Judicial Tyranny’s Final Frontier

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Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

There are about five dozen entries in the Federal Register that reference “[§] 1182(f)” in the context of denying entry to certain aliens. How many were formal rulemakings? Zero. Why? The executive order isn’t a rule, but an articulation of the United States’ foreign policy. . . . From a pragmatic perspective, it would be absolutely insane to require the President to go through a cumbersome rulemaking process to react to a sudden change in diplomatic relations or our national security. (Emphasis in original)

Blackman also rejects due process objections to the revised order:

No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due. (Emphasis in original)

The injunction issued by Judge Watson in Hawaii is equally untenable, especially the application of the Establishment Clause to immigration laws.

What is going on here? Horowitz tells us in Stolen Sovereignty: life-tenured federal judges have steadily expanded their powers, beyond the passive role contemplated by the Constitution, to encompass almost every facet of modern life. They view themselves as black-robed overseers of the other branches—indeed, over the entire American public. In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

Eerily anticipating the pending litigation over Trump’s immigration orders, Stolen Sovereignty expands Horowitz’s originalist critique of judicial activism beyond the familiar topics of religion, abortion, and gay rights to the oft-ignored area of immigration law. Horowitz argues that conferring citizenship on children born in the United States to illegal aliens,[2] and granting welfare rights to illegal aliens, [3] threatens our national sovereignty. “The final frontier of judicial tyranny,” Horowitz writes, “is to steal the sovereignty of the nation-state itself—to change the orientation and membership of the society without the input of the existing members.”

In addition to perpetrating the “myth of birthright citizenship” (based on a footnote in the 1982 case of Plyler v. Doe), and brazenly creating “equal protection” rights for illegal aliens, the Court has stripped states of the ability to enforce federal immigration laws.[4] Moreover, Horowitz recounts, lower federal courts have undermined the federal government’s immigration policies by interfering with the detention and deportation of illegal aliens, and by entertaining lawsuits brought by illegal aliens seeking driver’s licenses or other government benefits. With funding from George Soros, the Ford Foundation, and other sources, Horowitz contends, groups such as the American Civil Liberties Union and the National Immigration Law Center seek to open the nation’s borders even beyond the porous limits of the Immigration and Nationality Act of 1965.

Activist courts further erode the country’s sovereignty when they allow the states to sue on behalf of foreign nationals. The state governments do not have “standing” to compel the duly elected President of the United States to admit more immigrants, visitors, or refugees than he deems prudent. Congress has plenary power over immigration policy, which it has delegated to the President in the above-mentioned Section 1182(f). The lawsuits challenging Trump’s executive orders are baseless attempts to second-guess the nation’s foreign policy and national security.

The legitimacy of the Constitution rests on the “consent of the governed.” Courts have moral authority only to the extent that they interpret the Constitution in a plausible manner. The Framers considered the judiciary, because of its strictly limited powers, “the least dangerous to the political rights of the Constitution,” as Alexander Hamilton wrote in Federalist 78. The judiciary, he added, “can take no active resolution whatever,” lacking the executive’s sword and the legislature’s purse. “It may truly be said to have neither FORCE nor WILL but merely judgment,” in Hamilton’s famous formulation.

As the Supreme Court itself has held, “the wisdom of the policy choices made by [the President] is not a matter for our consideration.”[5] When unelected judges enjoin the President from performing a task expressly entrusted to him by Congress, the judiciary is not serving as a bulwark to our liberty, but as a tyrannical threat to it. To preserve the separation of powers underlying our republican form of government, Congress should rein in the jurisdiction of lower federal courts to prevent them from tampering with federal immigration policy.

[1] 8 U.S.C. section 1182(f).

[2] Cf. United States v. Wong Kim Ark, 169 U.S. 649 (1898) (recognizing birthright citizenship for the native-born children of legal immigrants).

[3] Plyler v. Doe, 457 U.S. 202 (1982).

[4] Arizona v. United States, 567 U.S. ___ (2012).

[5] Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993).

Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

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  1. R Richard Schweitzer says

    The judiciary is part of the legal system. To repeat, ad nauseam, the populace has determined to pervert that legal system into a means to ends. The judiciary, and its human components, are carried along in that perversion of the system to become themselves means to ends.

    People come to regard one another as means to ends; and judges and judgements are not excluded.

    The judiciary is now to be accepted to become a means to censor the executive and provide political constraints.

    To a large extent, this results from equating legislation with LAW.

