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Congress Can END the Tyranny of the Courts TOMORROW

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No, the Constitution doesn’t vest the lower courts with the power to immediately shut down our sovereignty. Congress has complete control over courts’ subjects of jurisdiction, as well as the appellate jurisdiction of the Supreme Court. This was made evident by a pair of high court opinions issued this week. These cases were relatively low-profile, but if Congress were paying attention, these cases should provide a blueprint for dealing with the political tyranny from the lower courts.

Tuesday, the Washington Times published an analysis of a trend we’ve been observing here for quite some time: How district judges have illegally seized the weapon of nationwide injunctions to place a national, illegal veto on every practice, tradition, law, and policy under the sun. The article quotes from legal scholars noting that this trend is very new and it has expanded the role of a court from settling disputes between two plaintiffs to essentially vetoing and determining national policy.

Here’s the problem in a nutshell: Leftist organizations can take any executive action and find a radical district judge within a liberal circuit to enjoin the entire practice nationwide and automatically win the appeal. They get to determine where to litigate any issue that is national in scope and will never take it to a circuit where they will lose. Thus, none of the good judges Trump is appointing in places like the Fifth and Eight Circuits will ever hear these cases. The Left wins every time, and there is never a circuit split, so the Supreme Court takes up appeals slowly, if ever. This is how we have the most extreme judges shutting down national policy and violating Supreme Court precedent and rarely being rebuked before their edicts do irreversible damage to our country. It also has the effect of swaying public opinion against a policy, because voters are treated to constant headlines of “Trump’s policy struck down,” or “Another Trump action ruled unconstitutional,” even though the Supreme Court justices would eventually overturn it if the case actually came before them.

Congress could simply clarify, in the Rules Enabling Act governing the administrative procedures of the courts, that the courts lack any power to issue nationwide injunctions beyond the individual plaintiff. Dave Brat’s bill does just that.

But if members of Congress were paying attention to the Supreme Court this week, particularly to Justice Thomas, they would see that their power over the courts is much more expansive than they think.

Ideally, the plain language of Article III Sec. II, along with its robust history, should be enough for Congress to remember that it has the power to determine any subject-matter jurisdiction and rules of standing before a federal court. But we all know that the Constitution is no longer the law of the land; the Supreme Court is. So, let’s review what the Supreme Court said this week.

Patchak v. Zinke

Patchak v. Zinke was a very complex multi-tiered litigation by a Michigan private landowner who sued the interior secretary for taking over neighboring lands into a trust so that an Indian tribe could build a casino. The details of the underlying case are not important for our purposes. What is relevant is that after the first round of litigation over whether the plaintiff had standing, Congress passed legislation kicking all federal courts out of this arcane issue, something we have long called for on important political issues. In 2014, Congress passed the Gun Lake Trust Land Reaffirmation Act, which stated that any legal action “relating to the land [in question] shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Thus, Congress categorically blocked all federal courts, including the Supreme Court, from adjudicating any claims about this land.

On Tuesday, the high court released an opinion, 7-2 in judgement and 6-3 on the merits, in favor of the act of Congress. The majority ruled that Congress can categorically strip the courts of any jurisdiction over a particular subject, even when it is clearly intended to influence the outcome of only one particular case that is already in the process of adjudication. All nine justices affirmed the plenary power of Congress to strip jurisdiction over entire categories of subject matter from the courts. The only disagreement was whether Congress can use jurisdiction-stripping to reverse a specific case that is already pending in court. Justices Roberts and Gorsuch dissented because they felt this law went too far and was tantamount to actually engaging in the judicial power. Justice Sotomayor agreed with the rationale of the dissent but sided with the majority in upholding the act of Congress for a technical reason. Yet the six other justices were clear that even in this case, Congress was exercising its legislative authority over the judiciary, not actually ruling in favor of a particular plaintiff, even if indirectly that is the outcome and even the intent of Congress.

Writing for the majority, Justice Thomas observed:

Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.

And more specifically to this case:

[T]he legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.

In other words, while Congress can’t exercise the judicial power (“In Smith v. Jones, Smith wins,” for example), the legislature has the power to exercise full control over the judicial branch of government. Contrary to what you hear in the political class, the judiciary is not supreme or even equal, at least not in the traditional sense. And if Congress exercises its legislative powers and Art. III Sec. II powers to make “exceptions and regulations” to the jurisdiction of the courts, then courts cannot rule on that particular matter.

Specifically related to immigration, there already are existing statutes that do just that, yet they need to be asserted more clearly and expanded. The Department of Justice won’t even assert them in litigation. Which brings me to the next major opinion from this week.

Jennings v. Rodriguez

In 2013, an extreme district judge in California gave standing to a criminal alien going through deportation proceedings to sue on behalf of all detained aliens and demand bond hearings. The district judge and the Ninth Circuit essentially ruled that criminal aliens (whom even Obama wanted to deport) must be given bond hearings every six months to be released into our communities, even though they are the consummate flight risk. They, of course, applied a nationwide injunction.

Thankfully, after this injunction hampered for years our interior enforcement and turned America into a dumping ground, we got relief from the Supreme Court, which voted 5-3 (Justice Kagan had to recuse) to remand the case back to the Ninth Circuit.

