A President's Executive Order forever Prevails over Any Judge's Decision
―but until the Congress Steps in, so Directed by the US Constitution
In recent months, haven’t American people learnt enough how an American President’s executive orders be easily overruled by the courts? It is widely known that the executive orders that have been defeated by the courts are involved with immigration, traveling bans, sanctuary cities. All these issues can come to one word: sovereignty, the sovereignty of this nation.
No matter if one feels pissed of or ecstasy about the defeats that the executive orders have suffered, beyond what both sides of people are aware of is that never in American history has the US Constitution been trampled so brutally. The courts that blocked the president’s executive orders are found even just at the district level. American people’s “supreme Law of the Land” is played upside down; no wonder the USA as the world knows has become more and more immoral and lawless. The tail wags the dog!
No matter if a person is self-labeled as conservative or liberal, that the president’s executive order can be defeated by court only shows that Americans have long lost their true concern about the US Constitution, although they all would chant no one is above the law. This author will not doubt one minute that their education would enable them to finish reading the Constitution in 30 minutes. But do they, in addition to reading, study, think, and apply the Constitution in their daily life, particularly the political life? Now, then, let’s read:
“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.”
Dear friends, do you know to whom this oath is specified by the Constitution? “The American president, and the only one!” You are absolutely correct! Now, then, you must consequentially accept that the US Constitution thus endows the American president as the only person with the privilege that whatever he says and decides officially is doubtlessly supposed to be constitutional. Subsequently, anything on the opposite side of his saying, action, or decision may risk being assumed unconstitutional if measured by the president’s oath.
It has long been a “tradition”, and indeed a superstition, in America that the court equates the symbol of the Constitution, although nowhere in the Constitution is such a superstition even lightly indicated. Typically, a decision from the Supreme Court is produced by the voting of the Justices. Can anyone explain how a five-to-four or four-to-five vote must flip-flop the nature of the constitutionality of any issue in controversy? Yes, the five-to-four vote does guarantee a power endorsing a green light, but not necessary constitutionality.
Allowing a court’s decision to obstruct a president’s decision, American people would have allowed the creation of a dictatorship dominated by what can be unconstitutional over what by the Constitution is presumably constitutional. Today, such upside down dictating power is even allowed to be abused by lower courts, from which the decision is made by one single judge instead of the voting cast by multiple judges. What makes it even more dreadfully is that the decisions so made by these judges are exactly in violation of the Constitution by every measure.
On the decisions involved with traveling/immigration restriction, these judges’ decisions are in violation of at least three doctrines from the Constitution: (1) Amendment XI; (2) Amendment I; (3) the last clause of Article VI in the original text of Constitution of 1787. On the decision involved with sanctuary cities, the judges openly side with insurrection, violating the common defense clause in the Preamble (Please refer to the other article: Sanctuary Cities at this site).
Here is the text of Amendment XI: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States …by Citizens or Subjects of any Foreign State.
Obviously, making decisions against the president’s executive order, these judges are favoring the “Citizens of Foreign State”. What is hilarious is that no suit was even filed by these citizens of foreign states but only these judges seemed hurrying in making favor. It is true that in some of the cases it is the Attorney General of a state (AG) brought up the case. However, with their right conscience in mind, the court can decline to review the case with a simple reason: the AG has represented people whose law suit against this country is unacceptable by the Constitution. One may argue that the people whom the AG directly represents are families that have been legal residents in this country. Fine, then, but the AG has legitimate reason to represent them only if the president’s order has imposed harm on the status of immigration or right of residence of these legal residents. These families have no right to enable their foreign relatives to gain status to place Amendment XI under trampling; the AG should have fended off their request if he ever possesses any sense of defending the sovereignty of this country.
As a matter of fact, the AG’s improper representation can only place the integrity of America as a nation under high risk. America’s sovereignty is dissolved from within by the alliance of the arrogant judges and the AG’s. Why? With the broad spectrum of human demography unique to this country, any ethnic group residing in this country would inevitably have relatives in other countries. If one day America is at war with a certain country, will the AG represent some families to stop the president’s war decision against the hostile country from which these immigrants have come? These immigrants need to demand with only one reason: the lives of their relatives are highly jeopardized by the president’s decision going into war. How is loss of life not a matter far more serious than loss of immigration qualification or traveling opportunity? If the AG gains the support of a judge and the presidents order is blocked, Americans, you are made surrender even before the war starts, as your president, the commander in chief, is crucified absolutely unconstitutionally from bottom up. So much on this, we have not even mentioned how the insurrection force encouraged by sanctuary cities would have added fire under the frame of crucifixion.