  2. says

    I am having a little trouble following the argument in this post. Please correct me if I am wrong, but it appears to me that Horowitz is arguing for judicial reform because of (among other things) rulings on welfare and birthright citizenship for immigrants. Rights or wrongs for those various issues aside, isn’t this more a Congressional issue than a judicial one? Shouldn’t we seek to have Congress address these issues (reform the institutions of welfare, more clearly define birthright citizenship, etc) rather than reign in the courts?

    In other words, I question the thesis: “to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

    • Devin Watkins says

      Currently most of the lower courts (and general legal opinion) is that birthright citizenship applies even for illegal immigrants under the 14th Amendment. Therefore there is nothing Congress can do about this. I think there is actually a fairly strong case to make under the “subject to the jurisdiction thereof” clause as applied to illegal aliens. Even most lawyers I talk to have skipped over this phrase not realizing its importance. The reason for this is the modern understanding of “jurisdiction” applied would mean all the US territory. But there is real reason to believe this modern understanding was not what the people at the time of the 14th amendment meant it to mean. Instead, it could refer to political jurisdiction (not legal), which describes the allegiance of the person to the government. Sir Edward Coke described this quite clearly under English common law in this context. And a person who entered England without the permission of the King would not be considered subject to the political jurisdiction of the King (as there is no allegiance, not even a temporary one).

      As to welfare for immigrants, this is mostly up to Congress (although the Court has held some welfare rights to education for the children of illegal immigrants, which may be correct given that the children have not violated the law).

      • Devin Watkins says

        I should note the Supreme Court has never directly addressed this question (other than ipse dixit in a footnote of the opinion on education for children of illegals which is clearly dicta).

      • gabe says

        They were, if I recall correctly, *denizens* of the realm and NOT citizens. The Crown could, and quite frequently did, move them, even against their will, to areas / locales that the Crown deemed appropriate and the Crown could also limit the types of political / economic activities in which they could engage.

        • Devin Watkins says

          Actually no. Denizens are what we would refer today as “lawful permanent residents.” They have moved not just temporarily but have a permanence to staying in England (and they need approval for this). The King could make a person a denizen (If I remember correctly), but it required special permission and the King could not make the person a “subject” (akin to our citizen), which required an act of parliament. Denizens had more rights than aliens, but not as much as English subjects. The most important case at common law for describing this was Calvin’s Case by Sir Edward Coke especially look at page 384: “which local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject; a fortiori he that is born under the natural and absolute allegiance of the King.” … “for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject tot he King of England, though he be born upon his soil, and under his meridian, for that he was nor born under the allegiance of a subject, nor under the protection of the King.”

          It’s all about allegiance under the common law, of which there are several types. (1) natural born subjects (“due by nature and birth-right,” (2) aquired or denizen (in modern law, lawful permanent residents), (3) temporary “that is when an alien that is in amity cometh into England” (4) legal requiring a swearing of an oath (similar to naturalized citizen). An alien who enters without the consent of the King has none of these, and as such any children they have (even while in England) are not considered natural born subjects.

  3. Devin Watkins says

    I think Professor Blackman is right. The Ninth Circuit decision on the original executive order did suffer from several problems.
    (1) treating the TRO as a preliminary injunction without an opinion;
    (2) zero analysis of the underlying statutory scheme and explaining why it didn’t apply;
    (3) applying a very strict standard of review given (a) the lack of facts, (b) the preliminary nature of the case, and(c) the normal discretion given to the President in foreign policy matters; and
    (4) a very overbroad injunction that applied to far too many people who had no claim.

    That said, I think the original executive order did have Due Process problems as applied the lawful permanent residents which it did not (at least explicitly) exclude. Even the administration I think realized this and tried to post hoc interpret the executive order to not apply to them because they realized the problems.

    Now moving on to the new executive order. I agree that “the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established” and that the Due Process Clause objections given are not valid.

    Now the Establishment Clause grounds are far more complicated. There is reason to think the President was motivated to create a “muslim ban” and this was the actual purpose behind the executive order. Does this make it unconstitutional? Well we do have a variety of opinions that state if it is the purpose to discriminate against people’s religions, that is normally unconstitutional. Still I agree with Blackman that the Establishment Clause (along with many other parts of the First Amendment) never applied with full force in an immigration context. We have had a variety of faith based discriminations and things like prohibiting “communists” from entering the country. Discriminating in this manner in the domestic sphere would be unconstitutional, but the “plenary power” doctrine has protected them against constitutional attack. Perhaps this is correct based on the idea that they do not yet have First Amendment rights. It does seem appropriate to discriminate based on what would normally be considered First Amendment protected speech (say admitting those foreigners that say “I love America” but not those that say “I hate America and it should die.”).

    The standing arguments in these cases are rather dubious at best.

