SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
As expected, the court went for the right of judicial review. The Justice Department held that immigration executive decisions, under the authority of Congress, are immune from the judiciary.
“In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action,” the court ruled.
Essentially, if the court decides to grant Martians the right to live in Spokane, for its own reasons, beyond challenge by the executive branch, the Ninth Circuit asserted that right in its ruling.
Now it’s up to the Supreme Court to decide the fate of Trump’s executive order, if they choose to get involved.
But what are Trump’s options in this battle, now that the lines are clearly drawn?
The president has no real option with the Supreme Court, since it’s a constitutional body. He could ask Congress to approve adding or removing justices from the SCOTUS bench, but that hasn’t worked since 1869. FDR tried to “pack the court,” and Congress didn’t bite.
With the Ninth Circuit, things get a whole lot more interesting. The Judicial Circuits Act created the federal appellate courts in 1866, and what Congress giveth, Congress can taketh away. President Trump could simply ask Congress to do away with the Ninth Circuit, which has been a liberal thorn in the GOP’s side for decades.
This isn’t just a conservative fever dream. Daniel Horowitz wrote about it in Conservative Review just this week.
The time has come to strip the Ninth Circuit down to size. This court is by far the most anti-constitutional circuit amidst a federal judiciary where the majority of the circuits don’t respect the Constitution as written. Most of the members of the Ninth have literally supplanted the written Constitution for an ever elastic set of ethos that are anchored to nothing more than the political values of these unelected judges at the time they woke up that day. Most importantly, what they have done to the sovereign state of Arizona is outrageous. Congress owes it to the good citizens of the Grand Canyon State to free them of the clutches of judicial tyranny.
Horowitz doesn’t go so far as to suggest dismantling the Ninth Circuit, but he advocates clipping its wings by creating a Twelfth Circuit Court, which Rep. Andy Biggs of Arizona proposed in H.R. 250. But nothing would stop Congress from creating several more appellate courts and stripping the Ninth to effectively no jurisdiction, or abolishing it completely.
I don’t think Trump has any compunction about calling for the Ninth Circuit to be abolished. In fact, I’m surprised he hasn’t tweeted it already. But when you go to war with the judiciary branch, it might be good policy to have your best troops available. Trump might wait until Judge Gorsuch is confirmed before firing his next shot.
Make no mistake, there will be a next shot. If Trump backs down here, then every executive action he takes for the next four years will be blocked by a liberal federal judge. And with Trump, it’s not enough to simply win an issue. He has to hit back harder. The showdown is coming.
Pass the popcorn.