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.
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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.
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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.
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- Discussion
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Does Congress not realize it has the complete power to reign in rogue courts? https://t.co/9J0qQCm8Z7
— Daniel Horowitz (@RMConservative) February 13, 2017
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