By Colonel Mike Angley
We have become accustomed to a paradigm in the United States, a thought process about government that holds when a court issues a ruling, it trumps (pun intended) the executive and legislative branches. Relief then channels itself neatly within the SAME power-wielding judiciary with the ultimate and final arbiter found in the Supreme Court. But does that really square with our Constitution’s ‘separation of powers’ and ‘co-equal branches of government’ constructs? The short answer is: nope.
Our Founding Fathers were brilliant. They crafted the three branches of government and vested in each unique functions and responsibilities. At the same time, each branch was given different powers with built-in checks and balances on the other two branches. The three branches, the executive, the legislative, and the judicial engage in a government version of Rock-Paper-Scissors (RPS) as they wield their respective powers to check and balance each other.
RPS works because it’s a zero-sum game. Each element has power over the others, and simultaneously, it can be defeated – checked — by the others. But what would the game be like if one element could smash BOTH of the other two elements when presented? Each and every time that more powerful element presented itself, it would win. That seems unfair. Certainly nothing co-equal about that arrangement, right?
Despite the beautiful system our Founders designed, it has become out of balance. The judiciary has evolved to the point that it enjoys de facto power over the other two When a court issues an injunction against the executive branch, the executive complies, giving deference to the judiciary. If it chooses to challenge the injunction, it appeals through the same judiciary and its arcane architecture of appellate courts, rules and procedures, and ultimately to the Supreme Court of the United States. Once SCOTUS issues a ruling, that ends discussion, right?
Article III of the US Constitution outlines in three short, simple sections, the power of the judiciary. One thing is missing: the power of judicial review in which a court interprets law in accordance with the Constitution. That notion did not come about until 1803 in a case called Marbury vs. Madison. The Supreme Court granted unto the judiciary the authority to have final word on what constitutes good law. More broadly, it has extended judicial review to actions of the executive in implementing law (such as through executive order).
That brings us to the present day and the showdown between the Trump Administration and the federal court system with respect to his executive order on immigration. Setting aside the fact that neither the lower court nor the 9th Circuit Court of Appeals actually interpreted LAW (weakening any decision they rendered), there are flaws with what the courts did in terms of the Constitution’s balance of power.
Both courts reached into the power of the executive and made de facto policy decisions, relying on arguments grounded in purported threats posed by immigrants. Threat and response to it are responsibilities of the Chief Executive (and the reason the executive – not the judiciary – has intelligence and law enforcement agencies to assess such threat). Make no mistake, what the courts have done is encroachment on the power of the executive branch and it must not stand.
What can/should the executive do? While President Trump has sought to use the court system to resolve the standoff, in the interim he’s issued new executive orders to ameliorate the points in contention with the original order. But there’s something else he can do. He can simply ignore the courts and press on with implementing his orders – essentially reasserting his natural, Constitutional authority the courts have grabbed. That surely would be met with wailing and gnashing of teeth from the Democrat Party’s Propaganda Arm, the mainstream media. But what isn’t these days?
President Barack Obama did something like this in 2011. A federal court ordered the Interior Department to lift its moratorium on the granting of offshore oil drilling permits. The White House simply ignored the court’s order and continued the moratorium. The court held the Interior Dept in contempt, but that appeared to be toothless. As a side note, the mainstream media was nowhere to be found when Obama flaunted his authority this way. There’s a 100% certainty the MSM would pay attention should President Trump do the same.
The Legislature also has power it can wield to put the judiciary in check. It has the power of impeachment (albeit an uphill battle for sure) as well as the power to determine the makeup of the federal court system. In locations where courts have become bastions for liberal orthodoxy (such as San Francisco’s 9th Circuit with its unflattering 86% overturned decision rate), the Congress can dissolve district and appellate courts and create new ones in different locations. Doing so would likely drive many judges with lifetime appointments to retire rather than move. This would give President Trump the ability to appoint new judges who would make decisions tempered less in politics and more in accordance with the Constitution.
President Obama stacked many of the federal courts with unelected, liberal activist judges hell-bent on deconstructing the Constitution and protecting his left wing legacy. These rogue courts are out of control and are acting extra-Constitutionally in pursuit of ideology. It’s time to rein this all in.
Our Constitution’s RPS game has been out of whack for decades with the judicial branch enjoying ultimate authority over the other two branches. In the recent case involving President Trump’s executive order on immigration, it engaged in a political version of ‘smash-and-grab’ by asserting unto itself authority over execution of law and policy. That must be turned around and the courts must be held in check not only by the Chief Executive, but by the Congress. It’s time for bold, decisive leadership to honor and respect our Founding Fathers’ original intent.
Colonel Michael (“Mike”) Angley is retired from the United States Air Force, a published thriller author, and a conservative writer who fashions himself as Attila the Hun with a laptop. Mike wrote for Andrew Breitbart’s Big Government and Big Peace blogs before the Breitbart consolidation, receiving superb feedback and kudos for typically weaving in pop culture references with his far right perspectives. He enjoys writing about military affairs, national security issues, and politics and is an avid Second Amendment advocate. When he’s not writing, he’s busy annoying liberals with FaceBook posts and Twitter tweets that point out the obvious flaws and fallacies of the left.
During his 26-year USAF career, the Colonel was a Special Agent with the Office of Special Investigations (OSI). The OSI is a sister agency to the Naval Criminal Investigative Service (NCIS) and has an identical mission that includes felony-level criminal, fraud, and narcotics investigations as well as counterintelligence and counterterrorism operations. His USAF experiences spanned multiple regions around the globe with five command assignments and duties at foreign, regional, theater and national levels.
He is a seasoned counterintelligence and counterespionage officer from the Cold War era, and if you ask him he’ll tell you the spy-vs-spy days were indeed the heady, glory era of espionage. During the latter half of his career he focused on counterterrorism missions in the Middle East and the Far East and operationalized many of today’s concepts for this unique arena while working the sand dunes of Saudi Arabia, Kuwait and a few other “choice” locations. When Colonel Angley retired in 2007, he was a Senior Supervisory Special Agent and was in command of all worldwide OSI matters at Air Force Space Command in Colorado Springs, CO.
Mike Angley is also a published, award-winning author of three thriller novels in the “Child Finder” trilogy. His debut novel, “Child Finder,” received a glowing review from the Library Journal which placed it on its Summer Reading list in 2009. “Child Finder” and its companion sequel novels all won various awards from the Military Writers Society of America (MWSA) and the Public Safety Writers Association. In 2012, Mike was named MWSA’s “Author of the Year,” largely for work on his third novel, “Child Finder: Revelation.”
As an avid user of social media, Mike can be found and friended on Facebook (mike.angley) and followed on Twitter (@MikeAngley). His website is www.mikeangley.com. Following his USAF retirement, Mike and his family stayed in Colorado Springs, CO where they enjoy daily, majestic views of Pikes Peak and the Rocky Mountains.