Watch LIVE

Horowitz: Now the federal judiciary has forfeited its right to determine ALL political questions

Op-ed

So we're ignoring illegal court rulings in the future, right?

dkfielding/Getty Images

"Republicans believe that states are in charge of elections. … I'm having a hard time figuring out the basis for that lawsuit." ~Sen. Lamar Alexander, Meet the Press, Dec. 13, 2020

So Republicans plan to ignore every illegal court ruling overturning state voter integrity laws in the future, right?

Ever since I published my book on the judiciary in 2016, I've been asking: Is there anything that is out of bounds for a court to do, or are courts like an all-powerful God? Well, over the weekend, we got our answer.

We finally discovered an instance in which the courts will enforce requirements for standing and refuse to adjudicate broadly political questions. Now it's time for conservatives to treat every court decision that violates rules of standing and the principle of federalism as null and void. Will all these principled "conservatives" who are cheering the court's decision in the Texas lawsuit stand with us in opposing judicial supremacism in all forms?

In recent years, the federal courts have waded into every political issue imaginable. They have prevented states from enforcing federal immigration law, while not only greenlighting states to criminalize federal law, but preventing the federal government from cutting off funding to sanctuary states. They have prevented states from defining marriage, upholding basic sexuality, or placing commonsense health regulations on abortion clinics. They have prevented states from cleaning out homeless encampments and from simply declining to fund castration "surgery" in prison or through Medicaid funding. They have also prevented states from requiring able-bodied Medicaid recipients attempt to seek employment.

For a while, it appeared there was nothing a state (and even the feds) could do without a federal court violating the rules of standing to give some straw-man third-party organization (often on behalf of illegal aliens) standing to sue to overturn the outcome of a fundamentally political issue and decide it with finality.

However, those same courts have no problem when states thumb their noses at federal immigration law or when they violate every individual right known to man in under the guise of fighting coronavirus.

In other words, these judges believe in states' rights when the outcome benefits the Left, and they believe in a strong federal government with final court adjudication when it benefits the Left as well. They believe in protecting "rights" when they are invented, but not real rights spelled out in the Constitution. Heads the Left wins; tails we lose.

Which brings us to the Friday night decision not to take up the Texas lawsuit alleging that four states violated election law in a way that tainted the outcome of a federal election. Many conservative pundits and elected Republicans are cheering this decision as a much-needed exercise in judicial restraint, respect for state powers, and properly defending the rules of Article III standing. After all, we shouldn't have federal courts determining political questions, such as the results of a presidential race (never mind that the lawsuit was not seeking a determination on who won, a decision ultimately left to the state legislatures and congressional certification).

There is one problem with this line of thought. The only reason we are in the position we are today with a broken election system full of mail-in ballots and ballot harvesting is precisely because the federal courts officiously commandeered state election laws for the past generation. Yes, the federal courts have butted in to every state decision on election law – except those interventions were OK because they benefited Democrats.

Republicans have controlled many key state governments in Pennsylvania, North Carolina, Wisconsin, and Michigan from 2010 to 2018 and passed voter integrity laws or enforced existing ones during those years. Every step of the way, federal courts gave standing to straw-men plaintiffs to block every election integrity measure imaginable. In fact, to this day, Democrats hold the governorship in North Carolina solely because of ballot harvesting that is prohibited under state law but forced upon the state by the Fourth Circuit. To this day, photo ID is not required in North Carolina despite conservatives working hard to enact it into law. The same Fourth Circuit gutted it. Democrats also hold two extra House seats thanks to the Fourth Circuit destroying the election map.

Likewise, in Arizona, Republicans have controlled state government for as far as one can remember. Over the past generation, nearly every voter integrity law has been thrown out by the Ninth Circuit, often in cases where the laws at issue were approved by ballot initiative with overwhelming support. The Supreme Court has sided with the wayward lower court most of the time.

Every time Arizona has tried to stem the tide of illegal aliens, the courts have come after the state. This has created a cascading effect of illegal aliens being able to remain in large urban areas and be counted in the Census. Numerous pieces of federal legislation have been passed by a margin that is entirely garnered through counting of illegal aliens in the Census. How is that lawful?

