Liberal Democrats in Washington have decided to plant their flag on the hill of illegal immigration in the upcoming midterm elections, at least that’s the plan for this week. According to Mark Levin, Democrats are “viewing this issue as Trump’s Katrina” and are planning an all-out offensive in the name of open borders.
As Conservative Review’s Daniel Horowitz has written, it is unelected federal judges that have essentially nullified our immigration laws and allowed the flood of illegal immigrants into our country by declaring it a “right” of migrants to remain rather than be deported. And these out-of-control judges, with their tyrannical mindset, have to be stopped once and for all.
Early Americans knew of this potential problem. As Thomas Jefferson wrote to a friend, “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”
But judges, he said, with their powers are “more dangerous” because “they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”
Those that opposed the new Constitution, known as “Anti-Federalists,” saw only trouble when they looked at Article Three, which outlined the federal judiciary. They wrote their own collection of essays, the “Anti-Federalist Papers,” to counter the arguments of the Federalists. One such contributor, known as “Brutus,” who was most likely Robert Yates, later Chief Justice of the New York Supreme Court, wrote three essays warning of an encroaching judiciary:
“The supreme court under this constitution would be exalted above all other power in the government, and subject to no control,” he wrote. “This power in the judicial, will enable them to mold the government, into almost any shape they please.” This is possible because “the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution.”
But Congress was handed ample powers under the Constitution to restrict the powers of federal courts; they just rarely use them this day and age. In fact, the only court created in the Constitution is the Supreme Court; all others are creations of Congress – every district court and every appeals court. And they can be abolished, which was the tactic used by President Jefferson. During his administration, Congress abolished half the entire federal judiciary.
Even the number of seats on the Supreme Court is determined by Congress. During Reconstruction, when two vacancies occurred on the Court, Congress actually removed both seats to keep President Andrew Johnson from naming any new justices, restoring them after the election of Ulysses S. Grant.
Another important congressional power concerns the judiciary’s jurisdiction. Article Three, Section Two of the Constitution reads:
“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.”
Congress has used this tactic in the past and one well-known case involved Mississippi – Ex parte McCardle. In 1867, federal authorities, acting under the Reconstruction Acts, which provided for military commissions, martial law, and no habeas corpus for those detained, arrested William H. McCardle, a Confederate veteran and owner of the Vicksburg Times, for writing a series of editorials criticizing the North, Congress, and the Reconstruction program.
McCardle sought a writ of habeas corpus, under the Habeas Corpus Act of 1867, to gain his freedom, citing the unconstitutionality of the Reconstruction Acts. A lower court ruled the law valid and kept McCardle in custody, so he appealed to the Supreme Court. Radical Republicans in Congress were fearful that if the Supreme Court ruled in this case, as they had in a previous case, it might throw out the Reconstruction Acts, which would threaten the entire program.
Acting under Article Three, Section Two of the Constitution, Congress stripped the Court’s jurisdiction in all cases arising under the Habeas Corpus Act. When McCardle’s case came before the Court, it was “dismissed for want of jurisdiction.” So, the Court recognized the constitutional authority of Congress to withdraw its jurisdiction.
Texas Congressman Louie Gohmert has recently introduced a bill in the House to limit the jurisdiction of federal courts on matters pertaining to illegal immigration. This is a bill that should be adopted quickly.
For his part, President Trump should look to several of his most notable predecessors – Jefferson, Jackson, and Lincoln – and ignore outrageous court rulings. The only enforcement powers of the federal government reside in the executive alone.
Republicans won the election of 2016 and control both houses of Congress and the White House. It’s time they acted like it.