The Supreme Court is out of control

With one exception, the Supreme Court causes supreme problems when it oversteps its bounds, as it has done regularly since Trump's election.  It did this most recently when it held that, although President Obama illegally instituted his DACA program, President Trump must jump through a series of arbitrary administrative hoops to walk it back.  Daniel Horowitz says that there is a way to end the Court's unconstitutional power grab.

Going back as far as 1857, with one exception, the Court's major public policy decisions have been constitutionally invalid and had disastrous outcomes.  Dred Scott denied African-Americans citizenship, Plessy v. Ferguson enshrined segregation, Korematsu v. the United States erased the rights of Americans of Japanese descent, and Roe v. Wade created an imaginary constitutional right to abortion that created a 47-year-long schism in America that perverts every presidential election.  Each time, the Court waded into areas that are the preserve of the states and Congress, making up rights as it went along.

Only once did the Supreme Court improperly insert itself into a public policy issue and get away with it.  That was 1954's Brown v. Board of Education, a morally but not legally correct decision.  Its virtue lay in how it focused America's attention on the virulent racial hatred emanating from what many Americans then considered a backwater region.  Footage of young blacks having to go to school under armed guard while running a gauntlet of screaming white citizens shocked the nation's conscience and gave a national impetus to the Civil Rights movement.

Buoyed by its moral success and practical effectiveness in Brown, the Supreme Court has been on a roll since then.  Leftists are activists by nature, but even the conservatives cannot resist the heady power of being unelected, life-term legislators.

Daniel Horowitz writes that the Executive Branch has recourse against an out-of-control Judiciary.  His argument is compelling because he denies the premise that the Court's actions have any legitimacy:

"So Trump should defy the court, right?" I've been asked.

No. The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts "must ultimately depend upon the aid of the executive arm for the efficacy of its judgments." Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it's following the law being defied by the judiciary.

The Supreme Court may protect an individual's rights because, even if it errs, we prefer it to err on the side of the individual against the government.  The DACA decision (like many recent decisions) is different:

In this case, the court is jumping two steps by demanding Trump not only refrain from deporting illegal aliens, but affirmatively use the tools of government to grant resident documents to people whom our law explicitly prohibits from having them.

The effect of this two-step jump, says Horowitz, is profound and unconstitutional: 

[T]he court has no power to demand the executive branch take action contrary to law and certainly no way to enforce it. The same way a court can set aside a policy or law it feels it is unconstitutional for its purposes of a ruling in a single case, the executive branch has the same obligation to set aside capricious court rulings when they violate the Constitution and intersect with its more robust powers.

Once Horowitz establishes that the Court is acting unconstitutionally (and he offers an in-depth historical analysis to support this conclusion), he offers a workable solution:

It's not like the courts created a fundamental right for illegal aliens to obtain Obama's amnesty. At least not yet. They created a convoluted argument that Trump has to issue a more robust decision-making process with justification for the policy that passes muster with the courts. Trump should go back and issue the ruling again, but this time publicly draw a line in the sand and call his shot. He should have Attorney General Barr cite chapter and verse of statute and the Constitution and pledge to uphold the law no matter what and state that he will not even send down DOJ lawyers to court to indulge this nonsense. Presidents of both parties regularly assert separation of powers when ignoring congressional subpoenas. The courts are certainly not more powerful than Congress.

The same tactic should have been used with the census. A census is not written by the judiciary; it's written by the Department of Commerce. The administration has every right to place a citizenship question on the form, and even Roberts in his insane opinion from last year agreed that it would be following the law. If individuals don't want to fill it out and are subject to federal prosecution, then the courts could always decline to convict them. That is how separation of powers and decompartmentalism work.

The president has no choice. This is not just about amnesty. This is about everything he has done during his presidency. Whether it's numerous other immigration policies, the census, or environmental and energy regulations, the courts are mandating a continuation of Obama's presidency. They are saying that Trump cannot get rid of anything Obama did unilaterally.

Unless Trump acts to rein in the Supreme Court's unconstitutional power grabs, the Court will have relied on the goodwill engendered by Brown to become the most powerful — and completely unaccountable — branch of American government.

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