Lanterns: Congress Must Use Its Power to Halt the Judiciary Coup


Congress Must Use Its Power to Halt the Judiciary Coup

For the second time, an immigration executive order issued by the president has been challenged in the courts by a number of Democratic states, again led by the attorney general of Washington State, Bob Ferguson.

Congress ignores existential threat to the republic

Congressional Republicans and the president are totally engrossed in the immediate repealing and replacing of ObamaCare. But they are ignoring a looming constitutional crisis spawned by yet another attempt by the Left to nullify the election.

If it is not stopped, this insurrection by the judiciary will prevent the president from carrying out his most important initiatives and will permanently drain the elected branches of power—an existential threat to our republic.

For now, the other states are Minnesota, Oregon, Massachusetts and New York. Hawaii has also joined in. Their refrain is that the president means to block all Muslims from entry, though neither EO had that effect. The truth is the opposite: it is now obvious the mission of these suits is to crush all attempts to restrain Muslim immigration.

Perhaps the Republican-controlled Congress intends to let Ferguson move into the White House altogether, and send Mr. Trump and his family back to New York. Congress may be dispatched as well, to be replaced by a panel of judges, as we become an unmitigated oligarchy.

The courts have overstepped their constitutional authority

Conservative Review’s estimable commentator, Daniel Horowitz makes it very clear that the courts do not possess the power they are wielding and never did; the Founders intended for it to belong to the political branches, which are elected by the people.

Mr. Horowitz calls absurd “the notion that a state can have standing to sue the federal government in order to bring in more immigrants, visitors, and refugees. It would be akin to a state suing the president because it doesn’t like his foreign policy.” These are “political questions, not legal ones,” he writes, explaining that the Founders meant Congress, as the representative of the people, to have full authority over immigration:

As James Madison wrote in 1835, “[I]n the case of naturalization a new member is added to the Social compact …by a majority of the governing body deriving its powers from a majority of the individual parties to the social compact.”

This is why our Constitution vested Congress with plenary power over immigration policy, and why the courts—before they became autocratic in recent years—conceded that they have absolutely no jurisdiction to second-guess the legislature or executive officials on any immigration decision not involving U.S. citizens.

Unlimited Muslim migration is a threat to America

Horowitz quotes Justice Joseph Story, in Commentaries on the Constitution (1833):

“If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.”

He declares that “every word is speaking to liberals today in states like Washington who want to endanger the nation with unlimited numbers of Sharia-adherent immigrants and refugees during a time of global Islamic uprisings.”

Yes, in spite of DOJ lawyers’ curious reluctance to present evidence to this effect, in at least three hearings on the previous EO, there is a risk to us all, by indulging the Left’s mania for bringing in endless flows of Muslim migrants. Europe has learned this the hard way, and if the Left isn’t stopped, we will also.

Behold the wonders of the boundless influx of an alien culture in France, compiled by Gatestone Institute’s Europe expert, Soeren Kern, who told Fox News: “The Europe that we’ve come to know and … love is certainly over.” The stories of rapes, Islamization, and Jihad in Germany are here and here.

The courts were not meant to have supremacy

In another article, Daniel Horowitz expresses shock that “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.”

He outlines how the judiciary, including the Supreme Court, have vastly overstepped their jurisdiction. “Aside from a few spheres of original jurisdiction granted to the Supreme Court, the rest of the Supreme Court’s purview is ‘appellate jurisdiction’ from cases they receive on appeals from the congressionally-created lower federal courts or from state courts.” [Emphasis added.]

Article III, Section 2, Clause 2 of the Constitution, clearly states the sole powers of the Supreme Court:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.

In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [emphasis added]

Horowitz explains that this clause was meant to allay any fear of a runaway judiciary “that would not stand for election.” He quotes John Marshall at the Virginia Ratifying Convention in 1788:

“These exceptions certainly go as far as the Legislature may think proper, for the interest and liberty of the people.”

In his book, Stolen Sovereignty, he wrote: “If the definition of marriage, religious liberty, and sovereignty are not “for the interest and liberty of the people” to have that power vested in the elected branch of government, it is difficult to conceive what exactly would qualify as legitimately within the power of Congress.”

Yes, that’s right: if Congress had really wanted to prevent the re-definition of marriage by the SCOTUS, it could have made that an exception to the Supreme Court’s jurisdiction, by legislation.

In another piece, Horowitz quotes from Supreme Court decisions that show the courts have shamelessly overstepped their authority, and that “Immigration should be the first issue removed from the Article III courts”:

It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” —Knauff v. Shaughnessy, 338 U.S. 543 (1950)

Due process does not invest any alien with a right to enter the United States—Shaughnessy v. Mezei, 345 US 222-223 (1953) (Jackson, J., dissenting)

This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. — Fiallo v. Bell, 430 U.S. 792 (1977)

Congress has plenary power over the lower courts and must use it

We must wonder just how long Congress will wait to assert its plenary constitutional authority over immigration—and over the courts as well—by legislatively blocking the lower courts’ jurisdiction over who comes into this country. The federal courts’ overreach now endangers national security.

Using the “enormous power” afforded to Congress by the Exceptions Clause is referred to as jurisdictional stripping. “The default is not that the federal judiciary has all the power to adjudicate any case unless Congress actively “strips” them of this authority,” says Horowitz. “Quite the contrary, they only have the power that Congress affirmatively grants them.”

Congress’s power over the federal courts is, even more, total than its power over the SCOTUS; it’s absolute, he declares:

I’d advise members of Congress to begin with a … modest approach of stripping the lower [federal] 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. … 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.

He suggests Congress might consider rebuking the Ninth Circuit:

In addition to reclaiming some of their political jurisdiction, Congress can begin punishing wayward circuits, such as the Ninth Circuit, by minimizing its geographical jurisdiction or clipping its wings to issue nation-wide injunctions or have their rulings be used as precedent.

Unless Congress uses one of these tools, a liberal district judge in any part of the country can put a nationwide injunction on the most lawful common sense action of Congress or the president, even if it is upheld in other districts.

We’ve recently witnessed that happen, as the district court in Washington State applied a national and continuing restraint on the first executive order, while the district court in Boston made it temporary, and upheld the president when the plaintiffs asked for an extension.

He warns that “At present, the ACLU has the ability to encumber every single deportation or any action protecting American sovereignty in court and soliciting a nationwide injunction from any number of extreme district judges. By removing the lower courts from the process, liberals would have to convince the Supreme Court, which has a limited case load, to accept their cases.”

What Congress must do

The way the Left has been behaving—in Congress, the courts and the streets—makes it essential for Congress to act now. It must use its legislative authority to definitively end the federal courts’ illegitimate jurisdiction over immigration decisions that belong exclusively to Congress and the president. The House has the numbers to pass such a measure, and Senate Majority Leader McConnell must change Senate rules to allow a simple majority to pass legislation, then put a stop to what is essentially a judiciary coup.

What you can do

Now is the time for We the People to assert ourselves, or we will wind up like Europe. Share this message. Then:

Contact Speaker Paul Ryan: Phone: (202) 225-3031 or Twitter: @SpeakerRyan and

Contact Mitch McConnell: (202) 224-2541 or Twitter: @SenateMajLdr

Tell them to immediately pass legislation to end federal courts’ jurisdiction over immigration, and tell McConnell to change any necessary Senate rules to do it.

Written by Bob Bennett

Bob Bennett, a NY-based writer, has written op-eds for the WSJ and a cancer medical journal; op-eds and travel pieces for the NY Post and a cover article for the Jewish Press. He has also appeared with his wife on Fox News, discussing Obamacare.

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