In an interview with the Washington Examiner Wednesday, President Trump expressed interest in splitting the 9th Circuit Court of Appeals after it has repeatedly overruled his actions in questionable ways.
But my advice to President Trump is to not just split the 9th Circuit, but rather to dissolve it altogether.
Why? The Left is very adept at weaponizing language and government to achieve their political ends.
What do I mean by ‘weaponizing?’ – simply put, turning institutions or conventions that ought to be neutral into offensive tools for implementing their agenda. In my video show last week, I covered some of the weaponization of language.
As for the weaponization of government and more specifically the Courts, we have seen over the last 40 or so years, the Left has repeatedly achieved political victories in the Courts which stand in clear conflict with the repeated democratic results of elections – such as on the issue of gay marriage – or with any known constitutional reality – such as inventing a right to privacy to invent a right to abortion – among other transgressions. (And it is for this reason I have advocated the Right more aggressively use the Courts as opposed to the ballot box to achieve victories…)
But to the point, the 9th Circuit Court of Appeals is currently the most egregious weaponization of government the Left currently wields, and as such, simply ought to be outright dissolved. Take their most potent weapon against the Constitution away, and do so in a completely Constitutional manner.
For those unfamiliar, the 9th Circuit Court is known for giving the Supreme Court fits with its rulings, on top of repeatedly blocking Trump’s actions in questionable ways. It is regularly one of, if not the most, overturned Circuit Court in the Country – with the Supreme Court overturning around 80% of the cases heard from the 9th Circuit. The causes for this high number have been thoroughly hashed out in other sources, but the raw numbers do not tell the full story.
The 9th Circuit Court has been repeatedly called out by the Supreme Court for egregious errors in judgement, and has recently been used by the Left to unilaterally halt large parts of President Trump’s agenda and overturn Federal and State Law – and its findings in doing so are often far outside its Constitutional authority.
We must remember, that the 9th Circuit Court of Appeals exists solely at the discretion of the Congress. An act of Congress created the 9th Circuit for the purpose of adjudicating on laws and Executive Actions to ultimately ensure adherence to the Constitution. The 9th Circuit – or the 9th Circus as many commentators like to call it for its clownish legal behavior – by repeatedly making ridiculous rulings, trashing the Constitution, legislating as opposed to acting as a judiciary, and openly flaunting its role in preserving the Constitution has forfeited its right to exist as an institution. The Framers gave the Congress the power of oversight, and it’s far past time Congress exercise its authority.
To wit, here some of the more ridiculous recent findings of the 9th Circuit Court:
- States suffer “Concrete and Particularized Injury” if illegal aliens can’t come to University classes;
- The Federal Government doesn’t suffer “Irreparable Injury” if the Courts overrule immigration policy;
- Courts can look to motive rather than text;
- The Court refuses to strike down portions of laws/executive orders; (Daily Wire)
- The Court can force States to give driver’s licenses to illegal aliens;
- And the Court can block a State from requiring proof of citizenship in order to register to vote. (Conservative Review)
18 of the 25 judges on the Circuit are Democratic Appointees, and pointing this out of course is not to impugn their credibility or judgement, but it does indicate a significant implied institutional political bias.
With the Supreme Court only taking a very small percentage of cases from any of the Circuit Courts, something on the order of approximately .1%, the Left has found a judicial weapon to either enact sweeping partisan political change, and in the case of President Trump (and States like Arizona) block seemingly simple and Constitutional actions without much oversight.
As such, the 9th Circuit Court has ceased to be a politically neutral and constitutionally sound institution, and as easily as it was established by an Act of Congress, it can be dissolved. In its place, at least two new Circuit Courts ought to be established in the territories the 9th Circuit used to cover.
Constitutionally speaking, the dissolution of the Court is incontrovertible. The only Court organically formed by the Constitution is the Supreme Court. While this action would be highly politically controversial, it is clearly within the purview of the Congress. The Congress needs to start asserting its authority over the other Branches, and this would be a perfect start.
Recently, Congress has considered legislation to break up the 9th Circuit into multiple Courts (with President Trump now signaling support) seeing as it represents 40% of the land mass and 20% of the Population of the United States. Justices Kennedy and Thomas have even testified before Congress that the Court is simply too large.
But simply breaking up the 9th Circuit Court doesn’t go far enough.
The reason for dissolving the Court, as opposed to just breaking it up, is to free the new Courts and the subjugate States from the absurd “precedent” of the Court (to the extent that exists for Circuit Courts in our Common-Law system). The 9th Circuit has been creating laughable “precedents” like those outlined above, most of which will never be overturned by new iterations of the Court nor the Supreme Court.
If we simply break up the 9th Circuit Court, both new Courts will be bound by the “precedent” set by the old 9th Circuit. Without completely starting from scratch, the new 9th or 12th would practically still be bound to forcing Arizona to not require citizenship to vote.
To further ensure the eradication of the bad “precedent” of the 9th Circuit, it would be worthwhile to also consider rearranging large portions of the districts west of the Mississippi to incorporate States currently covered by the 9th, as this would create a legal condition where the other Courts’ precedent would be enforceable by the new Courts in the affected territory.
And beyond simply breaking the current 9th Circuit, it would be a massive political signal that Judicial Tyranny is on notice.
If enacted (or even seriously considered) this proposal would not just shake things up, it would knock the whole table over.
And on that note, beyond the 9th Circuit-centric reasons for dissolving the Court, I believe the Right needs to start forcing such ‘Constitutional Crises’ as this to halt the runaway advances of the Left.
I professionally engage in electoral battles for seats in the Legislative and Executive Branches of Government, but am increasingly of the opinion that long-term, such battles and victories will be largely meaningless unless Judicial Tyranny is checked in a serious way. We have a runaway train of Federal Unconstitutionality barreling down the tracks. Fighting over what degree to pull the brake lever of that train is no longer the best means to halt its advance… our best bet is to start throwing boulders on the tracks.
In the most analogous example, FDR used the threat of the Legislative Branch’s authority over the Courts (packing the Court) to force a Constitutional Crisis to great political effect for his political aims – though it was used in a manner damaging to the Republic and the Constitution. We on the Right must stop shying away from such acute measures. Dissolving the 9th Circuit Court for its pathetic record and playing politics is equally shocking and without precedent, but like packing the Court, is completely legitimate under the Constitution.
It’s time the Right start thinking out of the box, and start taking big swings at the ball while we still can.
The Right currently holds both Houses of the Legislative Branch and the Executive Branch of the Federal Government, and we ought to make good use of that power before the next election cycle. If we fail to make large-scale structural changes in as favorable a political environment as today’s, we may lose our chance forever. There is an unprecedented opportunity with President Trump and the Congress to finally start responding to years of the Left weaponization of the Courts for their political ends.
I say its high time we disarm the Left and take away their most powerful political weapon. President Trump and the Congress, dissolve the 9th Circuit Court of Appeals.