Clarence Thomas and Neil Gorsuch issued a concurring opinion, noting that the courts should never have granted standing to this alien to begin with and that the case should immediately be dismissed, not just remanded. Existing law (8 U.S.C. §§ 1252(b)(9), 1226(c)) already kicks the courts out of this case altogether, in their opinion. Thomas seemed bewildered that the DOJ didn’t even assert this argument. This is a point I’ve made, that the DOJ didn’t assert a similar jurisdiction-stripping provision (§1201(h)(i)) against litigation pertaining to denial of visas as part of the immigration pause executive order.

Justice Alito, writing for the plurality, disagreed on technical grounds because he read the statute differently, but it is clear that five justices believe Congress clearly has the authority to kick the courts completely out of most immigration litigation as long as the statute does so clearly.

The three liberals, of course, made the argument that denying bail to criminal aliens in deportation proceedings would violate the Constitution (their version of it), and as such, Congress could not pass a law sidelining them from such litigation. But we already knew they would say that. However, even under their system, although bail against indefinite detention without deportation is a constitutional right, there is no right to immigrate or not to be deported, and there is no reason Congress cannot strip the courts of the power to adjudicate such cases.

It is more clear than ever now that in cases pertaining to life, marriage, immigration, election law, religious monuments, and religious liberty, five justices should easily agree that Congress can certainly prospectively strip the courts of jurisdiction when the statute is not aimed exclusively at a particular pending case as a means of siding with one party. And most certainly Congress can do so just for the lower courts, which have posed the most serious problems for our country. Even the four most liberal justices, who assert that Congress can’t strip the Supreme Court of power to hear an appeal on what they deem is a constitutional right, must agree that since Congress could abolish the lower courts altogether, Congress can strip the lower courts of jurisdiction while leaving an avenue to appeal directly to the Supreme Court.

So why is almost nobody in Congress or at the White House demanding legislation that says, in effect, “any legal action relating to litigation against a deportation or the granting of affirmative rights to illegal aliens shall not be filed or maintained in a Federal court and shall be promptly dismissed”? Or on life and Christian memorials?

The sad thing is that so many members of Congress are ignorant about the powers of their own branch of government. Thus, we will continue to be ruled by unelected federal judges who serve for life. (For more from the author of “Congress Can END the Tyranny of the Courts TOMORROW” please click HERE)

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SCOTUS Signals Bad DACA News for Trump Admin

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The Supreme Court appears poised to reject the Justice Department’s request to overturn a lower court order requiring the continued administration of the Deferred Action for Childhood Arrivals Program.

The high court’s Friday afternoon orders list showed no action on the petition, a strong indication it will be denied.

Scheduling constraints require the court to act quickly if they intend to hear the case before adjourning this summer. The Supreme Court sits from early October to late June, and the schedule for a given term is generally set by January.

If the justices planned to add a case to their docket at this late juncture, they would do so quickly.

The court may yet grant the request, but the odds decrease with time.

A denial would not seriously hinder President Donald Trump’s long-term plans to wind down the program.

Judge William Alsup of the federal trial court in San Francisco, California, found that the Trump administration’s termination of DACA was based on a flawed legal premise, rendering the decision “arbitrary, capricious, an abuse of discretion, (and) otherwise not in accordance with law.”

The order does not require the administration to process new applicants for the program.

In an extraordinary procedural move, the government appealed directly to the Supreme Court.

Under normal procedure, the government would challenge Alsup’s order at the 9th U.S. Circuit Court of Appeals, a principle antagonist to Trump’s ambitions throughout his presidency.

Solicitor General Noel Francisco, the government’s Supreme Court lawyer, argued the case required the tribunal’s urgent attention, as Alsup’s decision “requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens.”

If the justices turn down the government’s request, the Justice Department will revert to ordinary procedure and appeal to the 9th Circuit.

If the 9th Circuit upholds Alsup’s ruling, the government can then return to the Supreme Court.

The University of California system brought the suit challenging DACA’s termination.

The system is led by Janet Napolitano, the former secretary of Homeland Security who presided over DACA’s original promulgation during former President Barack Obama’s administration.

A version of this article appeared on The Daily Caller News Foundation website.

Supreme Court to Decide If Boy’s Legal ‘Biological’ Parents Are Two Lesbians

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The Mississippi Supreme Court heard arguments last week about whether a boy born to a lesbian couple should be legally considered the biological son of his mother’s female partner.

Because of the nature of the child’s conception and the relationship of the adults in his life, the story is complicated.

The two women who were “married” chose to have a child that would be conceived in one of them via anonymous sperm donation.

The boy is now six years old. His mother’s “ex-spouse,” who helped raise the child from birth, sought to be recognized as a biological parent when the two women divorced.

“Kimberly Strickland Day, was impregnated through assisted reproduction technology whereby donor sperm was combined with her harvested egg and the embryo surgically implanted,” reports the Jackson, Mississippi Clarion Ledger. “The couple separated in 2013, and their divorce was finalized last year. A Mississippi court granted the first same-sex divorce in 2015.” (Read more from “Supreme Court to Decide If Boy’s Legal ‘Biological’ Parents Are Two Lesbians” HERE)

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Even Supremes Wonder Why Abortionists Protected by Gag Order

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Even U.S. Supreme Court justices are wondering why members of the National Abortion Federation are being protected by a California judge’s gag order on an undercover video in which an industry insider admits it’s “a person, it’s killing.”

