The Judiciary Must Be Reformed

A short rant on the inability of courts to stop illegal government actions

Today, the 5th Circuit Court of Appeals, the most conservative appeals court in the country, ruled that the President’s use of the Alien Enemies Act to deport suspected illegal immigrants en masse with no due process is illegal. This outcome was so clear that even the most conservative appeals court in the country agrees: the Alien Enemies Act only applies to foreign militaries being sent to invade the United States. Just because the President likes to call immigrants “invaders” does not make it true.

So why has it taken nearly 6 months to stop this unlawful action? This was a blatantly illegal policy impacting thousands of people and enabling a gross violation of the law by the President in a way that is extremely ripe for abuse against potentially millions of people living in the United States. The judiciary must be reformed to allow for swift action against such blatant violations of the law and of the U.S. Constitution as we see today. When an issue involving the federal government is before any federal court, and that issue addresses urgent questions of legality and constitutionality of federal actions against individuals living within the United States, there should be a way to fast-track these issues directly to appeals courts. Even earlier this year, when hearing the case on nationwide injunctions over the birthright citizenship case, a few conservative members of the Court, even Clarence Thomas, made comments implying that they do not think Trump’s order is constitutional. Brett Kavanaugh even noted that he wished they were simply looking at that case on the merits rather than discussing the legality of the injunction. We still have not had a resolution in that case!

The Supreme Court ruled that nationwide injunctions are not legal and not a power granted to federal courts by Congress. When Democrats take back the presidency and Congress, we can re-establish nationwide injunctions, perhaps in a more limited way so that they only apply to urgent matters such as questions impacting large groups of individuals or questions of core constitutional rights and powers.

One of my very long-standing issues with many “old guard” Democrats is their willingness to expand the power of the executive branch over the years with no regard for how it can be used by bad actors. Joe Biden’s administration was hampered heavily by nationwide injunctions, and I fear that a future Dem majority may not want to bring them back. I think there are many cases where they should be limited, but broadly speaking there should be a judicial process to stop a president who does not care about the law and takes swift action to abuse it as much as possible before he can be stopped, even if that means increased difficulty for future presidents. To quote Elrond: Cast it into the fire, destroy it!