Here is the text of Amendment I: Congress shall make no law respecting an establishment of religion…
It has been a long tradition for the court to have this Amendment read as “government shall make no law respecting a religion.” Let’s set aside how mistaken this rewritten statement could have been, but just follow what the court sees as legitimate. Reading from the executive orders that are refrained by courts, we do not find any word suggesting Islam or Muslim. It is the AG and the various courts that, for their purpose, sham in these words in order to libel these orders as to have targeted at Muslims. Then, obviously, religion, a specific religion, is the motivation to have inspired the action of the AG and the courts. They then even violate their own version of Amendment I. How, through what they did, the AG and the court have not made law respecting a religion? So hypocritical! As a matter of fact, beyond what the AG and the courts want to swallow, placing Muslims as the victims of the President’s order, the AG and the courts just objectively equate two groups of people as one. The reason is very simple: through their action, they simply declare that people fitting the definition of terrorists in the presidents order is found from no other group of people but Muslims. Literally, it is the excessive rate of terrorists, but not the excessive rate of Muslims, from the corresponding 6 or 7 countries that has thrusted forward the president’s decision. There are far more Islamic countries in the world besides these few countries, but they are not in the list to be targeted by the executive orders. The AG and the courts absolutely have no right by any measure to contort the executive order and then go their way having the Constitution trashed.
Here is the text of the last clause of Article VI: …all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution
Clearly, unlike the Oath or Affirmation specified for the president, the Oath or Affirmation this clause refers to has not specified how it should be recited. The only specification it carries is two words: TO SUPPORT! The Constitution offers no presumption and does not entitle what these executive and judicial Officers decide officially is to preserve, protect and defend the Constitution. Inflating the obligation concept of support into the power to “preserve, protect and defend the Constitution” is an action of power usurpation in essence. If anyone does not visualize how these two groups of words can play the big difference in the oath, he can rewrite the oath, then difference is immediately obvious to him:
For the president, the Oath is so rewritten: …I will to the best of my ability support the Constitution of the United States.
For all other executive and judicial Officers: …I will to the best of my ability, preserve, protect and defend the Constitution of the United States.
With the oath rewritten in this manner, the American president is bound to become the puppet of all other officers who are supposed to be subordinated to him, because any of them can tell the president: “What I am doing is to preserve and defend the Constitution, support me, president!” (Indeed, it is currently what the AG and the courts are unlawfully doing.)
Of course, it is only an ideal situation to have been assumed by the Constitution that the president’s official decisions are all resulted by considerations conformed to the Constitution. The reality may be to the contrary. While opposing certain president’s decisions, the court may indeed be on the side of the Constitution. However, this cannot constitute a reason for the court to gain power to block the executive order. Nowhere in the Constitution is found that judicial review or judicial power can lead to power for the court to jeopardize or even nullify the president’s decision.
Yes, the court can declare that a certain decision from the president is unconstitutional, but the court must also respect this part of the Constitution: In all cases…the supreme Court shall have original Jurisdiction…other cases…appellate Jurisdiction…with such Exceptions, and under such Regulations as the Congress shall make. In other words, instead of fantasizing itself having the power to stop the president, court of any level should only and can only recommend to the Congress to take action to stop the president. Only the Congress is empowered by the Constitution to nullify the president’s decision.
The sad thing is that the above procedure has never had a chance to seed in American people’s mind due to the disastrous superstition that “The Supreme Court is the Constitution (words of Justice Felix Frankfurter)” This superstition starts from the days of the case of Marbury v. Madison (1801-1803). The legacy left behind by Justice John Marshall who presided over this case was wrongfully interpreted by everyone ever since then, including even august figures like Thomas Jefferson and James Madison. Nevertheless, what Marshall enforced was to make choice from two laws and select to enforce the one that more essentially matches the approval of the Constitution. He did not create a law and thus asked everyone else to take it for granted that the law so created was by itself inherently Constitutional. He did not go beyond his power.
The encouragement of improper inflation to the power that the justices could have possessed began from Jefferson and Madison; the second one is said to be the father of the Constitution. Dissatisfied by Marshall’s reasoning in formulating his decision, they both sought impeachment to have Marshall removed from the bench. However, the Constitution does only provide impeachment as a power to remove the president. Seeking such a power toward a justice, these two prestigious framers certainly wrongfully preached to the American people that a justice equated the president in weight measured by the Constitution. Since then, step by step, the Supreme Court gradually evolves into an office where power can be abused without restriction. The abuse is encouraged by two misconceptions: (1) no one can fire the Justice (They sure can be fired, see Rebigsol's other article Any Justice in Supreme Court Can Be Removed―100% Guaranteed by the Constitution); (2) All verdicts rendered by them is ironclad with Constitutionality (They sure are not necessary so because the Constitution does say with such Exceptions, and under such regulations as the Congress shall make.)