The American Center for Law and Justice has confirmed the court has ordered the National Abortion Federation to respond to ACLJ’s petition for the court to review and reverse the order.

The undercover video was in a series released in 2015 by the Center for Medical Progress that show Planned Parenthood executives and other abortion-business insiders admitting they sell unborn baby body parts for profit.

The FBI is investigating Planned Parenthood, and Attorney General Jeff Sessions confirmed during a recent hearing that a senatorial probe could be the basis for eventual charges against the abortion-industry giant.

The current case is over an undercover video capturing statements from members of the National Abortion Federation. (Read more from “Even Supremes Wonder Why Abortionists Protected by Gag Order” HERE)

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Did Supreme Court Cancel Judges’ Free Speech Rights?

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A small-town magistrate who lost her job after explaining to a reporter that her Lutheran faith would not allow her to perform a same-sex wedding is petitioning the U.S. Supreme Court.

Ruth Neely is appealing a Wyoming Supreme Court decision against her that if allowed to stand, “poses a broad threat to judges’ expressive freedom, reaching far beyond the circumstances of this case,” contends the petition submitted by her legal team, the Alliance Defending Freedom.

Neely was publicly censured by the Wyoming Commission on Judicial Conduct and Ethics and forced out of her job as a magistrate for explaining to reporter Ned Donovan of the Pinedale, Wyoming, newspaper that her faith precluded her from performing same-sex ceremonies

Donovan told an editor that he wanted to get Neely “sacked,” according to the complaint.

Neely’s comment to the reporter was brought to the attention of Wendy Soto, the executive director of the ethics commission and a former board member of the LGBT advocacy group Wyoming Equality. (Read more from “Did Supreme Court Cancel Judges’ Free Speech Rights?” HERE)

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On “Travel Ban,” Supreme Court Backs Away From Brink of a Constitutional Crisis

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As the AP reports, the U.S. Supreme Court has thrown out most of the lower court decisions that crippled President Trump’s immigration decisions (that is, his “travel ban”). This is good news not just for fighting terrorism. It’s huge for fans of the separation of powers, the rule of law, national security, and democratic lawmaking. Read David French’s excellent legal analysis of why each of those claims is true.

Essentially, the lower courts vastly overreached the legitimate function of jurists. Their job was to scrutinize the laws to see whether President Trump’s decision to restrict travel from terrorist-ridden hellholes was Constitutional. Instead, they regurgitated his campaign rhetoric and pored over his Twitter archive to scrutinize his alleged motives. They invented imaginary rights for foreign residents. They granted legal “standing” to law firms who recruited foreign clients. Attempting to reverse the effects of a presidential election, they usurped the legitimate powers of the president.

The executive branch has broad Constitutional and legislated authority to protect national security. Immigrants have zero presumptive right to enter the United States. It would be perfectly Constitutional, though stupid, to admit them based on aesthetics (that is, a “Melania” standard).

Avoiding a Constitutional Crisis

Had the Supreme Court followed the lower courts’ lawless precedent on this case, it should have provoked a Constitutional crisis — in the form of GOP-backed bills to challenge courts’ jurisdiction, or term-limit SCOTUS members. I think that even the liberal justices on the Supreme Court saw that, which is why most of them blinked and backed away from the brink.

With many crucial issues on the docket, that crisis still might come. There is just one way to avoid it: If the president stays true to his campaign to appoint only strict constructionists to the courts. Or else if conservatives cravenly surrender.

I wrote before the 2016 election that the race was mostly about the courts. Since Roe v. Wade, the left has relied on the judicial branch to override voters’ will on crucial issues. Progressives wield vast, overweening power. They micromanage the media. They smother and censor the colleges. They terrorize big business via pressure campaigns.

Still, sometimes all that doesn’t turn out to be enough. We saw that in the recent Georgia election: Jon Ossoff called in Planned Parenthood as his Death Star, and still lost to the pro-life Karen Handel.

The Left’s All Purpose Plan for Overriding the Voters

So where they can’t get the votes, as they couldn’t on same-sex marriage, leftists follow this playbook:

Pretend that the U.S. Constitution enshrines whatever “basic rights” that academic elites invented five minutes ago — even those that would have horrified every one of the U.S. Founders, down to the last pallid Deist.

Claim that “international norms” from foreign courts or the United Nations have binding force in basic American laws.

Convince Democrat appointees on lower courts to overturn or stay a democratically enacted law. Or a legitimate use of presidential authority. Because it violates those invented rights.

Pretend that each case is the same as Brown v. Board of Education. And each of their opponents is no better than a bigoted Southern sheriff. Imply that those who put up a fight will end up as disgraced and marginalized as white segregationists.

Win in the Supreme Court by a narrow margin. Then despite the learned dissents by distinguished jurists…

Pretend that anyone who still opposes the decision is an uncivilized Neanderthal. Their organizations are “hate groups.” Except if they’re Muslim. Those groups are exempt, because they’re so peaceful that we don’t want to provoke them.

Use this brand-new consensus to browbeat churches into rewriting the Gospel. Then presto-chango, 2000 years of Christian belief and practice is discredited.

Rinse and repeat.

This strategy worked amazingly well on same-sex marriage. The narrowly decided and crudely anti-Constitutional Obergefell decision is now being foamed into every nook and corner of the culture like toxic asbestos insulation. “Mainline” churchmen (Catholic and Protestant alike) are falling over themselves to accommodate it. They’re wearing out holes in their clerical shirts from patting themselves on the back for groveling before Caesar.

