Said Mike Johnson, quoted in "Speaker Mike Johnson floats eliminating federal courts as GOP ramps up attacks on judges/Republican lawmakers are setting their sights on the judiciary following court rulings that have halted Trump's agenda" (NBC News).
The Constitution gave Congress the power to create the lower federal courts, and that seems to imply that Congress can eliminate them. Obviously, it hasn't done that, and there are some arguments that maybe it can't un-create them at this point in the development of federal law, but when speaking about Congress's power over the federal courts, it's standard to refer to its power to completely eliminate the lower federal courts, and to use that power as a basis for inferring a power to cut them back in less drastic ways.
Johnson, a former constitutional attorney, later clarified that he was making a point about Congress’ “broad authority” over the “creation, maintenance and the governance” of the courts. Article III of the Constitution established the Supreme Court but gave Congress the power to “ordain and establish” lower federal courts.... Despite Tuesday's remarks, Johnson appears to be focused on a middle path to push back on federal rulings against Trump as some GOP hard-liners push for impeachment votes against some judges.
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58 comments:
The other judges are going to have to pressure Boasberg to resign so they all don't lose their cushy jobs.
The conversation starts like this: "Looky here, motherfucker..."
Well Congress can reduce jurisdiction, their effective area, to the individual districts and limit plaintiffs to those who actually reside in the district and claim harm. No more instant Class Action claims.
Please, Mike, threats? Grow up.
NBC simply not hiding their biases these days. Still not hearing rhetoric on the right that compares to the left attack on Judges and Justices. There were over 40 arrests on the assault of the Portland federal courthouse. Then there were the arrests related to people stalking Supreme Court Justices. And we know Biden endorsed Hunter’s pardoned, because Biden made negative remarks about federal judges and prosecutors related to his son’s pardon.
Glenn Reynolds often suggests a three judge panel if a nation-wide TRO is requested which appears to have been prior practice though I'm not clear on when it changed
Don't confuse a threat with a promise
This shows the problem with DC Republicans. They don't want to fight. They throw their voters some "red meat" but then quickly back-away to please their uniparty buddies. "Oh Gosh, we weren't really going to that, we were just...blahblah"
Of course, there's no logical reason to believe that if Congess can create districts courts it cant eliminate them. Just as the Congress can expand the SCOTUS and change the number. If tommorrow, a Scotus judge retired, there's nothing to stop the congress from cutting the number from 9 to 8. Or expanding it to 12 if it wanted.
But when did logic ever apply to the Federal courts? LOL. Show me abortion anywhere in the constitution. Or the power of any one district judge, anywhere in the USA, to block the POTUS?
IRC, a winsconsin judge was dumped as chief justice based on a new law, and she sued in federal court to get it overturned because blahdeblah. And the case wasn't dismissed out of hand, but tried. So, judges can do anything. So there's no reason to believe that if Congress deleted a district court, Roberts and the democrats wouldn't stop it. Because... made up reasons!
Trump and congress need to understand the Democrat Judges are practicing lawfare. They will push their power to the utmost and its up to them to fight back. Going "Please be reasonable" isn't working.
"But desperate times call for desperate measures, and Congress is going to act."
Doesn't sound like an idea being 'floated' to me, but then, I was also told that the Epstein files would have been released by now, too.
Only the Supreme Court should be able to enjoin Congress or the Executive.
Enact this law and most of the bullshit we see goes away.
It's a clarification. If you feel threatened by that it's because you are in favor of the courts overstepping their charters. The threat was Chuck Schumer's bill to pack the Supreme Court, which had the effect of encouraging Trump voters to work harder.
So please, if you want to police threats, start with your ultra-violent and big-mouthed compatriots on the Left.
Judge Roberts had better get off his *** and reign this in before someone does it for him.
"...and there are some arguments that maybe it can't un-create them at this point in the development of federal law..."
What possibly could those arguments be? Past congresses can't bind future congresses, I was taught.
Jefferson and his party had Congress eliminate some Federal courts in 1802. Jefferson’s open object was to reduce Federalist influence on the courts. Admittedly, the eliminated positons had only recently been established by the Federalists, but I don’t suppose that matters as far as the principle of the thing goes. I should say eliminating District Courts is a power Congress clearly has. I’m not saying it would be wise to use that power.
This is just a way to educate the majority of us who don't know that the federal courts aren't under the Supreme Court. They can't reform the lower courts until the public understands where the authority lies. It's a throat-clearing.