While Jefferson and Madison improperly inflated the constitutional prestige of the justices, they did have a clear mind that the Constitution concluded no authority for the Court to interfere with the executive in certain situations. As a matter of fact, the outcome of the case of Marbury v. Madison was that Marshall chose not to interfere with the executive, regardless of what reasons was behind his choice. What was actually missed in Marshall’s reasoning was that he should have presented that Marbury was not entitled of the legal status that Section 13 of the Judiciary Act would grant because he as an individual was neither a state nor a foreign minister. But instead, Marshall chose to express the reason leading to his decision as Section 13 being unconstitutional and therefor unenforceable by court. Marshall stood on no ground to cite Section 13 being unconstitutional. So citing, he left behind a “legacy” that the Constitution is what the court says it is.
Here come some flash cards about how power is abused by the American court system. “Do Judges make law? ‘Course they do. Made some myself (words of Judge Jeremiah Smith, NH Supreme Court).” True, the Judges need to make laws from time to time. The problem is who can put these judge-made laws under the gauge of the principle of check and balance. Instead of respecting this principle, which the judges may emphasize to anyone else, they seem enjoying a freedom of toying with the Constitution. “…If we don’t like an act of Congress, we don’t have much trouble to find ground for declaring it unconstitutional (Words of Justice J. M. Harlan).” The phrase “with such Exceptions and under such Regulations as the Congress shall make” in the Constitution is allowed to be so non-existing to the judges. In American history, for some reasons easily concluded but never revealed, the Congress is seldom seen exercising the power stipulated in this statement. Rather, the Congress just seems forever unbridle the court’s apatite of power abusing by feeding it with more and more spoilage. The court’s ever intensified power expansion nowadays has allowed itself to direct cases with utter irresponsibility and unprofessionalism. Quoting only two words such as “equal protection” from the Constitution is good enough for the court to render an armor under which undeserving people can enjoy what is otherwise forbidden by common sense, by tradition, by moral, by what is required of for a long term existence for a healthy society, or even by another part of the Constitution. By only the consideration of merely “equal protection”, why has NOT the court forbidden the police from arresting thieves or rapistist? Do the judges ever care about that equal protection is scaled with respect to social value of people? No equal social value, no equal protection, impeccably and indisputably legitimate! Otherwise, in the name of equal protection, every citizen can demand the country to give him/her fifty special agents for protection like the president. The out of control abuse of power today has developed into encouraging judges at lower courts to join the frenzy of toppling a president’s executive order, and even singlehandedly in some cases. The situation is backwards. The president does not have the control he deserves, like a dog who is wagged by his tail instead of the dog choosing to wag his tail. History told us that when a country gets into a state of the tail wagging the dog, this country is on the way approaching her debacle. Dear fellow Americans, the tail wagging the dog has nothing to do with democracy! It is just the beginning of the ending of law and order; law and order are elements vitally pivoting live or death of any society.
From the point of view of power cascade read from the Constitution, the more proper way to handle the conflict between the opinion of the courts and the President’s executive order or the act of the Congress should be like this:
When the court finds an executive order or a Congressional act unconstitutional, the court should recommend to the Congress to have the order or act stopped. Upon receiving the recommendation, the Congress should have some corresponding committee to act quickly, such as within 48 hours, to decide if the order or act needs to be blocked or left intact. Either blocking or leaving intact, however, within a certain time limit, such as 30 days, this committee would assemble the Congress to determine through voting to have the executive order or act confirmed or rejected. At no time is a court allowed to have power to kill an executive order or act. Otherwise, it must create such chaos that unconstitutional decision from the court has the opportunity to kill constitutional decision. The Constitution is thus trashed.
The clause with such Exceptions, and under such Regulations as the Congress shall make actually leaves the ultimate appellate jurisdiction to the Congress. The committee mentioned above should also from time to time review the judge-made laws to prevent power abuse by the court, particularly if there is prominent complain against any of such laws.
One may argue that wouldn’t it lead to Congress dictatorship in case the court’s opinion or decision is constitutional but gets killed by the Congress voting? That is right! Congress dictatorship is what this country supposed to have, it is what the Declaration of Independence dreams of setting up. If the Congress leads us to hell, it is what the people have chosen, and they must be responsible for their action at the poll. If the Congress becomes hellish, the people have opportunity to renew it in every 2, 4 or 6 years. If the court leads us to hell, however, we must live with it for the life time of the judges, but the Constitution says they are not entitled to do so, but also, until the president starts the move to have a judge in concern fired. At its worst, how is the Congress dictatorship not better than the court dictatorship if we must choose one in between, or how is the court dictatorship not worse than Congress dictatorship?
Nevertheless, according to the Declaration of Independence, the foundation of American government is laid on such principle that it derives its just powers from the consent of the governed. So, fellow Americans, the Congress members and the president obtain their powers with the direct consent of you who are to be governed, but the judges do not obtain your direct consent. Therefore the judges can only put up suggestion or advice, positive or negative, to the agents you directly approve of; the judges do not have the power to paralyze the agents whom you empower. No part of the Constitution allows them to do so.
Dear Americans, if your spine does not shudder when you encounter the mentality that the Constitution is what the court says it is, you have made yourself ready to give away your country.