, have no clue about the history of the judiciary, the drafting of Article III, and the crafting of the Judiciary Act of 1789. They are unaware of the fact that judicial review was never supposed to morph into judicial supremacy and that to the extent the courts have illegally seized such power, there is a complete remedy that can be used by Congress to restore the proper balance of power. And unlike the judicial concoction of Fourteenth Amendment “rights” to abortion on demand, 20 days of early voting, transgender bathrooms, and endless immigration, this power is actually written in the most express and plenary terms.

Aside from a few spheres of original jurisdiction granted to the Supreme Court, the rest of the Supreme Court’s purview is “appellate jurisdiction” from cases they receive on appeals from the congressionally-created lower federal courts or from state courts. Article III, Section 2, Clause 2 of the Constitution explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court:

These are not merely throwaway or vacuous words. This entire clause of the Constitution was deliberately crafted to assuage any concerns about an overbearing judiciary that would not stand for election. During the Virginia Ratifying Convention in 1788, John Marshall — yes that John Marshall of judicial review fame — reassured a skeptical George Mason that the exceptions clause was indeed robust.

“These exceptions certainly go as far as the Legislature may think proper, for the interest and liberty of the people.” As I observed in chapter nine of Stolen Sovereignty, “if the definition of marriage, religious liberty, and sovereignty are not “for the interest and liberty of the people” to have that power vested in the elected branch of government, it is difficult to conceive what exactly would qualify as legitimately within the power of Congress.”

Immigration should be the first issue removed from the Article III courts because they never had jurisdiction over it in the first place. Noting the existence of an uninterrupted stream of settled case law, the court ruled in Shaughnessy v. Mezei that “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government [related to exclusion of non-citizens at a point of entry].” As Scalia made clear in the 2001 Zadvydas case, Mezei is still settled law. Yet, the courts, with a flick of the wrist have turned it on its head. It’s time for Congress to take the political game out of the courts.

The “Exceptions Clause” of Art. III Sec. 2 is often referred to as “jurisdiction stripping.” But that term doesn’t fully capture the enormous power this clause grants to Congress. The default is not that the federal judiciary has all the power to adjudicate any case unless Congress actively “strips” them of this authority. Quite the contrary, they only have the power that Congress affirmatively grants them. There can be no greater authority on this matter than Chief Justice Oliver Ellsworth, who served as the first Senate Judiciary Committee chairman and is often called “the father of the national judiciary.” Writing an opinion in a 1796 case, Ellsworth authoritatively asserted that “[I]f Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” [1]

Indeed, the fact that the Constitution granted the court jurisdiction only over the subject matter vested in it by the Congress is a clear indication that the judiciary was never meant to be the sole and final arbiter of constitutionality. This point can also be gleaned from the fact that courts may only give their opinion on the constitutionality of a statute in “cases and controversies properly before them,” [2] which was manifestly violated in this case in the Ninth Circuit.

The lower courts are nothing without Congress

Given that Congress has ceded so much ground to the courts over the years and given that the Supreme Court is accorded God-like status in this country, I’d advise members of Congress to begin with a more modest approach of stripping the lower courts of jurisdiction over immigration (and eventually other political issues that should be decided by Congress or state legislatures).

Let’s be clear: The lower federal courts don’t have to exist. Unlike the Supreme Court, whose appellate jurisdiction is granted by Congress, the entire structure of the lower courts is controlled by the legislative branch. If Congress wanted to abolish the lower courts overnight and reroute any litigation into state courts or make plaintiffs directly appeal to the Supreme Court (or any other newly-created panel), they have that authority.

Our elected representatives in Congress just need to open their eyes.

In 1812, the Supreme Court ruled that the lower courts “possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer.” In Sheldon v. Sill (1850), the Supreme Court ruled that “Congress, having the power to establish the courts, must define their respective jurisdictions.” Justice Robert Grier, writing for a unanimous Court, left no ambiguity that “courts created by statute can have no jurisdiction but such as the statute confers.”

In addition to reclaiming some of their political jurisdiction, Congress can begin punishing wayward circuits, such as the Ninth Circuit, by minimizing its geographical jurisdiction or clipping its wings to issue nation-wide injunctions or have their rulings be used as precedent. Unless Congress uses one of these tools, a liberal district judge in any part of the country can put a nationwide injunction on the most lawful common sense action of Congress or the president, even if it is upheld in other districts.

The advantage of limiting the jurisdiction of the lower courts on immigration is obvious. At present, the ACLU has the ability to encumber every single deportation or any action protecting American sovereignty in court and soliciting a nationwide injunction from any number of extreme district judges. By removing the lower courts from the process, liberals would have to convince the Supreme Court, which has a limited case load, to accept their cases. While they might win a few victories with the high court, there is a limit to how much damage they can do, given their lack of resources.

As Mark Levin wrote in his forward to my book, echoing his push for an Article V Convention of the States, “the remedies to most of our problems we face in this era of constitutional crisis lie in the Constitution itself.” The same is true for Article III Sec. 2. As the great Alexis de Tocqueville observed, “[T]he greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.” Our elected representatives in Congress just need to open their eyes.

Editor's note: This article has been updated to correct a typographical error in the headline.

[1] Justice Marshall of all people made it clear that Congress was exercising its “exceptions and regulations” power in 1789 to limit the scope of the court’s jurisdiction. Durousseau v. United States, 10 US 6 Cranch 307, 314 (1810): “When the first legislature of the union proceeded to carry the third article of the Constitution into effect, it must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court. It has not, indeed, made these exceptions in express terms. It has not declared that the appellate power of the Court shall not extend to certain cases, but it has described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.” In 1893, the Court observed that “[I]t has been held in an uninterrupted series of decisions that this court exercises appellate jurisdiction only in accordance with the acts of Congress upon that subject.” [Colorado Cent. Consol. Mining Co. v. Turck, 150 US 138, 141 (1893).”

[2] United States v. Raines, 362 U. S. 17, 20–21 (1960).