There is most certainly a cogent argument for splitting the 9th Circuit and it jurisdiction(s).
I guess that's one way to cut spending.
What this “we” business, Mike Johnson? The only one with that kind of authority is Elon Musk.
victoria said...
Please, Mike, threats? Grow up.
I agree. Shut your mouth Mike.
Just eliminate these pharisees and be done with it.
Left Bank of the Charles said...
What this “we” business, Mike Johnson? The only one with that kind of authority is Elon Musk.
I love it when progs have competitions to make the dumbest jokes possible to improve their status in the tribe.
Dude1394 said...
Judge Roberts had better get off his *** and reign this in before someone does it for him.
You are under the impression Roberts cares about the constitution or the country.
Roberts has clearly been a traitor from day one and he was appointed to the position by another traitor who knew exactly what he was doing when he appointed Roberts.
I'm surprised people are still whining about the Epstein files not being released yet. They were whining about the JFK files up until last week when they were in fact released. Better late than never.
There are in fact perfectly valid reasons to check the Epstein files very carefully before releasing them. One reason is that names need to be disambiguated, to make absolutely sure we have the right people, not the wrong ones. Is there a 'John Roberts' on the list? There are probably 100+ John Robertses in the US, so you better make damned sure you know which one it was, and not just let people assume it's the Chief Justice, if it's not.
There are lots of other examples of duplicate names. When RFK was assassinated by Sirhan B. Sirhan, a perfectly-respectable Arab-American businessman in LA named Sirhan Sirhan with a different middle initial had a very unpleasant couple of days. Even famous poeple sometimes have duplicate names. There used to be two famous Paul Simons, a senator from Illinois, now deceased, and a singer, still with us. There are two Tom Hollands, the Spiderman actor and the cricket-playing author of Dominion and other ancient history books. Examples could easily be multiplied, and the DOJ needs to make damned sure we know which Joe Schmo is on the list, and which other Joe Schmos are not, before releasing it.
Here's another reason. All the people saying "release everything" seem to have forgotten that a lot of the evidence is explicit videotapes of people having sex with underage partners. It's illegal to even watch that stuff unless you're a law-enforcement official specially authorized to do so, and it cannot be released except without massive deletions or blurring, which takes time.
Patience, grasshoppers. Let the ants do their work.
Oops: except without ] except with
Someone else has been reading The Art of the Deal.
What is the Republican Congress doing to shore up, support and codify the very popular initiatives that Trump and his people are pushing?
Why can't Congress tighten up jurisdiction and standing for cases brought in the USDC's seeking the issuance of TRO's with nationwide effect?
Where are the bills closing down the Department of Education, eliminating birth right citizenship, or any of the many things that will otherwise be undone by EO on the first day of the next Democrat administration?
That is exactly what happened four years ago, and will continue on this bizarre course if Congress contiues to act as if they are merely innocent bystanders to the nation's governance.
Democracy dies in courtship with "benefits".
Dr Weevil: "There are in fact perfectly valid reasons to check the Epstein files very carefully before releasing them. "
Quite correct. Not to mention the reported late arrival of a massive amount of the evidence previously withheld by the usual deep state types.
Roberts must man-up and do his job, no?
Whatever the Speaker ends up supporting wrt changes to the District guideposts, he has to take care that legitimate injunctions can somehow be done when required. So there needs to be a higher bar, but not one that takes too long to which to navigate. Someday there’ll be another Democrat president…
Chuck Schumer is gonna reap an anal pork probe from space aliens, the sonuva B.
It's kind of a pissing match at this point with the branches marking their territory. John Roberts just does it differently than Mike Johnson. It's all good. This is how men act.
Trump REALLY got screwed by the courts, again and again. If he had not won, he would likely not be a free man today. This isn't payback so much as... reform He was fighting for his life, and "being a gentleman" now/forgiving and forgetting is not the answer, he and we know.
"Fight, Fight, Fight". I believe in Rule of Law over violence, but I am fully on board with non-violent pissing matches like this as the fellas work it out in the real world. Hopefully everybody learns a lesson, and nobody dares think they're the Top Dog who can do what they like whereever they like because truth is, we need to carve out boundaries and respect them, just like the feral animals do...
~Derve.