We Will Fight in the Wedding Chapels

But the same strategy backfired on abortion. The pro-life movement is gaining in power, popularity, and influence. Even the socially laissez faire President Trump seems like a genuine convert on the topic.

So there’s no need to despair. And no excuse to retreat into some “Benedict Option” ghetto, which would always be just one court decision away from the cops coming to remove Christian kids from their parents’ custody. Which is happening not in North Korea but in Canada.

We should welcome lawful decisions, and fight lawless ones tooth and nail. We cannot even give up on seemingly implausible goals like overturning Obergefell, and returning marriage jurisdiction to the states. That decision, as Justice Roberts (hardly a right-wing extremist) warned, planted religious liberty time bombs throughout our legal system. Christianity cannot coexist with legal same-sex marriage forever. One of them or the other will end up legally hamstrung. America needs to pick between them.

Yes fixing Obergefell seems out of reach and hopelessly unpopular. But then, in 1973, Roe v. Wade seemed untouchable too. (For more from the author of “On “Travel Ban,” Supreme Court Backs Away From Brink of a Constitutional Crisis” please click HERE)

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The Supreme Court Has a Chance to Right a Long Standing Wrong

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Last week, the U.S. Supreme Court heard oral arguments in Trinity Lutheran Church v. Comer. The case stems directly from religious bigotry in the mid-1800s.

In 2012 Trinity Lutheran Church in Missouri applied for a state grant to resurface their playground to make it safer. The church’s pre-school uses the playground and it’s also available to the local community. Most of the children in the pre-school and neighborhood do not attend the church.

Missouri denied the funds. They claimed state law prohibited them from aiding “any church, sect, or denomination of religion.”

And so on to court and now to the U. S. Supreme Court. The case offers the Court the chance put right the wrong imposed on religious believers in Missouri 140 years ago.

That wrong is called the Blaine Amendment.

Catholic Immigrants Found Catholic Schools

By the mid-1800s, in the wake of the Second Great Awakening, the religion of the American people was for the most part lowest-common-denominator (LCD) Protestantism. Charles Finney, the most prominent evangelist during the awakening, summed it up:

Persons of all denominations, forgetting their differences, gave themselves to the work. They all preached the same thing, the same simple Gospel. They held out substantially the same truth: Christ died to save souls; you may be saved; you are a sinner and need to be saved; now, will you come to Christ and submit yourself to God? This was about the amount of instruction.

That LCD Protestantism influenced all of American public life including public education. Since Protestantism was part of what it meant to be a real American, public schools promoted it with enthusiasm.

During that same era, the country experienced great waves of Catholic immigrants. For Catholics, Mr. Finney’s “simple gospel” was true as far as it went. It just didn’t go far enough. In fact, they found it so inadequate and, in the public schools, so objectionable that they founded their own schools. These would promote Catholic faith, education, and identity.

Keeping “Sectarian” Catholic Schools at Bay

Protestant America was never very keen on Catholics, but this went beyond too far. There had to be a way to make it harder for poor Catholics to send their children to these new “sectarian” Catholic schools. How could Catholic children be forced into the public schools with their “non-sectarian” Protestant bias so that they could become good Americans — and good Protestants?

To save the Republic from rampant Catholicism, the Order of the Star Spangled Banner was formed in 1849. Their core issue was the abolition of slavery, an extremely good cause, but they fueled that good cause with anti-Catholic bigotry. The Order was a secret society. When asked about it, members were bound by oath to say, “I know nothing.” Hence, they were called “The Know-Nothings.” Politically they were the American Party.

Their idea of the First Amendment was to keep Catholic “sectarianism” at bay while strengthening “non-sectarian” LCD Protestantism.

This was nearly enshrined in the U. S. Constitution in 1879. President Ulysses S. Grant proposed an amendment banning “sectarian” religious instruction in public schools and the use of tax dollars to in any way support “sectarian” schools. The amendment was named for James G. Blaine who had been Speaker of the House.

Protestants and non-religious people loved the amendment. While it was never ratified, all but eleven states adopted and still have Blaine Amendments or similar legislation. Missouri is one of them.

Danger for All Religious Groups

What Grant, Blaine, the Know-Nothings, and the amendment’s other supporters didn’t take into account is that “sectarian” is in the eye of the beholder.

They thought they were safeguarding the republic from the dangers of “rum, Romanism, and rebellion.” Instead they created a legal trap for religious believers including the good folk at Trinity Lutheran. Today when all religion is regarded as “sectarian” it’s possible to exclude all religion from government benefits.

Now I know it’s a mistake to judge those in the past by our standards. It’s easy to second-guess a 140-year old decision with 20/20 hindsight. Still, the Blaine Amendments give states the power to discriminate against any or all religious groups. That exacts a steep tax on freedom as Trinity Lutheran and many others have discovered.

Those who observe the Supreme Court seem to think that the Court will find for Trinity Lutheran. Besides, the new governor of Missouri has changed the policy. One way or the other, Trinity Lutheran will receive their grant.

