It is time to remove federal judges whose orders direct the president to perform unconstitutional acts or prevent the president from performing actions granted to him by the Constitution.
A current judicial order directs President Trump to continue Obama's DACA order, which has been determined to be unconstitutional by the Supreme Court. The judge's order is expected to be overturned by the Supreme Court.
There have been several earlier judicial orders to prevent President Trump's executive orders from halting certain types of immigration. Those judicial orders, and their Circuit Court appeals, have already been overturned by the Supreme Court.
Even though the cases have been properly resolved by the Supreme Court, the rulings by the federal judges appointed by the opposition party have temporarily impeded the proper exercises of the government.
A case could be made that the judges issued those orders as part of a "Resist" movement, knowing they would create havoc and that they would ultimately be reversed. Because removing a judge from office is not easy, judicial arrogance has led to such activism.
Such judges should be removed from office.
Two requirements make it such that removal from office is not easy. The Constitution requires that a judge can be removed by two steps. A judge must first be impeached by majority vote of the House of Representatives and then convicted by a two-thirds vote of the Senate.
Only fifteen judges have ever been impeached. Eight were convicted by the Senate and removed from office. Four were acquitted. Three resigned from office before trial.
So what are the solutions to judicial arrogance if removal from office is so difficult?
One way is for the Congress to create the same havoc for the federal judges as the judges create for the president. That is, to put individual judges through the financial costs, the judicial ordeal, and the public embarrassment of impeachment. As we have seen, three judges have resigned rather than face a trial by the Senate. However, arrogance is unlikely to be undone by embarrassment, especially when supported by a compliant media.
The second way calls upon a constitutional requirement of which few people are aware. It involves courage and integrity on the part of Congress itself to act.
Article II, Section 1 of the Constitution states, "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
In other words, lower courts such as the federal and appeals courts exist only by and at the will of the Congress. Therefore, the Congress itself may ordain the limits of the courts they have established and can modify those limits at will. Congress could ordain that only the Supreme Court, and not a lower court, may override an executive order.
The Congress should thus correct ongoing political attempts by activist federal judges who intentionally create instability by issuing unconstitutional orders they know are going to be reversed.
The third solution for judicial arrogance suggests that a single member of the federal judiciary should no more be able to direct the president of the United States than a single member of Congress can create a law. The analogy rests upon the equality of the three branches of government as established by the Constitution. Absent action by Congress, the president of the United States as amicus curiae (friend of the court) should challenge the constitutionality of the longstanding practice of a lone lower-court judge or an appeals court giving an order to a president of the United States.
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