Challenging The Courts Is Constitutional - And That's What Trump Needs To Do After Immigration Ruling


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Getty - Saul Loeb
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The recent ruling of the 9th Circuit Court maintaining the suspension of the president's immigration order was sadly predictable. Yet, such a decision is advantageous for our nation.

How so? Certainly it's not advantageous in the short run with respect to national security, but it is advantageous in the long run with respect to correcting the courts' continual abuse of power.

Just prior to the election last November, I wrote an article titled, “If Donald Trump Is Serious About Change, He Will Stand Up To Our Court System.” I predicted that “Americans need to muster the courage to say “No” to the U.S. court system on matters of public trust and responsibility.” Well... here we go.

The matter of immigration from countries with a high concentration of terrorist activity is a matter of public trust and responsibility. Thus, Trump is right to publicly challenge the liberal courts and call them out for their hypocrisy in two areas: 1) we are a nation of laws, and 2) the judicial branch alone interprets the Constitution and therefore can not be placed in check by the other two branches.

First, the notion that we are a nation of laws must be explained. If it is used to argue that Americans always obey laws, then that is a complete sham. We are a nation founded by a revolution precisely because we refused to obey laws that were unjust and abusive.

If the notion is used to argue that everyone should subject themselves to the laws, even if they don't agree with them, then that's a liberal ploy. It's important to note that liberals do not obey laws that they feel are unjust. Take, for instance, how former Attorney General Eric Holder told state Attorneys General to disregard state constitutions with respect to marriage amendments, and, more recently, Roy Cooper, refusing to uphold North Carolina's HB2.

We are not a nation of laws; we are a nation with a Constitution that governs us, to include governing our laws. Thus, when the courts are in violation of the Constitution, their opinions should be rejected. Liberals understand that, which is why they're not a people of laws. It's high time conservatives start being a people of the Constitution and not a people of “laws.”

Furthermore, one of the great misunderstandings about our government is that the judicial branch is the only branch responsible for interpreting the Constitution. Wrong! We have three EQUAL branches of government, and all three branches are responsible for interpreting the Constitution. No doubt, our branches of government have nuanced responsibilities, but all three must continually weigh the actions of the other two in light of the Constitution.

For all practical purposes, the legislative and executive branches don't believe they have the right to say “no” to the judicial branch. Think about that for a moment; the unwillingness of the legislative and executive branches to reject an unconstitutional ruling of the U.S. court system effectively destroys the check and balance system. In his first inaugural address delivered on March 4, 1861, President Lincoln addressed both the importance of obeying the courts and the danger of surrendering our government and lives over to them.

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit. And while it is obviously possible that such decisions may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

When the courts dictate issues of marriage for every state in the union, then we have an eminent tribunal. When the courts think they can abuse the sensitivities of the people by redefining gender, then we have an eminent tribunal. When the courts arrogantly stop the President on matters of national security, then we have an eminent tribunal. If the courts keep acting like an eminent tribunal, then, in the words of the late Justice Scalia, they will “move one step closer to being reminded of [their] impotence.” Is that anarchy? No, that's a constitutional form of government that holds the courts in check.

When or how will the courts be held in check? Answer: when some leader (like President Trump) or some community (like Rienzi, Mississippi) has the courage and strength to tell the courts that they will reject their rulings and do what is right from a constitutional perspective. Of course, in the case of Rienzi the issue has not yet gone to court.

So then, how will the courts be held in check? Answer: through the American people holding judges responsible for their decisions. Isn't it ironic that judges hold the rest of society accountable for their decisions, but they refuse to be held accountable for their judicial decisions. Why do we hold common folk accountable for their decisions, but we refuse to hold the “best” and “most intelligent” decisions makers accountable for their decisions?

That said, the three judges that suspended the immigration order should be held accountable for any Americans that are killed by a terrorist that entered the country from one of the seven nations listed in the order. If that happens, then those judges should be arrested and held accountable for the blood on their hands. Take away their judicial immunity and they'll think twice before acting with juvenile impunity.

As I said back in November, “Americans need to muster the courage to say “No” to the U.S. court system on matters of public trust and responsibility.” Trump should go ahead and re-issue the immigration order to remind the courts of their impotence.