Of course, Johnson isn't going to do anything and probably won't even try to do anything. However, even if Congress somehow found the votes to eliminate some district courts or narrow their scope for action, a district judge in Hawaii would declare it null and void and it might only get overturned at SCOTUS by a 5 to 4 vote.
I am not joking. Such a law would be injuncted almost immediately by those very courts.
Somebody, please do a wellness check on Chief Roberts.
He may be having a connipshit after hearing about this.
This is just a shot across the bow. Like in the case of tariffs, the value is in the threat to use them.
Although there were some pretty good ideas expressed here. I like the idea that only the Supreme Court can enjoin the President.
I don't want Congress to limit the federal court's jurisdiction, I want it to reduce the amount in controversy requirement for diversity cases to $1,000, so the federal judges realize they are nothing more than glorified claims court judges.
"and there are some arguments that maybe it can't un-create them at this point in the development of federal law"
"At this point"? That argument would appear to be saying there was a time where the courts could be un-created but that point is past. So- what is that point and who defines it?
Also, there is no constitutional requirement that Congress must fund law clerk salaries, and Congress can cut the discretionary budget by 50% as a warning shot.
Judges and courts aren't the problem. The problem is a do nothing Congress that keeps delegating to executive agencies to actually make law. No wonder Trump thinks he can order whatever he wants.
Hawaiian judge responds: I’m sorry Mike. I’m afraid I can’t let you do that…
Yancey, Congress could also amend the jurisdictional reach of ALL the federal courts, and thereby take that power off the Hawaiian judges' pu-pu platters.
"Only the Supreme Court should be able to enjoin Congress or the Executive.
"Enact this law and most of the bullshit we see goes away."
Ridiculous. The Supreme Court hasn't the number of judges or the times of hours in a day to apply itself to all the manner of legal disputes that arise across the nation every day. Allowing lower courts to speak on legal disputes takes away allows for a more manageable sorting out of disputes without (or before) the disputes rise to the level of requiring the Supreme Court's attention. You're advocating tyranny by Congress (or by President).
I should have proofread a bit more carefully. My comment is a tad untidy in a couple of places.
"Ridiculous. The Supreme Court hasn't the number of judges or the times of hours in a day to apply itself to all the manner of legal disputes that arise across the nation every day."
Trump could address that by appointing 10 more justices. I understand the democrats are all for that anyways.
There are a couple of issues here. I don't believe the judiciary has the constitutional authority to enjoin Congress or the Executive (including the president's subordinates). The Constitutional doesn't confer on the judicial branch the right to serve as the ultimate authority over what the other branches can or cannot do.
The other issue is nationwide injunctions. But regardless of whether they're lawful given the geographical limitations of a single court's jurisdiction, they should never be applied to Congress or the Executive for the reason already stated: It violates separation of powers for courts to tell Congress and the president what they can and cannot do. IOW, a nationwide injunction against a private company may be fine, but not against the other branches of government.
Elizabeth Price Foley has offered up a solution that seems reasonable: https://archive.is/iscwI (workaround to WSJ article)
"exercise [SCOTUS] authority under the Rules Enabling Act of 1934 to amend the federal rule on injunctions."
I think this needs to be done, particularly for the DC Circuit. The DC Circuit is reminding me of the Travis County DA at the end of Rick Perry's time as Texas governor. Since the Texas Capital is in Travis County, the county's DA office decided to appoint itself as lead investigating agency for any malfeasance on the members of the Texas state government. Nobody gave them that authority, but the legislature did at some point authorize funds to allow them to do it. When the County DA actually got drunk on her own power and was arrested for a DUI (which should have been a DWI); Gov. Perry told her to resign. She refused, so he vetoed her funding, and the DA had the Governor arrested for threatening a public official. She judge shopped for a friendly Judge in next door Bexar County, who said "guilty"; and then the Texas appeals processed stopped the whole charade.
The DC Circuit needs to be limited before a real Constitutional Crisis happens when one of these absurd Judges attempts to hold an elected or appointed official in contempt and have them arrested.
Johnson can threaten and bluster all he wants, but nothing will pass until you get enough D's to get past a filibuster, or if the R's want to change the rules and make it unfilibusterable.
You'll notice that Thune (Uniparty- SD) has said nothing. That's because he knows the RINO sisters and Mitch the Bitch McConnell will never vote to make a Court Reform bill unfilibusterable. And he and the Senate R's don't care.
Johnson could put something quite simple in the Reconciliation. And that's the only way it could pass. Bottom Line: Trump is going to have to do an Andrew Jackson.
