Trump should disregard clearly unconstitutional court orders

The federal courts are making a power grab early in President Trump's term. Trump's executive order, a temporary entry ban from seven dangerous countries, was modest in scope and had ample precedent: Barack Obama had temporarily stopped immigration from Iraq, and Jimmy Carter from Iran. Historically, the president has been given a wide latitude when it comes to matters of national security, and the decision of whom to let into our country is clearly a national security matter.

And yet Judge James Robart made a radical move to reopen our borders to all these people from chaotic, ISIS-infested places like Iraq, Yemen, and Syria, potentially putting American lives in danger. President Trump is appealing, but it will take a while for the appeal to wind its way through the Ninth Circuit and probably the Supreme Court.

Judge Robart's reason is totally nonsensical: that the people of Washington state and Minnesota will suffer if people from Sudan and Yemen aren't allowed to enter the country. The exact opposite is true.

That's why President Trump should label this decision an illegitimate, unconstitutional power grab and disregard it. He can continue to appeal it but make it clear that he is not going to comply with the restraining order, even temporarily.

I looked at this last year in a brief, but inconclusive, discussion with Nero Germanicus.

I'm reposting my thoughts from the thread How Liberal Judges Took Control of 70 Percent of US Appeals Courts from September, 2016.

They will have to use Congress's authority to realign the lower courts to make wholesale changes. Newt Gingrich has written some position papers on this.
A new Judiciary Act of 2017 would need to pass cloture in the Senate, however.

Nero Germanicus writes (not to me):
Unfortunately they all have lifetime appointments. They can be removed by the guilty votes of 67 Senators in an impeachment trial or by their resignation.

What about a new Judiciary Act that eliminates the court and replaces it with a new one of a different jurisdiction, based on Congress's Article III power to realign the lower courts?

Nero Germanicus writes:
The Judiciary Act does not amend the Constitution.
Article III, Section 1: “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 judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
Since the beginnng of the republic “good behavior” has meant not being convicted of a felony. Attempts to remove judges for their rulings have failed.

But still, if Congress eliminates the court, then no more judge, right?

Nero Germanicus writes:
Sure, if there were to be a conservative Republican super-majority in the Senate that could happen.
The article that we are commenting on has an incorrect assumption: that all the judges appointed by a president share that president’s political ideology. That just isn’t true.
One way to stop ideological judges is already in place: Blue Slips
Senatorial courtesy is manifested in something called the “blue slip.”
[snip]

Something to think about...
I recall reading somewhere the argument that Congress cannot eliminate a court because it would result in a judge losing his job, which would be, in effect, a "diminishment" of their compensation, which Article III Section 1 expressly prohibits. On the other hand, Article III Section 1 also says "during their continuance in office," so one could counter by saying that eliminating the Court discontinues their service, making eliminating their compensation Constitutional.
Anyway, an argument only lawyers and judges could love.

Nero Germanicus writes:
What happens to pending cases and trials in progress if a court is eliminated?

Good question.
What about this? With the population growth such as it is, Congress decides the the 11 circuit courts are imbalanced, and decides to expand them to, say, 15. To do this they shrink the sizes of the 8th and 9th and create 2 more in each.
The cases can remain in whichever new circuit has jurisdiction over the district or state. But what happens to the displaced judges? Does one assume that a judge "redistricted" out of a smaller 9th automatically moves over to the new 12th, or is the new 12th a virgin court where the President is free to fill it up with fresh nominees?

Nero Germanicus writes:
Which judges are retained gets determined by seniority.

Agreed, but the displaced would not automatically roll over to a new circuit; they would have to be renominated by the current President. That's my assumption in such a scenario.
End of discussion.

-PJ

Obama disregarded judge decisions and that was when he was blatantly disregarding our immigration laws and going after states that were! I don’t get why Trump hasn’t disregarded this.

Because President Trump has more integrity in his little finger than 0bama does in his whole body.

This phony decision will get slapped down hard, and when it does, the consequences will ripple through the whole judicial branch. In short, the Left, by perpetrating such blatant abuse of power, is hastening its own demise in the one remaining branch of the federal government from which it still wields power.

The draining of the festering swamp of the Left and Establishment (but I repeat myself) will take some time to fully achieve, but once done, the Democrat party will be relegated to minority status for decades to come...

This sounds like a debate about how many angels can dance on a pinhead. Congress is not going eliminate the myriad inferior federal courts below the SC. So why bother participating in parlor room games?

The issue is, has been, and will continue to be: the People vs the State. Before the framers were even born, the English civil war resolved the issue - via force of arms - in favor of the people over the monarch.

When we read the Constitution, we should not dismiss the importance that Art I (which creates Congress) is both the longest and most detailed section. The people's representatives have primacy over both the executive and judiciary.

While the executive has fairly wide latitude operating under the laws established by Congress, the judiciary is circumscribed by both the constitution and congressional prerogative.

It is Congress aka We the People who have ultimate authority over both the president and court system. We can determine what and what they cannot involve themselves with. This is our power and is the lawful, as well as logical means to resolving judicial overreach.

The way to push reform is to test the limits of the current arrangement. That's exactly what Trump is doing with his EO. It will resolve once and for all whether the People, with congressional delegation to the executive to carry out the execution of its will, is the sole determinant of national security.

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