    I’m not a fan of very broad deference anytime the executive shouts “national security.” Judges should look beyond the veil and examine the underlying evidence (in camera if necessary so it is not released publicly) to see if there is a plausible claim of national security. Claiming “national security” shouldn’t be a blank check to violate the rights of people without review, but if it is a plausible claim of national security then deference to the executive within his scope of commander-in-chief powers is appropriate. In this case, the lack of functioning governments to help vet immigrants should have been enough for the national security claim to be plausible. And once plausible then the judges should defer to the executive on national security within the President’s traditional powers like this case.

    I wouldn’t say judges “wield more power than legislators,” they do wield a lot of power, but it’s a different kind of power (like comparing apples to oranges), and an equal amount of power as an institution (not a single judge which can be overruled but the judiciary as a whole).

    Many liberals on the court do, unfortunately, want to use the court’s to impose their policy preferences rather than applying the law. I agree, they should be condemned for this. I would even say they should be impeached and removed as judges, but Congress wont do this due to liberals primarily in the senate who would block such removal. There are a lot of very aggressive things Congress could do if it choose with just a majority. It could, for instance, remove lower court judges from the bench. They cannot be removed as a judge without impeachment (they will continue to get paid), but there is no need to have them sitting on any court hearing cases if a majority of Congress and the President agrees to remove them.

    I think there is actually a decent case against birthright citizenship to illegal aliens in the 14th amendment under the “subject to the jurisdiction thereof” clause, but this is far too long to explain here. It’s a somewhat close case.

    I disagree with this line: “When unelected judges enjoin the President from performing a task expressly entrusted to him by Congress, the judiciary is not serving as a bulwark to our liberty, but as a tyrannical threat to it.” Just because Congress has “expressly entrusted to” the President doesn’t make it constitutional. If it is constitutional (to do and to delegate) and “expressly entrusted to” the President, then it isn’t for judges to interfere.

    Also I would suggest taking a harsher look at these “nationwide injunctions” from a historical equity standpoint. These things are a rather modern vintage. Prior cases only dealt with the actual parties before the judge (until the mid 20th century) and it is questionable if the Court’s properly have the power to apply their decision to the whole Country like this. It’s especially problematic on a preliminary injunction unstayed for emergency appeal. While the Court has so far acquiesced and not stopped these actions by lower court judges (or even implicitly supporting them), they have not directly ruled on the propensity of such nationwide injunctions against the government.

    • gabe says

      And why can’t Congress (not that it has the guts) simply limit the ability of Courts to issue nationwide injunctions; could this not be done under the guise of “defining” the jurisdiction of the Lower Courts.

      Also: “subject to the jurisdiction thereof”:
      How is it that one can be presumed to be under the jurisdiction when one’s mere presence is an affront to our laws? Would this not constitute a willful refusal to subject oneself to the *jurisdiction”?

      Also, this BS about Establishment Clause and discrimination:

      I argued this after the first injunction out of Seattle:

      Any attempt at accommodation by the Executive in this regard will be a) viewed as weakness and b) will encourage the Judiciary to characterize the Executive’s apparent compliance with the Establishment B.S as now “settled law.” In short, the Black Robes will (and have) take this as a precedent.

      Were we to consider every campaign utterance by the Executive or any Legislator as proof of “mischief” / intent, then there is no Law that is not subject to the whimsy of the Black Robes.

      The proper response is to come back with the ORIGINAL E.O, absent the issue with permanent residents, enforce it and DEFY the Courts to do anything about it.
      A constitutional crisis, you say?
      Yep, but a crisis of the Black Robes own making – and perhaps an opportunity for them to get their long overdue comeuppance.

      Were I The Trumpster, I would commandeer air time and give a full exposition of the Legal and Statutory grounds for the E.O. as well as a clear explanation of how the Judiciary has usurped the role of the Congress and the Executive.

      Or, better still, provide the Supreme Court (abd Fed Circuits) with original jurisdiction on EVERY SINGLE IMMIGRATION CASE / DEPORTEE, ETC and REQUIRE that the full court(s) must HEAR every single utterance, motion, plea, etc etc.

      How about we kill them with compliance. You want to rule – SO RULE – but on every single individual known or suspected to be here illegally.

      Methinks, they would soon find it within the Constitution to allow the Congress and the Executive to limit entry to this country.

      • Devin Watkins says

        Most of the authority for the judges to issue these kinds of injunctions comes from the All Writs Act: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” And Rule 65 of the Rules of Civil Procedure: https://www.law.cornell.edu/rules/frcp/rule_65. Both of these can be modified/clarified by Congress.

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