"Trump could address that by appointing 10 more justices. I understand the democrats are all for that anyways."
Only Congress can create D/c positions. Or SCOTUS positions. Go read about FDR and his "Court packing scheme".
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
A. Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.
You always need a Lower Court. In the earliest days, the Justices of the Supreme Court "rode circuit", that is, each one acted as the federal trial court in a particular area. In those days there weren't all that many "federal cases", because the federal government wasn't enacting all that many laws, and folks were used to bringing their disputes to the local and State courts.
At various times in our history there have been efforts to minimize "federal cases", and turn such matters over to the State courts. Experience has generally not found such efforts to be satisfactory. Those "Negro" children weren't getting educated in 3d-rate "colored" schools, and once we "gave" their parents the vote, something had to change. And part of that change involved the federal courts.
Yes, I do think (and have thought for a long time -- even before Trump!) that there need to be some common-sense limits on the power of individual federal trial court judges to issue nation-wide injunctions against the enforcement of federal laws.
But this whole thing got kicked off by a federal judge issuing a Temporary Restraining Order ("TRO") against transporting some foreign gangsters (excuse me "alleged" gangsters) out of our country to another country. If you practice law at the lowest federal level you know that a TRO is normally the easiest order you can ever get. It's "temporary" (that's what the "T" stands for, it's only good for 10 days), and when I was practicing I almost never mounted a serious opposition to a TRO. Yes, of course, when the judge saw that the whole federal government was behind the acts he was purporting to "restrain", he probably said "Oh Sh*t!", but by then he was committed. Judges tend to dig in their heels when they're actions are challenged.
So are Presidents.
"Only Congress can create D/c positions. Or SCOTUS positions. Go read about FDR and his "Court packing scheme"."
It was a joke.
The district courts are very useful to Trump, as he gets to complain about the district court judges during the time period between losing in district court and losing on appeal. What would he do without that, just lose?
Trump loses a lot of these cases because he exceeds his statutory authority.If Johnson and Thune had the votes, they could change these statutes. If they don’t have the votes to do that, where are they going to find the votes to eliminate federal courts?
Trump loses a lot of these cases because he exceeds his statutory authority
...are you a betting leftie?
Yancey, Congress could also amend the jurisdictional reach of ALL the federal courts, and thereby take that power off the Hawaiian judges' pu-pu platters.
And the court would just say it is illegal Congress to do that which means you still have to go through the appeals process to get SCOTUS to do what SCOTUS has so far refused to do.
Yancey Ward said...
Of course, Johnson isn't going to do anything and probably won't even try to do anything. However, even if Congress somehow found the votes to eliminate some district courts or narrow their scope for action, a district judge in Hawaii would declare it null and void and it might only get overturned at SCOTUS by a 5 to 4 vote.
I am not joking. Such a law would be injuncted almost immediately by those very courts.
You shouldn't have to say you aren't joking. Everything you said is plainly obvious.
Most congressional Republicans are still traitors working against our country and against the citizenry including Johnson who is obviously a spineless snake.
Roberts, Kavanaugh, and Barret are still federalist plants and traitorous scum serving their real masters. They all take turns selling out the plain intent of the Constitution and blatantly ignore the 9th and 10th amendments. Roberts is obviously compromised and has been for a long time. His Obamacare ruling was pure tortured logic and completely indefensible.
We have a long ways to go and many enemies to face. They hide their faces when they can but they pop up at obvious times.
We still do not have a budget. Why the fuck do we not have a budget? Johnson is a traitor and he will betray this country again at the first opportunity.
If SCOTUS refuses to take a case by the end of the year, I predict the district courts start getting ignored completely.
Ah Cookie--you are absolutely right that the Supreme Court--which takes about 100 cases (or less) each year doesn't have the time to rule on every request for injunction in the United States. That's the job of the lower courts--at least ab initio. But we now have lower court judges who have a taste for "national injunctions". That's a habit that has to be broken, because virtually every one of those injunctions is going to get appealed. If it's a question of whose authority is being abused, my guess is that it's the partisan hacks in black with delusions of grandeur.
If a judge can play President,
why oh why can't I?
"... reign this in before someone does it for him...."
He can rein.
He can't reign.
Althouse: "He can rein.
He can't reign."
"And even though he can name his son "Barron", he cannot make him a "Baron"."
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