Wednesday, June 24, 2020

Time for Trump and Conservatives to Crush Judicial Supremacy: Here’s how

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Do you think the American people would ever have ratified the Constitution if they had been told “the meaning of this document shall be whatever a majority of the Supreme Court says it is?”
—Justice Antonin Scalia, in one of his final public speeches before his death
When addressing the concerns of the Anti-Federalists that the proposed office of president would function like a monarch, Alexander Hamilton detailed a list of stark distinctions between the two powers in Federalist #69. He used the power over immigration as the quintessential example of what distinguishes the power of a president from that of a king. Whereas “the one [a president] can confer no privileges whatever,” wrote Hamilton, “the other [a king] can make denizens of aliens.”
Well, Hamilton never accounted for a post-constitutional era where the federal courts would also be able to make citizens of aliens.
It’s not even worth delving into the details of today’s 5-4 decision of the Supreme Court that President Trump cannot rescind an illegal executive amnesty of his predecessor in the same way it was initially promulgated. The same way it’s not worth trying to parse a decision redefining marriage or sexuality in law. These are powers a court simply does not possess.
The question for Trump and conservatives headed forward is where to go from here, now that so many have realized what I’ve been warning about for years: namely, that the minute you agree to the premise of judicial supremacism – that the courts stand above the other branches in deciding fundamentally political questions – no amount of “appointing better judges” will rectify a judicial North Korea. The solution is to uproot the concept of judicial supremacism altogether.
“So Trump should defy the court, right?” I’ve been asked.
No. The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts “must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.” Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it’s following the law being defied by the judiciary.
Read the rest from Daniel Horowitz HERE.

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