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10 ways to reclaim stolen power from the courts

“Freedom is the right to question, and change the established way of doing things. It is the continuing revolution of the marketplace. It is the understanding that allows us to recognize shortcomings and seek solutions. It is the right to put forth an idea, scoffed at by the experts, and watch it catch fire among the people. It is the right to stick—to dream—to follow your dream, or stick to your conscience, even if you’re the only one in a sea of doubters.” ~President Ronald Reagan

It's high time for us to finally address the most pressing constitutional crisis of our time. Either we wake up and smell the stench from the bench, or we consign our entire future to a judicial oligarchy that has shredded fundamental rights, turned every word of the Constitution upside-down, granted itself more power than God. The judiciary at the height of its constitutional powers has co-equal abilities to interpret the Constitution in the small area of individual cases and controversies with legitimate standing. But now the courts have taken to themselves the powers of gods over our political and social questions.

It’s that simple: Either our system of government reflects the top of this graphic or the bottom. There is no middle ground. And until we resolve this constitutional crisis, nothing we do at the ballot box, in the states and the other branches of government, in the media, or in education will matter.

As we’ve established through an exhaustive series of articles, the federal judiciary is irremediably broken, it will not be fixed on Trump’s watch, and it is unlawfully wielding power that the Constitution does not accord it. It’s time for Congress to step onto the playing field.

Here are 10 options that Congress and the body politic as a whole can pursue to finally reassert their respective powers against the squatters of the judiciary against our Constitution, history, traditions, and values. Congress must return to its status as a co-equal player in constitutional interpretation, as was the reality until the Warren era in the ’50s.

1) Use the bully pulpit to unmask the courts. For members of Congress, the president, and the attorney general must first actually get on the playing field. They can begin by publicly delegitimizing unconstitutional decisions. Writers like myself shouldn’t be the only ones deconstructing these cases; Congress and the attorney general should write opinions shadow-boxing the courts on critical public policy issues. Professor Michael Paulsen of the St. Thomas School of Law suggests that Congress and the attorney general should each have respective “executive review” and “legislative review” offices to shadow and oppose the courts’ judicial review.

They should also take their cases directly to the American people, to help build the momentum and public support for Congress and the executive branch to stop obsequiously using their powers only in accordance with unconstitutional court opinions.

2) Limit the jurisdiction of Supreme Court. Article III, Section 2, Clause 2 of the Constitution explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court. This is plenary power and a complete remedy. The notion that Anthony Kennedy can redefine marriage and sexuality or grant citizen rights to illegal aliens or Somali Islamists and that there is nothing Congress can do to stop him is simply ignorant. As I note in Chapter 9 of my book, even John Marshall agreed the high court has no jurisdiction other than what Congress grants it (except for the few spheres of original jurisdiction established in Article III).

While Congress must respect any existing judgement granted to a particular plaintiff in a particular case, the legislative branch has the full authority to cut the legs out from under the decision by preventing it from becoming precedent prospectively. As Clarence Thomas said in a recent case, “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”

3) Abolish judicial review or curtail it for lower courts; require a super-majority for judicial review at the Supreme Court. While Congress wields tremendous power over the Supreme Court’s jurisdiction, it completely owns the lower courts. Congress can make, break, divide, or regulate them at will. After all, Congress created them. As part of the enumerated powers of Congress in Article I, Section 8 and the Judicial Vesting Clause of Article III, Section 1, the legislative branch has full authority over the creation of the “inferior courts and tribunals.”

As Edmund Randolph, the very first attorney general of the United States, said, "The Supreme Court, though inherent in the Constitution, was to receive the first motion from Congress; [and] the inferior courts must have slept forever without the pleasure of Congress.” How, then, could it be that a random district judge is accorded the full authority to place what is essentially a judicial veto on any piece of legislation passed by a state or Congress? Even if one believes in robust judicial review at the Supreme Court level, it simply makes no sense that a creation of Congress has that authority.

Second but just as vital: Judicial review even by the Supreme Court should be supported by a super-majority of the Supreme Court. Why should a simple majority of a deeply divided panel of unelected, life-tenured judges be able to override the majority of an elected Congress or state legislature? If we are going to place the judiciary atop the food chain of government, at least require the institution to speak with one voice.

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