Playing court jester, or put another way making gestures to the courts, is a common practice that some believe needs to end. There is no constitutional right to Judicial Supremacy. In fact, the other branches are expected to use the constitution to point out to the Court, where it has no business meddling.
The courts do not stand above the other branches of government. They do not get to legislate. They certainly do not have executive power. By that, I mean, if Mr. Obama signed an executive order, and President Trump signs one that changes or erases it, the Court has no business here. Except it and Trump-haters thinks that it does.
Obama’s Executive DACA order was not law. It was a presumption of executive exercise. His opinion. As such, Mr. Trump’s similar exercise (his opinion) undoing that is a legitimate exercise. But the Supreme Court was invited to offer its conclusion, and it has. In this instance, one President’s executive order has more power than another.
Just don’t tell that to Mr. Trump’s successors, not that we expect them to suffer a similar burden. Their EO’s will be mighty, indeed. Returning (something-something) to the Office of the President. But why wait. Mr. Trump can return something to the office it sorely needs. A set of balls.
Do you think the American people would ever have ratified the Constitution if they had been told “the meaning of this document shall be whatever a majority of the Supreme Court says it is?” —Justice Antonin Scalia
Daniel Horowitz leads a recent piece with this quote on this subject. The matter (or problem) at hand being the long-standing deference to judicial supremacy that is neither legitimate nor necessary.
The question for Trump and conservatives headed forward is where to go from here, now that so many have realized what I’ve been warning about for years: namely, that the minute you agree to the premise of judicial supremacism – that the courts stand above the other branches in deciding fundamentally political questions – no amount of “appointing better judges” will rectify a judicial North Korea. The solution is to uproot the concept of judicial supremacism altogether.
Horowitz is not suggesting the President defy the courts. He says (in the context of the DACA question),
The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts “must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.” Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it’s following the law being defied by the judiciary.
Obama’s DACA order goes against the laws passed by congress. In revoking the Obama Order, Mr. Trump has returned us to the law, but the Court just said no, you can’t follow the law.
That was a lot of prattling to get us to the question. Should President Trump Tell the Courts to Go to Hell on DACA?
For more from Horowitz on the matter, and there is plenty to chew on, look here.