Before he enter on the execution of his office, he shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”
–U.S. Constitution, Article II, Section 1
This is the oath President Trump and every president of the United States took prior to becoming the chief executive. Every member of Congress swears to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” When a president or a legislature is directed to perform a duty that is unconstitutional, he or it must refuse or else he or it would, thereby, break this oath.
Due to recent unconstitutional actions taken by the judiciary, this scenario needs be examined as more than a theoretical exercise. A U.S. District Court in Washington, D.C. has ordered President Trump to continue President Obama’s DACA (Deferred Action for Childhood Arrivals) program. According to the court, President Trump must not only keep the program in place, but also continue accepting new applicants. A federal court is now ordering the president to perform an executive order that even President Obama stated was illegal before later issuing it.
Does a district court have the power to order the chief executive of the United States to take an illegal executive action? Does President Trump simply abide by this order, thus violating his oath of office to defend the Constitution? Or does he have another option?
Court Immigration Case Abuses
While abuses by the court have been well documented, there has been a change in the tyranny unleashed by the courts in the past few years. As Daniel Horowitz lays out in Stolen Sovereignty. How to Stop Unelected Judges from Transforming America, the courts have now shifted their attack to America’s national sovereignty. By overturning the Legislature’s precedent of plenary power over immigration policy, the courts are prepared to take away the American people’s ability to determine our immigration policy.
For two centuries, the courts viewed immigration policy as a political decision to be decided by elected representatives. The court unanimously held in the Chae Chan Ping v. United States (1889):
[T]hrough the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy[.] … [Immigration matters are] not questions for judicial determination[.] … [I]t must be made to the political department of our government, which is alone competent to act upon the subject.
Immigration policy is not for the judiciary to decide. Immigration policy is a political decision that rests solely in the political branches of government, the Legislative and Executive Branches. Later in Nishimura Ekiu v. United States (1892), the Supreme Court ruled (emphasis added):
It is not within the province of the judiciary to order that foreigners who have never been naturalized, national and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.
Later, Knauff v. Shaughnessy deemed that when an illegal alien stands before Executive Branch officials, that is his due process. He cannot turn around and use our federal court system to infer 5th and 6th Amendment due process rights. The courts have readily understood the plenary power doctrine and not granted standing to illegal aliens until Donald Trump became president.
President Trump’s Response
President Trump should follow the explanation Abraham Lincoln gave in his fifth debate with Stephen Douglas. Lincoln described the Dred Scott case and Douglas’s lack of inquiry into its judgment:
[H]e swells himself up and says, “All of us who stand by the decision of the Supreme Court are the friends of the Constitution; all you fellows that dare question it in any way, are the enemies of the Constitution.” Now, in this very devoted adherence to this decision, in opposition to all the great political leaders whom he has recognized as leaders – in opposition to his former self and history, there is something very marked. And the manner in which he adheres to it – not as being right upon the merits, as he conceives (because he did not discuss that at all), but as being absolutely obligatory upon every one simply because of the source from whence it comes – as that which no man can gainsay, whatever it may be – this is another marked feature of his adherence to that decision. It marks it in this respect, that it commits him to the next decision, whenever it comes, as being as obligatory as this one, since he does not investigate it, and won’t inquire whether this opinion is right or wrong.
Lincoln attacks this view of accepting a court decision based not on its merits, but its source. Previously, in their third debate, Lincoln even mentioned the oath of office taken by every legislature binding its members’ actions in accordance with constitutional principles.
President Trump should use his position of chief executive to shine a light on the constitutional malfeasance being perpetrated by the judiciary. President Trump and Attorney General Jeff Sessions should explain their legal position and assert that the president must act in accordance with the Constitution in order to keep true to his oath of office. President Trump should then announce that he will not issue new DACA applications despite the D.C. court ruling. This stand by the president will deal a tremendous blow to the power of the Judicial Branch. Fighting back against judicial tyranny will provide Congress the momentum to pass legislation to rein in the courts.
President Trump should then meet with Republican leaders in the House and the Senate. He should ask the Senate to impeach all the federal judges who have issued rulings against his immigration policies, citing legal precedents. He should then ask both houses to pass legislation limiting the jurisdiction of the courts per the Constitution’s Article III, Section 2. This legislation should be redundant, since the precedent clearly set by the courts was that immigration policy would not be determined by the judicial branch. However, this would clarify the matter so that even the most progressive judges could understand.
Regain Our Democratic Republic
We should have national debates on immigration policy. The public should speak through its representatives to determine policy, as it has throughout our nation’s history. If the left wants drastic changes, leftists should go through the elected branches of government to implement those changes, not through unelected judges. Fundamental in our founding is the principle that political matters will be decided by representatives of the people. The checks and balances of our system of government have been damaged almost beyond recognition. Alexander Hamilton clearly stated that the Judicial Branch is the weakest of the three branches and therefore would not possess the ability to usurp power from the other branches. Now the Judicial Branch is the sole decider on constitutionality instead of all branches of government assuming that responsibility.
While a president ignoring a federal court ruling may seem like an extraordinary measure, we are living in extraordinary times. In the 1954 Galvan v. Press ruling, Justice Felix Frankfurter explained that the plenary power doctrine is “as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Now that the courts have corrupted one of the most accepted judicial principles, an extraordinary measure must be taken.
It is long overdue for America to have a national dialogue over solutions to the unconstitutional overreach of the courts. When Benjamin Franklin was asked after the Constitutional Convention what form of government the delegates had created, he responded, “A republic, if you can keep it.” Are we willing to confront the courts in order to keep our republic intact?
Ryan Walters is a high school teacher in McAlester, Oklahoma. He teaches Advanced Placement courses in world history, U.S. history, and U.S. government. He can be reached by email at email@example.com or on Twitter @ryanmwalters.
This article was originally published at American Thinker. Read the original article here.