Congress AWOL as Courts Derail the Trump Train

John and Andy Schlafly
08-08-2018

President Trump’s party controls Congress, but one would never know that by how it has been AWOL (absent without leave) while courts block Trump at every turn.  Paul Ryan, the Speaker of the House who is retiring at the age of only 48, is doing so little that the public might wonder if he is even still in office.

Meanwhile, the judicial war of resistance against Trump continues unabated.  In the last few days and weeks, federal courts have issued rulings requiring Trump to restart DACA, fund sanctuary cities, stop asking about citizenship in the census, include transgenders in the interpretation of Title IX, reunite illegal alien “families” even where the adults are criminals who have already been deported, and so on.

Attorney General Jeff Sessions issued a statement on Monday criticizing the rash of judicial activism against the Trump Administration.  “We have recently witnessed a number of decisions in which courts have improperly used judicial power to steer, enjoin, modify, and direct executive policy,” General Sessions explained.

“This ignores the wisdom of our Founders and transfers policy making questions from the constitutionally empowered and politically accountable branches to the judicial branch,” he said.  General Sessions vowed that the “Trump Administration and this Department of Justice will continue to aggressively defend the executive branch’s lawful authority and duty to ensure a lawful system of immigration for our country.”

New lawsuits against policies Trump campaigned on are being filed by the Left nearly every day.  Last week four liberal-controlled cities – Baltimore, Chicago, Cincinnati, and Columbus – asked a federal court to force Trump to support Obamacare.

Imitating a familiar pattern pursued by liberals in other cases, the new lawsuit for Obamacare quotes out-of-court statements by President Trump as though they were evidence.  For example, the lawsuit demands relief because Trump has said that “essentially, we have gotten rid of” Obamacare.

The power vacuum on Capitol Hill encourages judicial supremacy, as courts see that Congress is not providing any check or balance to the overreach by the judicial branch.  Like unsupervised kids in a candy store, judges will grab as much power as they can until Congress checks their conduct.

The Supreme Court does too little, too late to rein in lower courts that legislate from the bench.  Deciding only 58 argued cases during its recently ended term, the Supreme Court has been barely more than a remote outpost that takes far too long to protect our Constitutional rights.

In the last year the Supreme Court has ducked issues and declined to accept appeals on anti-Second Amendment rulings upholding gun control, and an anti-First Amendment ruling censoring videos taken by pro-life David Daleiden.  This renders liberal Courts of Appeals the last word on key issues.

In a tactic known as forum shopping, Trump’s opponents file their lawsuits in courts where Democratic trial judges will likely rule in their favor at the district court level.  Then, a year or two later at the appellate level, the overwhelmingly Democrat-nominated judges in the Fourth and Ninth Circuits predictably affirm.

Trump ultimately prevailed when the Supreme Court reinstated his temporary, so-called travel ban from several hostile nations, but it took nearly a year-and-a-half to do so, even with the expedited attention that case received.  That wasteful litigation consumed more than a third of Trump’s entire first term in office, and far too much of his personal time, allowing uncertainty to persist and undermine other actions that Trump could have been taking for our country.

The Ninth Circuit presides over a fifth of our nation’s population – more than 64 million people – and more than two-thirds of its active judges were appointed by Presidents Clinton and Obama.  Despite seven vacancies on that Circuit for Trump to fill, the Senate has so far confirmed only one, a compromise nominee opposed by more than half the Republican senators due to his weakness on the Second Amendment.

More than a decade ago, Congress did take an important step to curb judicial hostility to the Second Amendment.  The Protection of Lawful Commerce in Arms Act (PLCAA) prohibits all courts, both federal and state, from entertaining lawsuits against gun manufacturers for crimes committed by their products.

This good law stands as a model of what Congress should also be doing to rein in the courts on additional issues where they are out of control.  Despite the resounding success of the PLCAA in achieving its stated goal to “preserve a citizen’s access to a supply of firearms and ammunition,” Congress has not yet expanded this approach to eliminate other judicial activism.

Immigration policy is an issue uniquely within the domain of the President and Congress, and courts should have little say in the matter.  Congress should take heed of Attorney General Sessions’ criticisms of judicial overreach on immigration, and withdraw the issue from the courts.

John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy work.

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