Congress should dominant, not be dormant!

 Weekly Opinion Editorial

DOMINANT OR DORMANT?

by Steve Fair

     The United States federal court system consists of the U.S. Supreme Court (SCOTUS), 13 circuits of appellate courts and 94 federal district courts.  Congress has authorized 679 federal district judges.  As of January 2, 2025, of the 679 district court judges, 384 were appointed by Democratic presidents compared to 257 by Republican ones.

     U.S. federal judges are nominated by the President and confirmed by the Senate, according to Article III of the U.S. Constitution.   They serve for life or so long as they ‘maintain good behavior,’ as the Constitution prescribes.  The lifetime appointment was put into the founding document to supposedly ensure judicial independence.

     On Friday in Trump vs. CASA, the SCOTUS decided in a 6-3 decision that universal injunctions issued by the federal courts should be limited.  Justice Amy Coney Barrett said: "Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government's applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”  

     The SCOTUS did grant a partial stay of injunctions blocking Executive Order 14160 (Birthright citizenship).  The majority opinion didn’t rule on whether the EO violated the 14^th amendment or the so-called Nationality Act.    Three observations:

     First, the SCOTUS ruling expands the power of the executive branch.  Recent presidents- in both Parties- have used Executive Orders (EO) to govern, circumventing a dysfunctional Congress. [S1]   The response by opponents of the EO has been to venue shop and find a sympatric district judge to issue a universal (nationwide) injunction stopping enforcement of the EO. The federal judiciary used injunctions to legislate from the bench.  The predictability of which district judge would issue a decree stopping an EO wasn’t difficult.  Conservative judges stopped Biden EOs- liberal ones- Trumps.  This ruling means district judges are restricted on the reach of their injunctions, but it is unclear just how restricted.

     Second, the judiciary is not independent.  That was the intent of the founders when they implemented lifetime appointments, but that has never been the case.  Every person has a political viewpoint, a worldview, a value system and their decisions are filtered through their life experiences.  Biases are a natural part of human cognition, influenced by experiences and environment.  The key to be conscious of those biases.  In the 21^st century, the judiciary has abandoned the stated purpose of the founders.  Instead of interpreting laws, they block them by issuing injunctions, preventing enforcement.     

     Third, the three branches of government need to stay in their lane.  The executive branch’s job is to enforce the laws.  The judiciary is to interpret laws.  It’s the legislative branch’s job to make the laws.  Remember Schoolhouse Rock? 

     In the past twenty years, presidents have used EOs to make temporary laws.  Federal judges have used injunctions to stop EOs. Both are outside their lane. Congress has been malfunctioning and ineffective.  Grandstanding, self-promotion, and posturing by members of Congress has become more important than getting out of the pits and getting into the race.

     Congress has the constitutional authority to control federal lower courts issuing of national injunctions.  Legislation should have been passed in Congress curtailing the abuse, but instead the SCOTUS had to intervene.

     Americans should be very concerned two of the three branches of government are performing tasks the Constitution doesn’t give them explicit authority to perform.  The founders envisioned Congress (legislative branch) as the most dominant of the three branches, but it has become largely dormant.