“Today’s liberal critics of judicial review make two principal claims, both of which Learned Hand made too. First, they say that judicial review is repugnant to democracy. To allow unelected judges to void the actions of democratically elected legislators, presidents, or governors, the argument goes, is to allow the judiciary to subvert the will of the majority. Second, these critics say, judicial review “wasn’t enumerated in the Constitution and isn’t inherent in the court as an institution,” as Bouie put it. Thus, the act of abolishing judicial review does not raise any constitutional concerns.
These liberal critics are right on the first count and wrong on the second. The judiciary is undoubtedly the least democratic branch of government. But that is by design. The role of the federal courts, as James Madison once put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” Lawmakers and presidents sometimes assume powers that they should not, and popular majorities sometimes support those power grabs. The judiciary is meant to stand in the way even if judicial review thwarts the will of such majorities. Indeed, the judiciary is meant to act as a check against the tyranny of such majorities.
What is more, contra Bouie, this authority is firmly located in the Constitution and fully inherent in the judicial branch. According to 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 Framers and ratifiers of the Constitution understood the phrase “the judicial power” to include the power of federal judges to nullify legislative and executive acts that violate the Constitution, which is the power that we call judicial review.”
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“An examination of American legal history reveals the solid constitutional foundations of judicial review. Take the 1787 Constitutional Convention in Philadelphia, where the document was drafted. Speaking on July 21, Luther Martin gave voice to the consensus view. “As to the constitutionality of laws,” Martin observed to his fellow delegates, “that point will come before the judges in their proper official character. In this character they will have a negative on the laws.” George Mason made the same point on the same day. Under the Constitution, he said, judges “could declare an unconstitutional law void.” Nobody at the convention disagreed with any of that.
This same understanding of “the judicial power” is also evident in the Framers’ debates about a proposal that did not make it into the final document. James Madison was foremost among those at the convention who thought that Congress should have the constitutional power to veto state laws. Madison had watched as various states, under the Articles of Confederation, erected tariffs and other costly impediments to interstate commerce (among other barriers to the economic and political harmony of the new nation). Madison wanted to see a congressional check put in place against such state actions.
The states “can pass laws which will accomplish their injurious objects before they can be…set aside by the national tribunals,” Madison told the convention on July 17. In other words, Madison worried that judicial review by the federal courts might take too long in such cases and therefore wanted Congress to be able to move even more quickly against especially dangerous state laws.
Gouverneur Morris spoke for the opposition to that proposal. “A law that ought to be negatived,” Morris replied, “will be set aside in the judiciary department.” Morris did not favor a congressional veto over state legislation because he thought the veto power of the federal courts—judicial review—would do the trick.
Morris beat Madison in that particular debate. The Constitution would not contain a congressional “negative” over state laws. But both sides in the debate did think—indeed, both sides simply took it for granted—that the federal courts would have the constitutional power to “set aside” unconstitutional laws. They all agreed that the federal courts would have the power of judicial review.”
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“That same understanding of “the judicial power” is evident when you examine the records of the state ratifying conventions.”
“On his first day in the presidency, Biden began to tackle some of the harsh immigration measures imposed by Trump. He lifted Trump’s so-called Muslim ban, which prevented citizens of seven predominantly Muslim countries from coming to the U.S. He signed an executive order halting construction of a wall at the U.S.-Mexico border. And he sent the U.S. Citizenship Act of 2021 to Congress. Among other things, that bill set out to create a path to citizenship for undocumented people, clear backlogs in the family-based immigration system, and improve immigration courts.
However, many of those early wins—and supposed reversals of Trump’s policies—came with asterisks. Biden was right to rescind Trump’s “Muslim ban,” but nearly all families affected by the policy remained separated because of visa application backlogs. He was right to halt construction of the border wall (which was never going to work), but his administration failed to stop Trump’s land grab lawsuits and the federal government continued to seize private property along the U.S.-Mexico border through eminent domain. That ambitious immigration bill has gone nowhere.
