Elephant in the Courtroom

Sometimes when running through seemingly settled arguments, we can’t see the forest of clarity for the trees of minutia thanks to bumping our faces into their distracting limbs.

So, before we get to those trees, let us look at that forest.

There can be debate over the advisability of when to use the following presidential prerogative, but never its codified existence in our founding document.

Every president has the unassailable (albeit sometimes perilous) constitutional option to use the functionality and mechanics of his branch’s “separated powers” to leverage his “check” against what he believes to be an unconstitutional encroachment upon those powers by any component of the judiciary.

Furthermore, he can do so even as the dispute makes its way through the appellate process.

This is especially relevant to time-sensitive issues when even an eventually favorable decision for the president would be moot because of a lower court’s flawed ruling having caused irrevocable damage.

In short, he can ignore any federal judge’s usurpation of his branch’s prerogatives by taking advantage of the court’s inability to enforce it — a limitation deliberately designed by the authors of our Constitution to ensure that no part of the judiciary could ever morph into a tyrannical entity.

Otherwise, it could potentially rule that it has the actionable authority to oversee the military’s operations instead of the president and initiate legislation instead of Congress.

We can thank Charles Louis de Secondat (Baron de Montesquieu) for this failsafe. He warned about this very risk when originating the “separation of powers” principle upon which our Founding Fathers had predicated America’s own three branches of government.

Thomas Jefferson expressed similar concern when writing to Judge Spencer Roane in November of 1819. He warned that without constraints, the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Now the president is not a King, so he also faces a check against becoming a “tyrannical entity” should he interfere with proper judicial review in the name of protecting his separated powers.

Citizens can (through Congress) either find that a president is right about a judge’s (or judges’) rogue conduct and let his rejection pass with no House impeachment and Senate expulsion trial, OR the House can find that he is the rogue actor and impeach him, thus sending the case to the Senate for trial.

However, if it fails to reach the two-thirds vote required to trigger said expulsion, then the president will have won the constitutional argument in focus (as per the highest legal process in the land) and his repulsion of that alleged judicial overreach shall stand.

Regardless of all the sophistic objections lawyers and judges may wish to spew over its supposed immorality, that “Check” nonetheless exists.

After all, just as no person can be a judge in his own trial, nor can the judiciary be the final adjudicator when its own branch happens to be one of the two litigants regarding a separation of powers dispute.

So, for those of you screaming “Oh my stars!” and succumbing to the vapors, kindly embrace some rudiments.

Each branch has certain absolute powers beyond the reach of the other two. This is to ensure that each may leverage against the other (or others) the checks and balances (and reciprocal checks and balances) required to maintain and protect their respective allocated authorities.

Yes, the Supreme Court has the “final ruling” over the constitutionality of a given argument. However, when assessing whether it has possibly encroached upon another branch’s authority, it probably does not have the “final say.” Otherwise, this solution to the quandary would be absent. (RELATED: This Mess Is of Your Own Making, Chief Justice Roberts)

In Marbury v. Madison in 1803, the Supreme Court rightly clarified its branch’s authority for judicial review (i.e., its power to interpret when a conflict is judicially reviewable and whether challenged laws pass constitutional muster).

However, the right to interpret the Constitution has never been a license to unilaterally amend it. That’s an Article V function. And, only a Constitutional amendment could allow a court to absorb another branch’s allocated authority.

Yes, judicial review makes sense because there are plenty of times when the Constitution simply does not have the corresponding language to deal with a particular challenge. Accordingly, we accept the courts’ aggregate determinations over these conflicts.

However, when the Constitution does provide direct wording and our judiciary disregards its instructions on the point, that is when the Article III community has committed a hostile act against its own citizenry and must be met with the same leveraged check it routinely applies to the other two branches. It’s a co-equal branch, not a superior one.

To be unambiguously clear, not even the Supreme Court can credibly rule that the Constitution is in opposition to that which its text explicitly permits, nor can it rule that the Constitution is in support of that which its text explicitly forbids — unless language is no longer tethered to the meanings of the words that comprise it. (RELATED: John Roberts Is Responsible for the High Court’s Self-Delegitimization)

“What about the appellate process,” many would say. Yes, use it. But the executive checking the judiciary in real-time remains a documented failsafe.

