S.A. McCarthy | The Washington Stand
At the time of its founding, one of the most novel aspects of the American government was the separation of the executive branch of government and the judicial branch.
The existence of legislative chambers was not necessarily an innovation: the English parliament had been around in some form or another since the 13th century. Early on, the King of England relied on the advice and insight of a Great Council, which typically consisted of nobility, clerics, and representatives of the English shires and boroughs, eventually growing in power and influence to essentially become a parliament. By the end of the 14th century, this parliament had split into two distinct chambers: the upper house (now called the House of Lords) was comprised of nobles, barons, and high-ranking clerics, while the lower house (now called the House of Commons) consisted of representatives of the shires and boroughs.
The power of the English parliament waxed and waned over the centuries, fluctuating according to the power and, to some extent, the temperament of the reigning monarch. Today, the English monarch is, in practical terms, little more than a figurehead, although even the British Parliament nominally draws its authority from the king, who will invite the leader of the dominant political party in the House of Commons to serve as prime minister and form a government. But one thing remained fairly constant throughout history: the judiciary of England was a function of the executive, the king. Since the 12th century, the English judiciary received its authority to make judgements of law from the monarch, who was himself often the highest judge.
One of the keys to the separation of powers established by the U.S. Constitution was creating an independent judiciary, a body of courts and judges that was not a mere functionary of the executive but could, instead, check the power of both the legislature and the executive, ensuring that both the powers and protections enumerated by the U.S. Constitution are respected. The Founding Fathers sketched the parameters of the American federal judicial system in Article III of the U.S. Constitution:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. … The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
Article II of the U.S. Constitution, however, is a far more detailed schematic of the powers of the president, the American federal executive. One power explicitly granted to the president by the Constitution is the authority to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” It is this particular authority which has proven, in recent weeks, controversial in the very courts that were established to uphold the provisions of the Constitution.
Upon taking office in January, President Donald Trump began a widespread purge of the executive branch of the federal government, firing those employees either whose work was deemed unessential or wasteful or who evinced hostility towards the president’s agenda. It has, over the past several decades, become somewhat customary for the president not to interfere much with the entrenched bureaucrats and career “civil servants” in his particular branch of government, typically only appointing his own Cabinet secretaries and some senior officials in the various departments of the executive branch. The past four years, however, have demonstrated that a left-wing agenda has practically engulfed the executive bureaucracy, resulting in a more-or-less unified shadow government hellbent on promoting and enforcing progressivism at every level, both at home and abroad.
The alacrity with which the Biden administration was able to implement its program — from approving mutilative gender transition procedures for children to weaponizing almost every faction of the executive branch to promote abortion and prosecute pro-life Americans — was alarming, to say the least. It suggested even to more skeptical observers that there may, in fact, be a very real Deep State silently guiding the nation ever leftward, managing the levers, ropes, and pulleys of power behind the scenes while the populace blindly debated such nonsensical subjects as whether or not Trump is Hitler reincarnate or what pronouns to use when addressing a bearded man in a dress.
It was in no small part due to the federal government’s seemingly unified push leftward under the Biden administration that Trump was elected a second time. Poll after poll, survey after survey showed that Americans did not want open borders, drag queen story hours, secret school gender transitions, and DEI infesting every corner of the country.
Thus, as the prophet Hulk Hogan foretold, Trumpamania ran wild. Trump not only swept the Electoral College but won every single swing state and the popular vote, with over 77 million Americans casting their ballots for him. Trump was given a mandate by the American people: all that he had promised on the campaign trail, including the gutting of the Deep State, was not only expected but demanded of him. Border security, mass deportations, mass firings, the exposure of fraud and corruption, and the de-weaponization of the executive branch were all promised — where “de-weaponization,” of course, means “de-politicization,” returning each of the departments and agencies under the executive branch to the control of the duly elected executive, instead of leaving them in the stranglehold of the woke, toxic agenda and ideology which garnered such widespread unpopularity in the first place.
The federal courts are not arbiters of policy, but far too many federal judges seem to be laboring under the impression that they are. Numerous federal courts at both the district and appellate levels have placed temporary restraining orders on many of the president’s executive orders — executive orders which, by the way, the American people specifically voted for him to enact — in an effort not to uphold the provisions of the Constitution but in a blatant attempt to shape policy. (The Federalist has done a decent job of cataloguing those legal challenges here and here.) In fact, no matter what rigamarole partisan, activist judges may like to go through in their juridical opinions, the bevvy of temporary restraining orders imposed on the Trump administration is itself unconstitutional.
Article II explicates, in establishing the office of the president, “The executive Power shall be vested in a President of the United States of America.” It is not vested in the federal courts. It is not even vested in the president’s subordinates; they only exercise the president’s authority on his behalf. The courts do, of course, have the authority to review the president’s actions and, where they conflict with the provisions and stipulations of the Constitution, check them. What the courts have no authority to do, however, is shape the policy of the executive branch of the government and prevent the president from carrying out the agenda that the American people demanded he carry out.
Unlike the legislative branch, the power of the executive is vested in a single man: the president. He does have the authority to shape the policy of the executive branch and the power to terminate employees who impair, inhibit, resist, or undermine his policy. In point of fact, all authority that employees of the executive branch wield — from the most prestigious of the Cabinet secretaries to the rank-and-file of the most obscure of executive agencies — is not their own but the president’s; he, in turn, wields his authority on behalf of the American people.
Just as the representatives elected by the American people to Congress can vote to impeach a president who does not act on the behalf of the American people, so also the president, who is elected by the people to wield the authority of the executive, can fire those within the executive branch who do not cooperate with his lawful authority. The Founding Father James Wilson, in crafting the president’s role as laid out in the Constitution, observed that it is good for the legislative branch to deliberate and debate over the creation of law, in order to produce the best, most tempered result, which will (at least in theory) benefit the whole nation. But it is necessary that the executive authority be vested in one man, Wilson explained, for he can act with greater speed, unimpeded by colleagues with whom he must debate before resolving on a course of action. “In planning, forming and arranging laws, deliberation is always becoming, and always useful. But in the active scenes of government, there are emergencies, in which the man … who deliberates is lost,” Wilson declared. The president must, therefore, be able to “clean house” when he finds much of his house arrayed against him.
The Trump administration has requested that the U.S. Supreme Court — which, incidentally, is the only federal court actually named in Article II of the Constitution — intervene in many of the cases wherein inferior courts have blocked, halted, slowed, or parried the president’s lawful actions as chief executive. In some cases, the Supreme Court has declined to intervene over the objections of some of its more originalist members. One of those constitutionally devout members, Justice Samuel Alito, wrote in a blistering dissent, “As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused.” Castigating the majority of his fellow jurists for failing to protect the Constitution and allowing an inferior court to, seemingly erroneously and even unlawfully, force the Trump administration to shell out $2 billion to a wasteful government program, he continued, “Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. … A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them.”
The often egregious, usually erroneously-applied restrictions that inferior court after inferior court has placed on the sitting president is an affront to the American people and a grievous blow to the supposed impartiality and independence of the federal judiciary. The Supreme Court must step in and put a stop to the incessant temporary restraining orders and preliminary injunctions being issued by so many inferior courts against the Trump administration. If the high court does not fulfil its duty, it is damning the country to be ruled forever by the Deep State that could spark national outrage and division of a depth unseen since the 1860s.
SOURCE: THE WASHINGTON STAND