What the Court should do, if it can, is declare Blaine Amendments across the country unconstitutional. That would set right a long standing injustice. (For more from the author of “The Supreme Court Has a Chance to Right a Long Standing Wrong” please click HERE)

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Supreme Court Rejects Challenge Over Merrick Garland Nomination, Shows Why ‘Emoluments’ Suit Against Trump Will Fail

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On Monday morning, the U.S. Supreme Court declined to review the case of Michel v. McConnell, where the courts below rejected a citizen’s effort to sue senators for inaction on D.C. Circuit Chief Judge Merrick Garland’s nomination to the Supreme Court.

The lower courts’ opinions explain why another controversial dispute, Citizens for Responsibility and Ethics in Washington (CREW) v. Donald J. Trump, will also fail—with only days left until the government’s response is due in that case.

Disappointed with the process of the Senate’s refusal to hold a vote on Garland’s nomination to the Supreme Court, Steven S. Michel sued Sens. Mitch McConnell, R-Ky., and Chuck Grassley, R-Iowa, for allegedly violating his constitutional right “to elect his senators by depriving his home-state senators of a voice” in the nomination process.

A Political Issue

The U.S. Court of Appeals found, as did the district court below, that Michel “lacked standing to bring this action because he failed to demonstrate an injury in fact.” It found his “alleged injury—the diminution of the effectiveness of his votes for Senators—is ‘wholly abstract and widely dispersed.’”

As the district court wrote, Michel suffered only “the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere,” not the courts. The Supreme Court appropriately denied Michel’s petition for review.

Lawyers with CREW face similar problems in their lawsuit, filed in January in the Southern District of New York, against President Donald Trump, because they also raise claims that do not touch their lives in any materially different way from any other citizen—except, perhaps, at the ballot box.

CREW argues that Trump violates the U.S. Constitution’s little-known Foreign Emoluments Clause whenever any of his businesses engage in any commercial transaction with any foreign state agent.

For several reasons related to its text and history, it is improbable that the clause—which was designed to keep ambassadors off of foreign states’ doles—is that broad. Nor is it so selective: Past presidents from George Washington to Barack Obama would likely have violated CREW’s far-reaching interpretation of that clause (explained here).

A ‘Silly’ Claim

As Michel v. McConnell clarifies once again, standing requires a plaintiff to show a specific and concrete injury—not a mere distaste for or disagreement with a politician. CREW claims, however, that Trump has injured the group because the costs it absorbed in suing him “diverted” resources it could have used to sue other politicians for ethics violations.

The injury CREW alleges is roughly equivalent to the “injury” that its complaint has imposed on the court and the Trump administration—which too must divert scarce governmental resources to respond to and hear the suit. Stanford Law School professor Michael McConnell told CNN, “The idea that a group has standing because it has to spend time on this more than other things is just so silly that I can’t believe they put it on paper.”

Well before Michel v. McConnell, the Supreme Court had “repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.” And in Clapper v. Amnesty International USA (2013), Justice Samuel Alito wrote that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves.”

The lawyers at CREW seek to avoid Michel’s fate by arguing that they are not suing as individuals, but as an organization. They base their argument on two cases: Havens Realty Corp. v. Coleman, a 1982 Supreme Court decision, and Ragin v. Harry Macklowe Real Estate Co., a 1993 opinion of the U.S. Court of Appeals for the 2nd Circuit.

Neither does the job.

Both cases arose under the Fair Housing Act of 1968, in which Congress sought to end racially segregated housing. The law authorized citizens to bring civil lawsuits and lowered ordinary standing requirements in order to more liberally enforce remedial policies.

In Havens Realty Corp., Justice William Brennan, writing the majority opinion, stated that “Congress intended standing under [the law]” to be lax, and “[w]ith this understanding,” found that a small nonprofit, Housing Opportunities Made Equal (HOME), had standing to sue the Havens Realty Corp. One of the latter’s employees denied housing to the former’s client on the basis of race, which compelled HOME employees “to devote significant resources to identify and counteract … racially discriminatory steering practices”—not to its ordinary “counseling and referral services.”

The very discrimination the law barred was hitting HOME’s bottom line, and HOME asked the court only to return “lost” funds and litigation expenses.

CREW’s lawyers, by contrast, argue that they cannot as robustly fulfill their mission to sue other politicians when they voluntarily pay to sue a politician. And unlike HOME’s humble request for sunk costs, CREW seeks broad declaratory and injunctive relief designed to transform novel and far-reaching constitutional theories into binding law.

In a concurring opinion, Justice Lewis Powell provided another reason why CREW’s reliance on Havens is misplaced. The district court had originally dismissed HOME’s lawsuit because the group lacked standing. And by the time their case reached the U.S. Supreme Court, Powell wrote, HOME had advanced only “meaningless averments concerning the disputed question of standing.”

That does not bode well for CREW.

Ragin likewise is of no help to CREW.

Like CREW’s case, Ragin was filed in federal court in the Southern District of New York. There, “individual plaintiffs [testified] that they were offended when they saw” housing advertisements featuring only white models, and filed suit under the same law.

The court saw “no significant difference between the statutorily recognized injury” in Havens and Ragin. In fact, it cited Havens for “the long-held principle that” the kind of injury the Supreme Court found absent in Michel v. McConnell “may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”

Because CREW’s lawyers do not claim that Trump has violated their rights under the Fair Housing Act or any other statute that might grant them standing, it is unclear how these cases support them. The opposite may be true.