Since taking office, Biden has cherry-picked which of Trump’s most controversial policies he’ll keep and which he’ll discard. The ones he’s kept are cruel, counterproductive, and are failing to please either side of the political aisle.
Key among them is Title 42, which critics say violates longstanding U.S. asylum law. The policy was first imposed by the Trump administration and allows Customs and Border Patrol (CBP) to expel migrants on public health grounds. Deprived of the opportunity to present their cases for asylum, migrants are very often returned to dangerous communities and countries. Biden has kept Title 42 in place, even though it was the brainchild of notoriously anti-immigration Trump adviser Stephen Miller. Centers for Disease Control and Prevention officials have questioned its efficacy as a COVID-19 mitigation measure from the very beginning.
CBP expelled over 1 million people under Title 42 in 2021, with over 7,000 migrants getting kidnapped and attacked by cartels and Mexican authorities post-expulsion since Inauguration Day. The Biden administration has also used Title 42 to deport thousands of Haitians to Haiti, even though many of the deportees hadn’t lived in Haiti for years and were actually coming from South America. Some Biden appointees have suggested that the president’s continuation of Title 42 “is largely based on optics—that it’s staying in place because of concerns that ending it will fuel perceptions of a chaotic border.”
But Biden’s critics falsely claim that the Southern border is open. It’s true that CBP reported a 21-year high of 1.66 million migrant encounters at the border in fiscal year 2021. The majority—61 percent—of those apprehensions resulted in Title 42 expulsions, and the figure fails to account for repeat crossings. “Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings,” writes The Washington Post’s Catherine Rampell. Over one-quarter of encountered individuals were apprehended multiple times by CBP, Rampell notes—”nearly quadruple the share in 2019.”
All the while, inefficiency has plagued day-to-day aspects of the U.S. immigration system. Two years into the pandemic, 60 percent of U.S. embassies and consulates are still partially or completely closed for visa processing. Nearly 440,000 immigrant visa applicants whose cases are “documentarily complete” are still waiting for visa appointments (the State Department scheduled just 26,605 appointments for this month). The nation’s refugee intake hit a record low in fiscal year 2021 and our numbers aren’t on pace to be any better in 2022. Legal immigration collapsed under Trump; it hasn’t rebounded under Biden.
All that said, it would be unfair to say that Biden’s immigration policy has been a complete failure. The administration evacuated a staggering number of Afghans after their country fell to the Taliban in August. Visa processing has been imperfect and many vulnerable people are still trapped in Afghanistan, but the Biden administration smartly introduced a private refugee sponsorship program that allows U.S. citizens to help support and resettle evacuated Afghans. Biden has rescinded some Trump-era rules that needlessly slowed down visa and work permit processing, and recently added 20,000 visas to this fiscal year’s cap for the nonimmigrant nonagricultural worker H-2B visa. The administration restarted the Central American Minors program, which allows at-risk children from El Salvador, Guatemala, and Honduras to come to the U.S. as refugees.”
“The FBI has arrested more than 700 Donald Trump supporters who unlawfully entered the Capitol grounds or the Capitol itself that day, many of whom incriminated themselves by recording and/or livestreaming their activities. On the anniversary of the riot, The New York Times reported that “a little over 300” had been charged with petty crimes such as trespassing and disorderly conduct, while “more than 225 people” were “accused of attacking or interfering with the police” and “about 275” were charged with obstructing the congressional certification of President Joe Biden’s election.
Against this backdrop, last week’s indictment of 11 Oath Keepers stands out. It was the first time that any of the rioters had been charged with sedition—specifically, using force to “prevent, hinder, or delay the execution of any law of the United States.” The conspiracy described in the indictment is notably different from the spontaneous, heat-of-the-moment crimes committed by most of the people who stormed the Capitol. Unlike the riot as a whole, which looked more like a temper tantrum than an incipient coup, the “operation” mounted by the Oath Keepers was planned well in advance. Although it is the closest thing we have seen so far to an “insurrection” (the label that Democrats routinely apply to the riot), it was still half-baked and pitifully ineffectual.”
