Reining in the Activist Federal Judiciary

How we can roll back the progressive assaults on our political liberty.

Bruce Thornton is a Shillman Journalism Fellow at the David Horowitz Freedom Center.

Vice President Pence announced recently that the Trump administration is finally pushing back against activist judges in Federal District Courts who issue nationwide injunctions against lawful executive policies on issues like immigration. This blatant usurpation of the executive branch’s powers has been another weapon in the progressives’ attack on the Constitution and its divided powers, which was primarily designed to protect the freedom and rights of citizens and their elected representatives who must answer to the people.

Reining in unelected, unaccountable district court judges is long overdue and necessary for restoring our right to hold accountable those who make decisions affecting our lives.

The federal judiciary has from our country’s beginnings been an object of suspicion for those Americans concerned with the tendency of power to encroach on the freedom and rights of the other branches of government. The first Democrat president, Thomas Jefferson, feared the Supreme Court’s usurpation of the powers of Congress and the President. In a letter to Abigail Adams he wrote in 1804,

Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them . . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

The first populist Democrat and frontier president, Andrew Jackson, likewise distrusted the potential for judicial encroachment on the will of the people and the executive branch. In 1832 his veto of legislation renewing the charter for the Bank of the United States despite its imprimatur from the Supreme Court, Jackson said,

Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. . . .  The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities.

And the first Republican president Abraham Lincoln, shared the same apprehension of judicial power in his 1861 inaugural address:

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.

The fundamental principle of these statements, which reflect the gamut of American political philosophy, is the safeguarding of the people’s political freedom, which expresses itself by holding accountable the federal government’s officials through regularly scheduled elections. Moreover, given the permanent tendency of a flawed human nature to aggrandize and expand power in order to serve factional or personal interests, the government’s powers must be divided among the three branches. And those branches’ powers must be confined within their constitutional limits and balanced one against the other, each checking the other’s inevitable attempts to expand its own power.

The progressive movement rejected this philosophy. A growing, industrializing, technologically advanced civilization, they argued, needed a centralized power to better manage conditions and problems the Founders never imagined. But this claim rested on one more dubious: that a technocratic elite, armed with new knowledge about human nature and thus empowered to improve we the people, needed a concentrated and expanded power to accomplish this improvement.  

Progressive journalist Walter Lippman in 1914 expressed this rejection of the Founders’ philosophy: “We have to deal with [life] deliberately, devise its social organization, alter its tools, formulate its methods, educate and control it. . . . We break up routines, make decisions, choose our ends, select means.” And this technocratic ideal is possible because “The great triumph of modern psychology is growing its capacity for penetrating to the desires that govern our thought.”

This history reminds us that the central aim of our Founding was the protection of the people’s political freedom and self-rule; and that the aim of progressives has been to replace that purpose with a utopian vision to be made real by a technocratic elite aggrandizing its power and weakening that of the people and its elected representatives. This goal has, of course, been realized over time through an expanding executive branch and its unelected, unaccountable agency and department functionaries. But the expansion of the federal judiciary happened through the creation of the Judiciary Act of 1891, which established the U.S. Courts of Appeal. This expansion increased the number of cases that could be appealed to the Supreme Court, thus enlarging its reach and increasing the opportunities for politicizing the courts.

So much has been obvious from the sorry record of the Supreme Court in legislating from the bench on issues like abortion and same-sex marriage that cannot by “the acquiescence of the people and the States . . . be considered as well settled,” as Andrew Jackson said. But since Trump has been elected, we are seeing the same hubristic ambitions being realized by national injunctions in the Federal District Courts, the preliminary to being heard by the Courts of Appeal and eventually the Supreme Court.

As the Heritage Foundation reports, national injunctions didn’t appear until 1963, and accelerated in the Eighties: “Even then, the average annual number of nationwide injunctions against the administrations of Ronald Reagan, Bill Clinton, and George W. Bush was 1.5. That increased to 2.5 under Barack Obama.” In just two years, 30 have been issued against Trump’s administration.

The abuse of the Constitution by this “legally and historically dubious” practice, as Supreme Court Justice Clarence Thomas describes it, has been long apparent. Some injunctions reaching the Supreme Courts, such as the one against Trump’s amended policy of “extreme vetting” of immigrants, have been overturned. But others are upheld, and some never reach the Court. In a 2016 case Justice Alito Samuel Alito put his finger on the dangers of national injunctions. During oral arguments Alito said a national injunction “invites the losers to seek to obtain in court what they could not achieve in the political arena.” This captures the danger of progressivism’s larger goals: to use unaccountable elites to achieve aims that cannot prevail in Congress, the representatives of the people elected by and accountable to them.

Congressional legislation should be how this problem is solved but that is unlikely given the fate of the Injunctive Authority Clarification Act. It was introduced in Congress in January to limit injunction to the district or larger circuit court in which it was filed, but is now moribund. Waiting for a case to make its way to the Supreme Court, where it may or may not be accepted for review, weakens a president’s executive power by delaying the policy’s implementation even if it is approved. Moreover, as we have seen with the crisis on our southern border––where “asylum” seekers and other illegal aliens, almost 110,000 just in April, are overwhelming the Border Control––such delay allows a dangerous problem to worsen.

Given these dangers, the Trump administration has turned to the Supreme Court to bring clarity to the powers of lower court judges to issue national injunctions. According to legal scholar Hans von Spakovsky, the Supreme Court has already argued in a 1983 case that the scope of national policy on “vital questions, affecting the whole people,” as Lincoln said, means a federal policy should not be adjudicated in a geographically restricted lower district court, which is exactly what national injunctions do.

As of now, there is no telling what the Supreme Court will do, or even if they will agree to address the issue. If they don’t, then national injunctions will have been approved by the Court’s silence. This in turn means that when a Democrat president returns to the White House, the 100 lower court judges Trump has appointed so far should use the same weapon against the Democrats, and wait for the Supreme Court to decide if any particular injunction is legal or not.

“Principled” Republicans will no doubt protest, preferring to lose political battles as long as their virtue is displayed and admired by the other side. But those who are confident that their policies are on principle better than the alternatives understand that such political hara-kiri is a luxury that is paid for by the millions of citizens whose lives and freedom are endangered by the sorts of failed collectivist policies currently being promoted by the Democrats’ presidential primary candidates.

In the political arena, you first have to win before your principles can lead to laws that protect our freedom. And that freedom has been the animating principle of our political order since its beginning. Reigning in lower-court judges’ politically partisan national injunctions will be another step in rolling back the progressive assaults on our political liberty.

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