A Tidal Wave of Lawsuits

Powell’s concurrence in Havens notes “a high price” to the liberal pleading standard in that case “in terms of a severe imposition on already overburdened federal courts as well as unjustified expense to the litigants.”

If the courts were to change the well-settled standing rules in CREW’s favor, then any organization—and maybe even Michel—could get away with suing any politician or group of politicians because (1) the organization disagrees with them and (2) filing a lawsuit costs money.

If that were so, the judiciary would likely face a tidal wave of lawsuits and few federal policies would ever be implemented without first having to clear hurdles erected by some angry and litigious group or individual (although the Center for Consumer Freedom notes that CREW, for its part, almost exclusively sues Republican officials).

For these reasons, Robert Kelner, a partner at Covington & Burling, said that CREW’s standing claim “barely passes the laugh test,” and “[t]he courts will toss this one out.” Michel v. McConnell shores up that bet. As Powell stated in his Havens concurrence: “One can well understand the impatience of the District Court that dismissed the complaint.” (For more from the author of “Supreme Court Rejects Challenge Over Merrick Garland Nomination, Shows Why ‘Emoluments’ Suit Against Trump Will Fail” please click HERE)

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‘Circuits’ or ‘Circuses’? Here’s Why We Desperately Need Judicial Reform at the Circuit Court Level

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With Supreme Court decisions erroneously regarded as the supreme law of the land instead of the Constitution, everyone on the Right is clamoring to ensure that Trump makes the best Supreme Court pick(s) possible. But given that well under one percent of all federal civil and criminal cases make it to the Supreme Court, decisions coming out of the 13 federal courts of appeals ostensibly (and again, erroneously) serve as “the law of the land” for many critical social and political issues, as we so painfully witnessed with last week’s “9th Circus” ruling.

That is why it is at least as an important to fill the federal circuits with originalists as it is for the Supreme Court. However, if Trump is going to leave his mark on the judiciary, that would require taking bold measures to overturn established traditions so that each appeals court nominee would be more in the mold of Clarence Thomas than even a Neil Gorsuch, much less a John Roberts or Anthony Kennedy.

Why the U.S. Court of Appeals is so vital

For those paying attention to how a mere district judge in one bad circuit can violate the national sovereignty, you need no tutorial on the importance of the lower courts.

In 2015, 54,244 cases were filed in the 12 regional courts of appeals (not including the specialized appeals court for the Federal Circuit) out of a total of 361,689 that began at the district level. At the same time, only about 80 cases were granted full review by the Supreme Court. In other words, the federal courts of appeals are ostensibly the court of last resort for most federal cases. And given that the Left has successfully redefined the Constitution, almost every political issue has become a federal case.

Even though many of the major cases broadly affecting public policy are granted review by the high court, many languish in the lower courts for years and never make it to the Supreme Court. Moreover, the Supreme Court is clearly influenced by the jurisprudential momentum of the lower courts. Given that most of the circuits are full of post-constitutionalists who make Anthony Kennedy look like James Madison, it creates a peer pressure in the legal community to move away from the Constitution as written.

Remember, gay marriage didn’t happen in a vacuum with the Obergefell case. Almost every district court and all but one of the circuits redefined marriage in one of the most anti-constitutional opinions of all time. We are witnessing a similar trend with lower courts chipping away at the “plenary power doctrine” on immigration in recent years.

Furthermore, justices will rarely take up a case expeditiously when there is no split decision among at least two circuit courts. Given that the lower courts are in such bad shape — with such a dearth of originalists — conservatives can rarely win in even one circuit on such bedrock issues as voter ID, religious conscience, and an array of immigration issues. The lower courts tee up the contours and the dynamics of the cases that reach the high court. Therefore, if we fail to change the personnel and the procedures of the lower courts, another two solid originalists on the Supreme Court (assuming one of the liberals dies or resigns from office) would have only a limited effect.

Keep in mind that most of the major cases of consequence pending before the Supreme Court have been appealed by conservatives because of bad lower court decisions. The tyranny begins and usually ends in the circuits. Given that Republicans have control of the federal government and most state governments, we will only be playing defense in the lower courts because that is where the Left will plant their flag, even more so than during the Obama era.

Where the circuits stand: An anti-constitutional circus

It’s not just the 9th Circus.

You could probably count on your fingers the number of true originalists (à la Clarence Thomas) on the circuit courts. While it’s arduous to game out the “ideology” of each judge and circuit, here is my preliminary attempt at an overview of the circuits.

First, we will begin with this infographic detailing the number of Republican appointees and Democrat appointees by circuit among active judges (not including semi-retired “senior judges”). The graphic also shows the strong influence of Obama’s eight years on the appeals courts and the immediate vacancies that can be filled by Trump.

crgraphic_20170213appointees

A few observations stand out.

1. Among active judges, Democrats now have an outright majority on nine of the 13 circuits.

And as we will explain in a moment, the courts are in worse shape than this topline number would suggest because almost every Democrat-appointee is a post-constitutionalist while only half the GOP-appointees are conservatives and only relatively small number are true originalists. Just consider how two GOP-appointed judges were already involved in the immigration ruling, one of the most radical and harmful decisions of all-time.

2. There are 20 vacancies that Trump can and should fill immediately.

But Obama’s presidency was so strategic that it will take a long time to swing back a single circuit. Only 10 of those 20 are Democrat vacancies that would tilt the balance of a seat and most are not in circuits that will fundamentally alter the balance of most three-judge panels.

