Eagle Forum Legislative Alerts

Wednesday, April 13, 2016

Congress Is the Solution to America’s ‘Judge Problem’

It’s fine for the Republican presidential candidates to promise to fill Justice Scalia’s immense shoes with someone similar. But even if a Republican wins the upcoming presidential election, even if he picks another Justice Scalia, and even if the nominee is confirmed by the Senate, the federal judiciary will still be stuffed with hundreds of activist judges appointed by Obama, Clinton, and even Jimmy Carter.

The Founders gave Congress everything necessary to take power away from a runaway federal judiciary. Congress can deprive the federal courts of power over immigration, abortion, and marriage. Congress can completely defund enforcement of bad federal court decisions that are already on the books. Congress spent months trying unsuccessfully to defund Planned Parenthood, a worthy goal, but Congress could more effectively defund enforcement of the pro-abortion and pro-homosexual marriage decisions by the judiciary without sparking a phony “war on women” debate. Congress should also defund use of taxpayer money by the Department of Justice to push the liberal agenda in liberal courts. Congress should cut back generally on funding for the courts, too, and eliminate judicial positions rather than fill some of the vacancies.

Some presidential candidates promise to work with Congress, but none of them promises to rein in the Supreme Court in the style of Justice Scalia. But none of them promises to stand up against an unconstitutional order by refusing to enforce it.

The answer is not gimmicks like a Constitutional Convention being pushed in some state legislatures – which Justice Scalia properly called a “horrible idea.” The answer is in a Congress and a new president who do their constitutional duty to limit the power of the Supreme Court to change our laws on immigration, abortion, and marriage.

Listen to the radio commentary here:


Brent said...

Notwithstanding the other points made in this piece, a convention of states called pursuant to Article V is not a gimmick any more than our founding fathers were hucksters.

Gary Rosenbaum said...

Problem is Congress as well... They certainly will not limit their own terms or stop spending money they don't have. No Gimmicks with a Convention... Just OUR VOICE!!!

MyTwoSenseWorth said...

Sadly, the author does his readers a disservice by conflating an Article V Amendments Convention with a Constitutional Convention... two totally separate and distinct events. It was indeed a Constitutional Convention that Justice Scalia warned against, as he should have, for such a convention would be extra-constitutional. So, not only is no one of any credibility calling for a second Constitutional Convention, there are no provisions whatsoever in the Constitution for such a re-write.

There are, however, clear provisions for proposing AMENDMENTS to the Constitution, either initiated by an act of Congress, or initiated by two-thirds of the several state legislatures. Either way, whether driven by Congress or by the states, nothing changes in the law until a proposed amendment is ratified by both chambers of 38 state legislatures, which means that any proposed amendment can be defeated by rejection in just one chamber in 13 states.

When Scalia did voice his opinion on an Article V Amendments Convention, not a Constitutional Convention, he spoke out boldly in favor of it, going so far as to say if there were one amendment he would like to see proposed and ratified, it would be one that would make the amendment process easier.

As I said, all this "author" has accomplished is making himself look uninformed at best.

Paul A said...

However, Congress is NOT doing any of those things, and sadly, the Founders didn't anticipate the 17th Amendment being passed. However, they DID get the idea that the federal government might get too big and that Congress wouldn't act, hence necessitating the states to act.

Consider this Amendment:

Section 1.
All appointments for executive or judicial offices shall be confirmed by 3/5 of the several States instead of 2/3 of the Senate. Shall 10 successive appointments for the above fail, the states shall nominate their own person for the position and confirmation shall be by 3/5 of the several States and this shall keep applying for each new person till a person is chosen.
Section 2.
Upon the request of 10 states, members, appointed by 10 more random states, shall begin into the federal government. They shall have 59 members in total on the committee. Decisions shall be done by the majority and shall be final except in the case of section 2. The decision in can be overridden by 30 or more states. Nobody shall serve on this committee for more than four years.
Section 3.
In all the cases in Article 2 where Congress can limit the appellate jurisdiction under Article 2, 3/5 of the states can also limit it, and such limitation shall not be overridden by Congress or any other federal agency. 3/5 of the states may dissolve a lower federal court and 3/5 of the states can set the jurisdiction of a lower federal court that again, such limitations shall not be overridden by Congress or any other federal agency.
Section 4.
By the vote of 3/5 of the states within 180 days of a veto, the States may override a Presidential veto. By a vote of 3/5 of both Houses of Congress within 180 days of the veto, Congress may override a Presidential veto. By a vote of 3/5 of the states, the President may be removed from office. The President shall not be allowed to exercise line item vetoes. The President may not pardon anyone within his or her administration or that had been part of his/her administration. Upon the vote of 3/5 vote of both Houses of Congress or upon the vote of 3/5 of the legislatures of the several states, a Presidential Pardon may be overturned. Neither the President nor any other member of the executive may set up courts or tribunals that only answer to the executive branch for their authority or decision making.
Section 5.
No Congressional bill shall exceed 1000 pages. Congress shall make no law, nor shall any regulation be enforced that exempts any elected or appointed official, nor any employee, contractor, staffer, intern, or volunteer of any branch of the government from the restrictions binding upon the people. All bills must have a subject matter header that shall not exceed 10 pages that shall determine the subject of each bill. Nothing in the bill may deviate from what is in this section. All Congressional bills must be available for public viewing by the general public at least thirty days between the time the bill is fully engrossed and when it is taken up for a vote.
Section 6.
All spending measures must be passed by Congress as standalone bills and shall require renewal every year. Everything that is not passed shall be automatically defunded

This would settle many things. Also, the Founders were aware that the SCOTUS would get out of hand (or at least SOME were). Jefferson, after seeing Marburry vs. Madison, said that judges with this power with lifetime appointments was a disaster waiting to happen. Even earlier than Marburry vs. Madison, one of the Antifederalists actually warned of this at the Philadelphia Convention that there was a danger of the federal courts getting too powerful.

The Founders left us Article V to resolve this mess that they knew would one day come. I suggest we use it.

Gary Rosenbaum said...

Founding Father's added Article V so WE THE PEOPLE would have a voice... No gimmick in that.

gator108 said...

Antonin Scalia on the “Minimal Risk” of an Article V Convention
As far as the risk, Scalia made clear he had “no fear” that “extreme proposals” would come out of an Article V convention.

Gary Rosenbaum said...

What's good about an Article V convention... Its a conversation & dialog of proposal's limiting government formed BY THE PEOPLE, FOR THE PEOPLE, and approved BY WE THE PEOPLE.

Gary Rosenbaum said...

Article V is not a gimmick... it's a lifeline & OUR voice!!!

Bob Diamond RPh said...

An Article V Convention of States is the US Constitution's best answer/solution to reigning in US Government tyranny.

Robyn Campbell said...

Oh, my. Please listen up. A Convention of States is exactly what we need to save us from ourselves. Government has exploded in these past years. The COS is our only answer. We have to succeed. The country is at stake.

Rick Bulow said...

There is no gimmick to calling a convention for proposing amendments under Article V. In fact, the founders put that in the Constitution for a reason. We need to use it.

rick amundson said...

Article V convention of states was included in constitution for the express purpose of taking action on the state and local level when Washington refuses to do so. I think we are at that point now

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