This process has always been an option, and it has been a guiding factor in one manner or another for a number of presidents. Thomas Jefferson knew this with the Louisiana Purchase; Andrew Jackson triggered the “Trail of Tears” when he defied Worcester v. Georgia 1832; Abraham Lincoln declared war without congressional approval while also suspending habeas corpus; and (most convolutedly), Joe Biden continuously pushed student loan forgiveness maneuvers while bragging that the Supreme Court “didn’t stop me.” (Biden just used progressively weaker statutes as faux replacement grounds to circumvent said rulings until his term ran out.)

Most applaud Jefferson’s and Lincoln’s flouting of the judiciary while bemoaning Jackson’s and Biden’s.

Now let us turn our attention to “those trees.”

U.S. District Judge James Boasberg ruled that Trump could not deport hundreds of illegal immigrant gang members comprising a recently declared terrorist organization until a court hearing was held.

He then ordered the return of the plane carrying them to El Salvadore, but the illegals still wound up being delivered. Since Judge Boasberg had never included said turnaround order in written form, Trump’s Department of Justice claims he was technically not disobeyed. Plenty of attorneys disagree. (RELATED: Dictatorship of Obama Judges)

Addressing this calamity, White House Press Secretary Karoline Leavitt said:

As the Supreme Court has repeatedly made clear — federal courts generally have no jurisdiction over the president’s conduct of foreign affairs, or his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion.

She further stated that “a single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.”

Senior CNN Legal Analyst Elie Honig argued a different view in one of his articles:

It’s a lose-lose situation for the nation. In one scenario, we have open, intentional defiance by the executive branch of a court order. I’m typically among the last to claim some situation or other is a “Constitutional crisis.” Too often, that phrase is deployed as a jacked-up substitute for “Something is happening that I don’t like.”

In my view, we reach a Constitutional crisis only when we don’t know what to do next. And if the President is blowing off the courts, then our only options are pale ones indeed. A judge can make contempt findings, but why would an administration that already defies court orders care about that? If you could ask the Founders what happens to a president who defied the courts, I suspect they’d point to impeachment as the proper Constitutional remedy. But we live in modern reality, and that’s not happening.

Notice to Mr. Honig: Your fear that Trump’s check option is unreasonably too effective does not make the tactic any less constitutional simply because he would likely survive the Congressional check on him.

Separately, it’s perfectly fine that many of Trump’s executive orders have been challenged in court by Democrats and left-leaning groups.

However, if Trump’s executive orders stay within his own separated powers as head of the executive branch, and they don’t usurp the separated powers of the other two branches, or infringe upon the constitutionally defined prerogatives of the states, or the individual rights of the citizenry, then clearly his executive orders cannot be blocked.

And this includes judges who might wish to put forward a bad-faith ruling that exceeds the jurisdiction of their branch’s own separated powers.

For example, if a political activist group sued Trump to block him from nominating a candidate to any of the Article III Courts, and any of the federal courts were to rule in that organization’s favor, Trump could willfully ignore said ruling because he would be thwarting the court’s usurpation of his plainly written designated authorities.

And he would not just have the instructions of the Constitution on his side, but also the mechanics of his separated powers to leverage the outcome.

For too long these activist judges have been allowed to pretend that they don’t understand checks and balances vis a vis separation of powers, and how the latter can leverage the former because it allows each branch to resist the other to the point of their respective limits.

It’s not supposed to be a cordiality dance. And when invoked, it cannot be a “constitutional crisis” because it’s too busy being our “constitutional remedy.”

Are we out of the woods yet?

Alan Nathan is host of the longest running nationally syndicated Centrist radio program in the country, The Alan Nathan Show, which is aired on the Main Street Radio Network.

READ MORE:

Dictatorship of Obama Judges

John Roberts Is Responsible for the High Court’s Self-Delegitimization

Five Quick Things: The Well-Deserved Disgust of the American People

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