3. The all-important D.C. Circuit is now 7-4 majority Democrat appointees, with four judges appointed by Obama alone.

The D.C. Circuit is the second most influential court in the land on constitutional issues. Worse, while there are some solid senior judges, Janice Rogers Brown is the only real originalist left among the active judges, with Brett Kavanaugh a mostly reliable conservative. The D.C. Circuit is going to be a dumpster fire for the indefinite future. Moreover, if you drill down into the district level, the District Court for the District of Columbia has an 11-0 Democrat majority among active judges!

By the middle of the year, when all the current vacancies take effect, there will be 90 Democrat appointees, 69 GOP appointees, and 20 vacancies among active seats on the appeals courts. However, the circuit courts are really in much worse shape than even the top line numbers would suggest.

Remember, almost all of the cases in the appeals courts are decided by a randomly selected three-judge panel, which also includes the senior judges (although their caseload is reduced in varying degrees). While it is possible to request a full en banc review of a case by the full circuit, those reviews are relatively rare in most circuits. Due to the clear Democrat majority on nine of the circuits and the lack of originalists on most of those panels, the legal Left is almost always assured a favorable panel for whatever they are looking to do: redefine marriage, infringe upon religious liberty, throw out abortion regulations, block photo ID, etc.

On the other hand, we’d be lucky to find 15 originalists on the appeals courts who are every bit as conservative as the 90 Democrat appointees — and a number of Republican appointees — are liberal.

Now let’s take a look at the four circuits where there is a supposed GOP majority:

7th Circuit

This is the easiest one to game out. The 6-3 GOP majority is extremely deceiving. This circuit is home to the infamous Richard Posner, a Reagan appointee who quite literally believes that the Constitution as adopted is outdated and should be disregarded. He wrote the 7th Circuit’s tyrannical gay marriage opinion, among many other bad decisions.

Only two of the nine active judges can be considered reliable originalists across the board: Michael Kanne and Dianne Sykes. While many conservative legal theorists have respected Frank Easterbrook for many years, he has shown that he doesn’t believe in an individual right to bear arms. The rest of the Republican appointees range from progressive to unreliable. Thus liberals can pretty much rely on a favorable three-judge panel for almost anything they want.

6th Circuit

The 9-5 majority of GOP appointees is very misleading if one thinks this is an originalist-dominated circuit.

First, Judge Helene White, although appointed by Bush, is really a liberal Democrat who was selected by Michigan’s two Democrat senators as part of a deal. Jeffrey Sutton, another W appointee, wrote the court’s opinion upholding Obamacare. Out of the seven remaining GOP appointees, only Alice Batchelder could be counted among the most reliable originalists with a few others leaning conservative, such as Raymond Kethledge. Another conservative, Danny Boggs, just retired, so at best his vacancy will be a wash.

Thus, between the liberal active judges and a number of other liberal senior judges in this circuit, it’s hit or miss for conservatives in terms of getting a reliable three-judge panel. In fact, the far Left recently got a three-judge panel to say that transgenderism is settled law and helped promote Jill Stein’s crazy recount in Michigan!

5th and 8th Circuits

The only two circuits that could remotely be considered conservative are the 5th and 8th circuits. However, even the fifth is not as good as its numbers would suggest. The panel certainly has its share of solid judges, with Edith Jones, Priscilla Owen, Jennifer Elrod, and Jerry Smith. But last year, conservatives couldn’t even get voter ID past the full panel because a few GOP appointees joined with the Left.

The 8th Circuit is probably the best panel in the country. However, that makes the three vacancies on the court somewhat moot because they’d be better served on other courts.

The balance of power will not shift very soon

As you can see, although there is much hype surrounding the more than 100 vacancies on the court, they will not swing the balance in terms of the circuits. Only 20 of the vacancies are on appeals courts, of which only 10 are Democrat seats, and many of them are on circuits that are irremediably broken or on the 8th Circuit, which is already good.

Moreover, the prognosis for the future is grim. Many Democrat judges will view Trump as anathema that they will not retire under his watch. A quick glance at the vacancy list shows that all five of the circuit court judges who retired since Trump won the election were Republican, as were most of the district court retirees. Thus the trend is not indicative of a host of opportunities to flip the balance of the circuits. Which is one more reason why we need wholesale judicial reform in addition to filling vacancies.

Trump must act soon to fill vacancies and demand originalists in the mold of Thomas

Nonetheless, it is important that Trump not wait the traditional six months or so to start the process of filling lower court vacancies. While I don’t believe it will fundamentally alter the balance of the courts, the better judges who are in the circuits make it more likely we will get lucky and have a decent three-judge panel for random, important cases.

However, if Trump is to make his appointments meaningful, he would have to depart from longstanding tradition that gives home state senators major input on nominees and allows them to potentially scuttle the nomination.

One of the reasons why we have many liberal judges from Republican presidents — such as Judge Robart, a W appointee — is because Democrat senators can “blue slip” any nominee from their state they dislike. Under Senate tradition, the Judiciary Committee will refuse to hold a hearing on any nominee that is officially opposed by the home state senators. This is why it’s so hard to get even a marginally conservative judge approved from blue states, much less someone in the mold of Clarence Thomas.

