December 06, 2019

AG Barr on the invasions of Presidential powers by the other two branches of government

The recent speech by AG Barr has evoked much comment from Left and Right.  But I believe there is still something more to be said of it.  The body of the speech consists of an extensive range of examples showing that the courts have assumed Presidential power.  They have given themselves powers that were never envisioned for them in the constitution

This is true for SCOTUS and also true for district courts.  As Barr sets out, the role of the district courts has hugely expanded since Trump came to office. District courts have issued NATIONAL injunctions overturning almost all of Trump's major initiatives. They do this despite having no jurisdiction to do so. They have jurisdiction over their own district only.  They have suddenly invented for themselves a national power.

So why does Trump put up with it?  Why does he not simply ignore ultra vires judgments?  There is actually a good practical reason.  Given the quite crazy policies leading Leftists are proposing these days, it is clearly desirable to block such mad policies.  And if Obama-appointed judges can block Trump decisions, Trump-appointed judges can obviously block future Democrat initiatives.

That is however a modern reason.  The basic reason is a tradition of courtesy.  Administrations have always treated court decisions as binding even when they are not.  This has always applied to SCOTUS.  Section 3(2) of the constitution does not give SCOTUS the power of judicial revew but that power has been conceded ever since 1803. Theoretically, if SCOTUS reviewed a Trump initiative and disallowed it, Trump could ignore the verdict as being ultra vires of the constitution.  After a couple of centuries of a conceded and legislated power of review that would be unthinkable but it comes down to courtesy rather than a constitutional requirement.

Presuming Trump wants to rein in the assumed jurisdictional abuses of the lower courts, there IS something he could do about it.  He could simply announce that he will not apply lower court decisions beyond their jurisdiction until they are affirmed by a national court.  Since there is only one national court, however, SCOTUS, this would effectively void almost all national verdicts from the lower courts.

That would undoubtedly raise huge objections so a further step would be needed to give lower court orders some chance of a national effect.  That could be done rather simply.  A NATIONAL court of appeal could be set up on the model of the existing circuit courts of appeal.  Any judgment that was successfully appealed to such a court would have a strong case for being respected and implemented nationally.  And if Trump were to set up such a court, he would be appointing the judges!

The proposed refusal to recognize a national jurisdiction for district courts would have the  considerable side-benefit of  putting a large crimp into Greenie lawfare.  At the momrent, Greenies use a great barrage of litigation to obstruct all sorts of projects and initiatives

Barr makes a very strong case for the judiciary having placed large unconstitutional limits on the presidency so something badly needs doing about that.  I have just outlined a relatively small change that would make a considerable step in that direction -- JR





Go to John Ray's Main academic menu
Go to Menu of longer writings
Go to John Ray's basic home page
Go to John Ray's pictorial Home Page
Go to Selected pictures from John Ray's blogs