Julio Gonzalez, M.D., J.D.
Earlier this week, The Federalist Pages reported that an Obama appointed federal judge ordered the Trump administration to resume accepting asylum claims from migrants regardless of the point of entry and how the entry occurred. At the time we noted the ruling's inconsistency with the accepted powers of the President of the United States as enacted in 8 U.S.C. §1182(f) of the Immigration and Naturalizations Act. Understandably, President Trump responded by calling out activist judges and the continuing problem of legislating from the bench.
Predictably, the President's comments received a great deal of pushback from the Left and from the mainstream media. Especially surprising was the flack the President took from Chief Justice John Roberts who is normally quiet on such matters. In response to a query from the Associated Press Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Chief Justice Roberts is patently wrong.
The presence of activist judges, judges who further a specific agenda from the bench rather than neutrally apply the law, has been recognized since the nation's inception. In fact, in a letter to William Jarvis dated September 28, 1820, Thomas Jefferson wrote, "Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is "boni judicis est ampliare jurisdictionem," and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control."
The fact of the matter is that judges are in a much greater position to legislate from the bench than was ever intended.
The Constitution is completely silent on who determines the constitutionality of a law. Indeed, there was much discussion at the time of the nation's founding regarding whose responsibility it was to declare a law unconstitutional. The general consensus was that if a law was written outside of the bounds of the Constitution, it was void and had no merit. For that reason, an unconstitutional law was not to be obeyed. But who determines if a law is unconstitutional?
The Framers actually placed the burden of adhering to the provisions within the Constitution upon every elected official. Article VI of the Constitution requires that all state and federal officials make a vow of allegiance to the Constitution. Inherent in such a vow is a self-imposed prohibition on passing or upholding any unconstitutional law.
Others within the Framers thought the determination of unconstitutionality was best made by the states. Since the states had collectively decided to yield certain enumerated powers to the new national government, then shouldn't those very states be the ones to say whether a law is constitutional?
The determination that the Supreme Court was the ultimate authority of all things constitutional was actually arrived at by the singlehanded action of the Supreme Court itself. In 1803, Chief Justice John Marshall wrote in Marbury v. Madison, arguably the most influential case in American jurisprudence, that it would be the Supreme Court that would determine whether a law was unconstitutional. In fact, his opinion in that case did not prohibit any other methods of determining constitutionality, but did open the floodgates for the historical pattern of the Supreme Court striking down laws passed by Congress and actions undertaken by the executive branch.
This still uncorrected arrangement has been a massive facilitator for judges to steer the country's direction. In essence, ever since Marbury all a judge has had to do to obstruct an agenda with which he or she disagrees is to strike the law or action down as unconstitutional, a position that is way outside of the bounds of the judiciary as initially intended.
So accepted has the practice of a judge's legislative intervention become that college professors at our more liberal institutions of higher learning are teaching their students that part of a judge's role is to steer society in the direction of social justice and equality. Needless to say, such a role was never intended for the national government, much less for the judiciary, the only branch "not responsible, as the other functionaries are, to the elective control."
In his pushback against Chief Justice Roberts' misguided statements, President Trump tweeted, the Ninth Circuit "has become a dumping ground for certain lawyers looking for easy wins and delays."
President Trump is correct. Although the present decision regarding asylum seekers was made at the district court level, the court selected in which to try the case answers to the Ninth Circuit Court of Appeals, the most liberal circuit and the one most hostile to President Trump and his policies. It is no coincidence that the Ninth Circuit is where liberal activists go to have conservative legislation or executive actions contrary to their views reversed. So biased and inconsistent with conventional constitutional thought is the Ninth Circuit that, as President Trump noted in a tweet, 70% of its opinions are overturned by the Supreme Court. Such a high percentage of nullifications would not be possible if it weren't for the infiltration of that circuit with activist judges willing to inscribe their partisan views upon the Constitution.
As is overwhelmingly clear, Chief Justice Roberts' perception of judges as neutral actors doing their "level best to do equal right to those appearing before them" is inconsistent with reality. Indeed, it is disturbing that Chief Justice Roberts fails to acknowledge the most important challenge affecting America's judiciary; the partisan workings of activist judges upon the law, the constitution, and the nation's posterity. Instead of denying the existence of Obama, Bush, Clinton, and Trump judges, Chief Justice Roberts ought to be acknowledging their existence and fighting to counteract such propensities within his branch of government.
Clearly, the actions of activist judges must be counteracted if we are to avoid "the despotism of the oligarchy" to which Jefferson alluded in his previously cited letter to Jarvis. President Trump hit on one solution: break up the Ninth Circuit as it has become too large and too powerful.
But there are other solutions. First. Congress can limit the scope of certain decisions to the geographic jurisdiction of the court. So for example, if the judge writes an order requiring the President to accept the applications of asylum seekers who enter the United States outside of a designated point of entry, the order would only apply to cases within that judge's district; in this case, northern California. Such a restriction would do away with a district judge's ability to paralyze the whole nation's policies with a stroke of the pen.
But of course, the most effective provision would be the legislative override addition to the Constitution where Congress would have the ability to keep a law operational despite the opinion of the Court. Although foreign to the United States, the concept of restricting the power of the judiciary is immensely important and employed in other countries. For example, the Supreme Court of England cannot strike down a law passed by Parliament. Rather, the court may only make a recommendation that an offensive law be changed. Additionally, Canada passed a legislative override bill in 1982, which had a chilling effect on an activist judiciary. Other countries like Ireland, Australia, and Israel have checks on the judiciary's power.
Finally, a legislative override provision would be quite similar to an idea submitted by James Madison. In a letter to Jefferson regarding the latter's proposal to allow judges to serve as the supreme authority on the constitutionality of Virginia's laws, Madison suggested that no law that was struck down by the judiciary be disallowed until an intervening session of the Virginia Assembly. The Assembly would then have the opportunity, by either a 3/4 or 2/3 majority, to overrule the Court. If the legislature passed the resolution in support of the bill's continued operation, then the statute would continue to be functional regardless of the opinion of the court. If not, the Court's ruling would stand.
Clearly, so long as we do nothing, the Court's power will continue to grow and continue to serve as the final say on the survival of whatever idea any of the other branches may devise in addressing the societal challenges of the day. If allowed to continue, the courts, by their actions and as predicted by Jefferson, will rule continue to take its place as a small, largely unelected class that dictates the ultimate standards for the rest of the nation.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives from 2014-2018. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.