Thus, the entire premise and precedent for the current electoral model that Democrats abused this year was created wholesale by the lower federal courts that the pathetic Supreme Court has failed to police. Specifically, in this election, the League of Women voters sued in federal court to have Pennsylvania's signature validation process on mail-in ballots countermanded (League of Women Voters of Pennsylvania v. Boockvar, No. 2:20-cv-03850-PBT, (E.D. Pa. Aug. 7, 2020)). As a result of that federal lawsuit, the Pennsylvania secretary of state made a settlement that unilaterally gutted state law, allowing hundreds of thousands of extra ballots to be counted without proper verification, which is likely why the rejection rate this year for mail-in ballots was impossibly low.

A similar settlement resulting from a federal lawsuit took place in Georgia as well (Democratic Party of Georgia v. Raffensperger, No. 1:19-cv-5028-WMR (N.D. Ga.)). As always, the federal courts tampered with every aspect of North Carolina's election process, but Democrats came up slightly short, although suspiciously close.

Which brings us back to the Supreme Court. Notice a pattern here? There never seems to be a problem of federalism and Article III standing when lower federal courts want to shred existing state election law in order to benefit Democrats. Somehow, the Supreme Court rarely reverses these opinions before the elections. Then, when we seek redress for the fallout that was largely enabled over the years, and during this particular election, from the federal judiciary's foray into state powers in the first place, we are told that the Supreme Court wants to stay out.

As we speak, a federal judge in Georgia is considering whether to add 200,000 voters to the Georgia voter rolls prior to the runoff elections. These registrations were removed pursuant to state voter integrity laws and section 8 of the motor voter law, which requires states to "make a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters." Watch for the same "principled" conservatives to have no problem with the Supreme Court "respecting" federalism by "staying out" of a state political fight when their own lower courts overturned state law to begin with.

This is not about Trump, and it's not even just about future elections. This is about a fundamentally rigged judiciary and political system that has one rule of engagement that is consistent: Heads the Democrats win, tails the people lose.

Republican establishment types will tell you to look forward to "the next election," when Republicans will win back a lot of power. Let's indulge this line of thought for a moment. Let's forget about the fact that Republicans can no longer win elections because of the election law fraud that is being enabled (and often perpetrated) by the courts and the political system. For argument's sake, let's say Republicans win back the trifecta control of government in Wisconsin, Michigan, and Pennsylvania in 2022 as they did in 2010. And let's also indulge the myth that somehow these Republicans will actually pass worthy legislation on numerous issues that are important to us. Just understand that every one of them will be "struck down" by the courts.

How do I know? This is what has already happened last decade, when Republicans won these states after 2010. I'll never forget the tears in the eyes of one North Carolina activist who fought so hard to pass photo ID requirements when she saw, following the Fourth Circuit ruling, a sign outside a polling station inviting people to vote without photo verification. Despite photo ID requirements being codified in the state's constitution, the federal courts have handed Democrats one victory after another. We can't even long for a better day or to perform better next time because we can no longer win elections due to the fraud, not to mention the fact that these very same courts that are so hands-off suddenly become hands-on when we gain power.

Phony conservatives and every Democrat seem to finally be espousing my view on the judiciary – the view of Abraham Lincoln. Lincoln rejected the notion that "the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions."

Well, just last week, a federal judge ruled that Trump must issue citizenship documents to illegal aliens granted amnesty by Obama. Where are the questions of Article III standing for illegal aliens? Where are the skeptics of redressability on how a court can wade into immigration questions or bind one president to the unilateral moves of a predecessor who said 22 times that his actions were illegal? "I am not king. I can't do these things just by myself," Obama declared in response to calls for him to grant amnesty that later became known as DACA.

In fact, Obama was right back then. Alexander Hamilton wrote in Federalist 69 when contrasting the power of a president to that of a king: "The one [a president] can confer no privileges whatever; the other [a king] can make denizens of aliens." Now we are to believe that a federal district judge has more power than a president or a king?

If we had a sane party of Republicans, they would use this ruling as an impetus to ignore every illegal federal court decision. They would adopt Lincoln's view as expressed in the sixth debate with Stephen Douglas in 1858: "Judge Douglas understands the Constitution according to the Dred Scott decision, and he is bound to support it as he understands it. I understand it another way, and therefore I am bound to support it in the way in which I understand it."

Then again, we don't have any party today that cares about the Constitution or is willing to fight for it on any issue. We must all look beyond the idolatry of the Republican Party and a "conservative" Supreme Court if we are to maintain some semblance of republicanism in any part of this country.
Most recent
All Articles