Several weeks ago, Newt Gingrich announced his plan to rein in the judicial branch of the federal government, which has become dictatorial and usurping and nowadays legislates from the bench. His plan consists of four components:
- Subpoenaing federal judges to testify before the Congress on their controversial rulings;
- Impeaching usurping federal judges and removing them from office (by the Congress);
- Abolishing usurping federal courts (e.g. the 9th Circuit Court of Appeals); and
- Ignoring those rulings of federal courts that the President deems unconstitutional.
George Will, Quin Hillyer, and other critics of Gingrich claim that all four of these policies are unconstitutional and wrong. They are correct only regarding the first one, and only regarding the Congress. As for the other three policies, they are flat wrong and Newt Gingrich is right.
To see why, read the United States Constitution. What does the Constitution say?
Regarding policy #2 (impeaching and usurping federal judges): YES, the Congress can (and I believe should) impeach usurping federal judges and remove them from office. They are not appointed for lifetime – they serve during “good behavior” only (Art. III, Sec. 1 of the Const.). If they abuse their office, they can be subjected to the same impeachment/trial procedure as every other federal official who abuses his office, including the President.
Regarding policy #3: YES, the Congress can (and again, I believe should) abolish usurping federal courts such as the 9th Circuit Court of Appeals. Again, I would point Gingrich’s critics to Art. III, Sec. 1 of the Constitution, wherein we read that the judicial branch of the federal government shall exist of the SCOTUS and such inferior federal courts as the Congress may from time to time ordain and establish. Art. I, Sec. 8 of the Constitution gives Congress the prerogative to create federal courts inferior to the SCOTUS. Therefore, the Congress can abolish any federal court inferior to the SCOTUS anytime, at its sole discretion.
This is exactly what the Jeffersonians did in 1801. In 1800, when the Federalists lost the Congressional and Presidential elections, they wanted to prevent the Jeffersonians from enacting their policies, so they created 18 new federal courts and filled them with judges who would do their bidding; President Adams also appointed, and the Senate confirmed, John Marshall as CJ of the United States. When the Jeffersonians took over, they simply abolished the 18 newly-created federal courts and told the judges sitting on those courts: “Go home. Your courts no longer exist. You are no longer members of the federal government.”
And as for Gingrich’s fourth policy (ignoring unconstitutional rulings by the federal judiciary): yes, the President may, and indeed should, ignore such rulings. He is supposed to be a check on the other two branches of the federal government.
Let me illustrate this with an example. Suppose you’re President. Suppose the Congress passes a nationwide smoking ban in public space (cafes, bars, public buildings, open space , and even people’s own cars) with a $5,000 fine for any violators. You veto the bill, but the Congress overrides your veto and the Supreme Court upholds the bill, with a ruling written by Anthony Kennedy, joined by Sotomayor, Kagan, Breyer, and Ginsburg. That’s a 5-4 majority.
What do you do? Do you obey the ruling and enforce the bill?
Not if you treat your oath of office seriously.
Read your oath of office. Does it say anything about obeying the Congress or the Supreme Court? Did you take your oath to the Congress, the Supreme Court, or the Constitution?
The answer is: the Constitution. You did not swear to do everything the Congress and the Supreme Court tells you to; you swore to uphold the Constitution of the United States. That requires Presidents to think for themselves and to defend the Constitution even if the Congress and the Supreme Court violate it or interpret it differently.
If a Congressional bill is unconstitutional, the President is obligated by oath to refuse to enforce or obey it.
If a SCOTUS ruling runs contrary to the Constitution, the President is obligated by oath to refuse to obey it.
In America, officials don’t take oaths to institutions, individuals, or even the American people (except enlisted military personnel), only to the Constitution.
Newt Gingrich understands that. His critics, including George Will and Quin Hillyer, do not.