President Donald Trump governs like no other president in the last half century. Not since FDR, and before him Andrew Jackson has there been someone who wishes to transform American governance to his own vision.
Roosevelt tried to “pack the Court” and double the number of justices, but Congress didn’t go along. But possibly the president with the most impact on the federal judiciary was none other than Ulysses S Grant. Grant signed the Jurisdiction and Removal Act of 1875, which greatly expanded the jurisdiction of federal courts to all questions arising out of federal law, and gave litigants much more leeway to remove cases from state courts to the federal system.
The federal courts have now become the playground of presidents to pack their own political partisans. Since Roosevelt, the number of federal judge appointments has steadily risen for each subsequent presidential term. President Obama appointed 331, one more than his predecessor, and 270 of them to U.S. district courts. Trump himself has dozens of appointments left over from Obama.
What Congress did, and Grant signed, in post Civil War 1875, Congress can largely undo in 2017. Practically everything, these days, can be argued from federal jurisdiction if it’s bigger than a speeding ticket. Even assault charges can be litigated as hate crimes. The GOP controls both houses of Congress and the White House with a bigger majority since before FDR. If they achieve anything, other than partisan tit-for-tat we expect from politicians, restructuring the federal judiciary’s role and power might be the most significant positive change to our ever-encroaching federal government since antebellum days.
I say positive change because Congress has delegated so much of its authority to the executive branch and the judicial branch, that it retains almost none to itself. Cries of “shut down the government” are laughable fundraising sound bites. Even the creation of a budget has become a farce, with a series of “continuing resolutions” based on political budget fantasies.
Congress must reassert itself as a coequal branch of our federal government. We already know that in 2018, the pendulum will begin to swing back toward Democrats. Once that happens, we’re back to tit-for-tat. Democrats are naturally attracted to authoritarian, judicial-activist government. They like to rule by fiat, and they pushed the progressive agenda way too far, which is what got us here.
Now Trump is pushing back using the same tools the Democrats used. I realize he’s not a conservative, or a student of American history, government, or jurisprudence. He’s a nationalist, populist who appeals to the uninformed voter, the modern “Know Nothing.” I wrote this in September, 2015.
Nothing has changed since August, only the topic. Instead of Mexican immigration and a “big, beautiful wall” we have Islamic terror and a “big, beautiful wall” that only keeps Muslims out. And Trump’s reaction to those who attack him also has not changed; he will double-down on his remarks and use personal attacks against those who criticize.
Nothing has changed.
It’s time for conservatives to make our move and convince Trump to support a rollback of federal judicial activism. If the drunkard, military man Grant could be convinced to give a blank check to the federal judiciary, then perhaps Trump can be convinced to revoke that check.
Congress could reassert itself, and restore some balance to our federal government. It can substantially modify the 1875 Jurisdiction and Removal Act to strip lower federal courts of the power to adjudicate every federal issue raised by states or individuals. Then we won’t have a federal district court judge blocking a presidential executive order, which Congress enabled by delegating much of its Constitutional power to regulate immigration.
Trump and Congress should act to save the Republic now, because in two years, this opportunity expires, perhaps forever.