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” The preparations for January 6 allegedly included gathering Oath Keepers from around the country; paramilitary training; “reconnaissance” of the Capitol area; multiple purchases of guns, ammunition, and firearm accessories; a stash of weapons at a hotel in Arlington; and a “quick reaction force” (QRF) that waited at the hotel, ready to act “if SHTF.” The indictment says “the QRF teams were prepared to rapidly transport firearms and other weapons into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power.””
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“The Oath Keepers who went to the Capitol on January 6 evidently did not bring any firearms, although they did have “hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick,” and a German Shepherd named Warrior.”
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“According to the indictment, however, Rhodes and other Oath Keepers celebrated the riot and talked about following it up with further acts of resistance. “Thousands of ticked off patriots spontaneously marched on the Capitol,” Rhodes said that night in a Signal group chat. “You ain’t seen nothing yet.” Between January 10 and January 14, the indictment says, Rhodes spent about $18,000 on firearm parts, accessories, and ammunition. But apparently nothing came of whatever Rhodes might have been planning. He was not arrested until.. a year after the spending spree described in the indictment.”
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“On Election Day, Rhodes publicly advised Oath Keepers to “stock up on ammo” and prepare for a “full-on war in the streets” if Biden were declared the winner. A week later, Rhodes posted a “call to action” under the headline “WHAT WE THE PEOPLE MUST DO.” It described elements of the revolt against Milosevic, which included not only “peaceful protests” and “complete civil disobedience” but also “swarm[ing] the streets,” “confronting the opponents,” “storm[ing] the Parliament,” and “burn[ing] down fake state Television.”
In a December 23, 2020, message on the Oath Keepers website, Rhodes said “tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington D.C., and many of us will have our mission-critical gear stowed nearby just outside D.C.” He warned that he and likeminded patriots might have to “take to arms in defense of our God given liberty.”
So much for staying below the radar. Rhodes’ lack of discretion was not his only problem. It remains unclear exactly how he hoped to keep Trump in power.”
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“The plan, evidently, was to “scare the shit” out of Congress with a show of force that would persuade legislators to reject electoral votes for Biden. But in the end, the Oath Keepers merely joined a riot that was already in progress, and the riot itself accomplished nothing but an interruption that delayed ratification of Biden’s victory until that night.”
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“The sedition charges do not require that the defendants had any realistic hope of success. Assuming the allegations are true, Rhodes et al. did indeed conspire to use force to “prevent, hinder, or delay” the execution of Congress’ constitutional and statutory obligations to certify the election results. And in addition to the sedition counts, which are punishable by up to 20 years in prison, the defendants face various other charges, including conspiracy to obstruct an official proceeding, assault, destruction of government property, interference with law enforcement, and tampering with evidence (mainly by erasing incriminating data on their cellphones).
The Justice Department estimates that as many as 2,500 people may ultimately face charges in connection with the Capitol riot. Most of them will be more like Gonzalez, the “Capitol Doobie Smoker,” than Rhodes and his followers, who had ambitious but inept plans that ultimately amounted to little more than a sideshow in a much broader spasm of vandalism and violence that was itself utterly futile.”
“what about the onslaught of frivolous suits that would come down against the police? That also misses the mark, particularly when considering that it is not possible to simply enter a federal courthouse and file a lawsuit because you’re mad at the cops. Before suing a government actor, a plaintiff must satisfy two conditions: that the public servant affirmatively violated someone’s constitutional rights, and that the violation of the rights is clearly established in prior case law. Without qualified immunity, a would-be litigant would still need to prove to a federal judge that his constitutional rights were infringed on. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.
It’s for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. An example: “The City Officers ought to have recognized that the alleged theft was morally wrong,” but the police “did not have clear notice that it violated the Fourth Amendment.” This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. I’d posit that most of the public has more faith in police to do their jobs with integrity. I certainly do.”