Even in red states with two GOP senators, the judicial nominees often reflect a legal mirror image of their political views, which are moderate at best. And in states with senators from opposing parties, Republicans have often cut deals to approve only those nominees who are acceptable to their home state Democrat senator.

The problem of home state RINOS and Democrats is further exacerbated by the fact that tradition tends to bind the president to maintaining state continuity in seats within a circuit court. According to CRS, just 13 percent of circuit court appointments since the Kennedy administration have changed state representation from the vacant seat. And it is downright mandated by law that every state has at least one judge on the given circuit court and that every nominee must at least reside within the circuit at the time of the appointment.

Consequently, if a president wants to fill a vacant seat from a state with a Democrat senator, he would be constrained by tradition from filling it with someone from a state with two Republicans, thereby avoiding a blue slip problem.

To begin with, it’s so hard to find Clarence Thomases in this profession. The limitation of state allocation rules and blue slip obstruction are killers. This is why despite swearing every time we will do a better job “appointing better judges,” we wind up with more Kennedys and Roberts on the lower courts. It’s also why outside of the geographical areas of the fifth and eighth circuits, it’s hard to appoint a string of reliable conservatives. There are three vacancies from the 3rd Circuit, for example, but it will be very hard to fill them with originalists given the geographical problem.

As such, Trump would have to expend as much political capital trying to “appoint better judges” in a meaningful way as he would by pursuing judicial reform. Yet the latter would actually solve the problem in the long run.

It’s quite evident that we still need judicial reform, but in the meantime Trump would be wise to fill the vacancies aggressively on circuit courts and make it clear to Senate Republicans that they are to promote originalists with the same gusto that Obama used to confirm anti-constitutionalists. (For more from the author of “‘Circuits’ or ‘Circuses’? Here’s Why We Desperately Need Judicial Reform at the Circuit Court Level” please click HERE)

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Conservatives Pressure 12 Democrats on Supreme Court Pick

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Two conservative advocacy organizations hope to stop Senate Democrats from blocking President Donald Trump’s Supreme Court nominee.

“The focus is to put pressure on Democratic senators to decide between following the will of American people and the voters in their state or to follow Sen. Chuck Schumer and the radical left down a path of obstructionism,” Judicial Crisis Network senior adviser Gary Marx told The Daily Signal.

The Judicial Crisis Network and Heritage Action for America have both launched campaigns to bolster the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court. Gorsuch, currently a judge on the U.S. Court of Appeals for the 10th Circuit, was nominated by Trump to fill the seat of the late Antonin Scalia.

Judicial Crisis Network has formed a coalition enterprise to engage in a $10 million campaign of television and digital advertising, research, and grassroots activism. The group claims this is the “most robust operation in the history of confirmation battles.”

Judicial Crisis Network and Heritage Action are targeting Democrat senators from states that Trump won in the 2016 presidential election. Judicial Confirmation Network is also focusing on Colorado, which is Gorsuch’s home state, while Heritage Action has Minnesota, a state Trump narrowly lost, on its list.

1. Sen. Tammy Baldwin of Wisconsin
2. Sen. Michael Bennet of Colorado
3. Sen. Sherrod Brown of Ohio
4. Sen. Bob Casey of Pennsylvania
5. Sen. Joe Donnelly of Indiana
6. Sen. Heidi Heitkamp of North Dakota
7. Sen. Amy Klobuchar of Minnesota
8. Sen. Joe Manchin of West Virginia
9. Sen. Claire McCaskill of Missouri
10. Sen. Bill Nelson of Florida
11. Sen. Debbie Stabenow of Michigan
12. Sen. Jon Tester of Montana

“Any vulnerable senator who signs up for Schumer’s obstructionist strategy will pay a heavy price,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network. “Exit polls showed that over one-fifth of voters said the Supreme Court was a primary reason for their vote, and of that large percentage of Americans, Trump won those voters by a resounding 57-40 margin.”

In a phone interview with The Daily Signal, Severino noted that the group’s pro-Gorsuch campaign is about holding senators accountable to their constituents.

Before Gorsuch was nominated, Schumer, the Senate Democrat leader from New York, said in an MSNBC interview, “We are not going to settle on a Supreme Court nominee. If they don’t appoint someone who is really good, we are going to oppose them tooth and nail.”

Tea Party Patriots’ co-founder and national coordinator, Jenny Beth Martin, who is assisting Judicial Crisis Network’s grassroots effort, told The Daily Signal that “our big initiative includes making phone calls to senators, doing sign-waiving events, letters to the editor, social media posts, and also reaching out to constituents in the key swing states with Democratic senators.”

Judicial Crisis Network also launched a new pro-Gorsuch ad, which began airing on Friday in Montana, Indiana, North Dakota, Colorado, and the District of Columbia, according to a press release. This ad is part of the over $2 million initial advertising buy that started on Tuesday night after Gorsuch was nominated. The campaign is part of the organization’s $10 million overall effort.

Heritage Action’s campaign also targets senators in 10 states where Trump won, although it also targets Klobuchar of Minnesota rather than Stabenow. The group, a sister organization of The Heritage Foundation, asks its support to call these senators and ask for a swift confirmation. It also encourages senators to promptly carry out their constitutional role of “advise and consent.” (For more the author of “Conservatives Pressure 12 Democrats on Supreme Court Pick” please click HERE)

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