Smashing the Kritarchy: How Trump Can End Judicial Supremacy in America

Smashing the Kritarchy: How Trump Can End Judicial Supremacy in America

The law of the United States is not decided, as we’ve been led to believe, by Congress or the president, but by unelected dictators in black robes. Trump’s presidency has highlighted this unfortunate decay of our governmental system. Several of his policies have been implemented only to be overturned by activist judges legislating from the bench.

Last week saw yet another dictatorial decision made by an activist judge. US district court judge Dana Sabraw issued a ruling which said that the Trump administration must reunite all illegal alien minors with their parents within 30 days. To Sabraw, immigration policy is not the jurisdiction of Congress and the president but his own.

This ruling is reminiscent of many others throughout the Trump presidency. The first notable example was early last year when the first travel ban went into effect. As the media and leftist groups whipped up outrage in airports across the country, a federal judge stepped in and declared the law null and void.

This wasn’t even the Supreme Court overruling the president, it was one of thousands of federal judges in the United States, any one of which has the authority to strike down legally sound policy. That is thousands of unaccountable, unelected officials who have the power to get rid of policy on a whim. Instead of three coequal branches of government, it has become apparent that the judicial branch reigns supreme over the legislative and executive. It is the judges who get final say on every policy. America has decayed into a kritarchy — a country ruled by judges.

Of course, the travel ban has, as of last week, been reaffirmed. However, it was not done by Congress or any executive order, but by another, higher court. The only check on the power of lower court judges is a higher court judge. A circuit court judge may have power over the president, but the Supreme Court is the supreme decider — the most powerful legislative body in America. 

Shortly after, more good news came the Supreme Court — Justice Anthony Kennedy was retiring. Trump is now poised to appoint the second Supreme Court justice of his presidency. Speculation is now swirling about two more judges potentially leaving soon (by death, not retirement), Ruth Bader Ginsburg and Stephen Breyer, both well into old age. It remains to be seen who Trump nominates and whether he will get a third or even a fourth nomination. However, one thing is for certain: having more conservatives in the all-powerful court system will greatly aid Trump. It will also go a long way in diminishing the liberal kritarchy.

These events should be celebrated as a great victory for the Right in America. However it is also a sober reminder of the perverse system that we live under. The fact is, control of the Supreme Court should not be necessary to uphold the travel ban or any number of other wholly legal Trump policies struck down by the courts. 

The current reasoning behind upholding the travel ban is less than ideal. By law, the president has the right to ban any group of noncitizens anywhere in the world from entering the US. Title 8, Section 1182 of the US code states that the president “may by proclamation, and for any such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens.” The president’s authority in this area is clear.

While acknowledging the legitimacy of this law, the Supreme Court contradicted it in its decision. The ruling was only won 5-4. In a dissenting opinion, Justice Sonya Sotomayor wrote that she ruled as such because of the “discriminatory” nature of the ban and Trump’s personal “anti-Muslim animus.” The law as written, she said, was constitutional. However, due to past comments Trump made about Muslims and other foreigners, she believed the president’s intent was discriminatory and therefore the law should be thrown out. The four dissenters ruled, not on the law itself, but the character and intentions of the president. This is absurd enough. However, even the actual Muslim ban suggested by Trump during the campaign is 100% legal by the letter of the law. So not only did the dissenters judge intent and not just the law in front of them, they also invented a law, which doesn’t exist, forbidding the president from “discriminating” and being “anti-Muslim” when deciding who can and cannot enter the country.

What a sham. The very nature of an immigration or travel ban is discriminatory. It is no less discrimination against people from the 7 countries on the ban than it would be against all Muslims. Either way, the US government is discriminating against people based on some criteria and deciding whether or not they can enter the country. According to the law, there is no difference between discriminating based on country of origin, religion, race, or any other category you can think of when it comes to noncitizens. The idea that the president cannot “discriminate” or be “anti-Muslim” in his immigration policy is an imaginary law made up by the court. To say that that there can be no discrimination is to say that there can be no immigration or travel restriction at all. No discrimination means open borders.

Sadly, even Chief Justice John Roberts followed similar logic in his majority decision. He ruled in favor of the ban, not because the law explicitly states that the president has the authority to ban any group of aliens, but because he believed that the court had no basis to judge the intent of the president in making the law. Essentially, Roberts would have ruled against an actual Muslim ban, stated as such. The court unanimously agreed that discriminating based on the religion or race of noncitizens is not lawful despite the fact that no such law exists. The only difference is that four of them claimed to know that this was Trump’s intent, while the other five only ruled on the policy in front of them.

While the court decision is largely welcome, it displayed the power of the kritarchy, as we saw the Supreme Court conjure up new, unwritten legislation in real time.

The kritarchy may be working in our favor for the time being, and we should embrace this. However, judicial supremacy in America must ultimately be destroyed. A good first step would be for President Trump to nominate another conservative justice in the vein of Justice Gorsuch, who will stay within his lane as an interpreter of the law, not a legislator, and will potentially help to overturn the unconstitutional gay marriage ruling among others. If another opening or two arises, Trump should continue to cleanse the court of liberal kritarchs. He should also continue to use his power to fill the lower federal courts with as many conservative judges as possible.

Next, Trump needs to push Congress to remove immigration from the purview of the courts through jurisdiction stripping. Immigration would then be an administrative matter, and the president could turn people away at the border without so-called due process. No longer would our national security be in the hands of judges who can unilaterally decide to let in illegal aliens based on their opinion of a “valid asylum claim.”

A third and more radical step is to begin ignoring bogus court rulings altogether. Like Andrew Jackson who famously ignored the Worcester v. Georgia ruling, Trump should put these federal judges in their place. There is no reason for the president to obey attempts by judges to legislate immigration. Trump should simply assert his right to make immigration policy and declare any attempts by a judge to do such as invalid. Liberals applaud the courts for putting so-called checks and balances on the president. Now it’s time for Trump to put a check on the courts.

The power of the liberal kritarchy was diminished last week, but the Sabraw ruling and others like it remind us that there are many judges out there attempting to undermine the rule of law in America. Trump should not put up with their antics any longer. Stack the courts with men who will not overstep their authority, ignore those who do, and return to the president his rightful authority.

Jay Lorenz
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