What is the judicial branch of the U.S. Government?
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.
—Bouarfa v. Mayorkas, 2024 604 U.S. 6
There is only one court defined in the Constitution, all the others are created by Congress and are inferior to the Supreme Court.
The Congress can establish courts, which implies that they can delete courts. This has happened in the past, I believe. We have been looking to split the Ninth Circuit into multiple circuits for several years now.
Neither the Congress nor the President can reduce the salary for Judges. They can only increase their salaries.
There are two ways to remove a federal judge from inferior court: 1) Impeach them, 2) Find that they are not exhibiting “good behaviour”.
While the Constitution established the Supreme Court and authorized inferior courts, it doesn’t, explicitly, say what authority over the other two branches it has.
The President has the power of the veto. He has command of the military and the tools required to fulfill his responsibilities as the head of the executive branch.
The Congress has the power of the purse and the ability to create laws. They can override a presidential veto.
Our government was set up to be at odds with itself. To be inefficient in creating laws. No man’s home or wallet is safe when Congress is in session.
The power of the Court came when they took it in Marbury. They didn’t justify that power grab under the Constitution. They simply declared that it is the job of the courts to say what the law is.
As part of that task, they are now empowered (authorized) to judge the Constitutionality of any law.
The Supreme Court has put guard rails on that power. While we heard it in Bruen and in Heller, it is a consistent message, first look at the plain text of the Constitution. If the proposed conduct implicates the plain text of the Constitution, then the burden shifts to the Government to show this Nation’s historical tradition of equivalent regulation.
Yes, that sort of language is in many Supreme Court opinions, not just Second Amendment Opinions. Which is part of the reason the legal people of the Second Amendment Community get upset with rogue inferior courts.
The Trump Administration’s Attack on Judges
Maybe we should say, “rogue, inferior court, judges.” These are judges, sometimes making up an entire court, that seem to feel that they have the power to overturn presidential orders.
Unfortunately, these judges step outside the guard rails constantly.
Consider just one question, “Does the President have the Constitutional authority to hire and fire personal within the executive branch?”
When we look at the plain text of the Constitution, we find that he does have the authority to hire. Sometimes that requires the Advice and Consent of the Senate
. Other times it does not.
With the authority to hire comes the ancillary authority to fire. This is the same as the First Amendment’s “freedom of the press” including the right of the press to purchase ink and to be free of targeted taxation.
Trump 2.0 came into office knowing that he would be subject to lawfare. The left has already played that hand.
When I read the filings of the state (good guys), it is obvious that they were prepared for these court cases. They have been extraordinarily careful to make sure they follow the court’s orders without letting the court win.
Battle Is Waged
There seems to be credible evidence that there are people in congress that are looking to start impeachment proceedings against those judges that they feel are going rogue. Chief Justice Roberts issued a statement that impeachment wasn’t the correct path to follow when a court’s ruling goes against you. Still, the undertones suggest that impeachments are coming.
Some lawyers are suggesting going after the good behavior
aspect. If the judge is not staying within the guard rails created by the Supreme Court, they are not exhibiting good behavior. This means they can be removed. Is there good case law for this? I do not know. I suspect there is not.
You are welcome to read this article from the University of Notre Dame.
Regardless, there are judges out there that are seeing that they are getting into the “FO” stage of the equation.
Enter Judge Jesse M. Furman
Judge Furman is a member of the Southern District of New York District Court. When Khalil was detained, then transported before being deported, he was the lucky judge to get the case.
The case is a writ of habeas corpus.
A writ of habeas corpus orders the custodian of an individual in custody to produce the individual before the court to make an inquiry concerning his or her detention, to appear for prosecution (ad prosequendum) or to appear to testify (ad testificandum). State courts may issue such writs to prisoner custodians to produce federal prisoners.
— U.S. Marshals Service
The gist, in this case, is that the lawyers for Khalil want him in S.D.N.Y, and they want the court to have power over him. Currently, the federal government has power over him.
Unfortunately for Khalil, the state hit hard and fast. They detained Khalil, took him to the ICE Field Office in Manhattan for processing. The ICE Field Office does not have facilities for holding prisoners for more than 12 hours. Since he couldn’t hold him there, so they transferred him.
He was transferred to the Elizabeth Detention Facility in Newark, New Jersey. Normally, this is where he would have been held until deported or released.
But, the Elizabeth Detention Facility was experiencing and continues to experience a bedbug issue that prevented [them] from accepting detainees as full transfers.
In short, he couldn’t stay there.
This was known before Khalil was detained. They had transport ready and Khalil was on his way to the Louisiana Detention Facility in Jena, Louisiana shortly after he arrived in New Jersey.
This was happening so rapidly that the Judge is talking about where Khalil was at any particular minute. In some cases, he was removed from jurisdictions only a few minutes before court orders would have stopped the transfer.
Now Khalil is in Louisiana. The S.D.N.Y. did not have jurisdiction when the case was opened. That would have been in the District of New Jersey. By the time everything was sorted out, he was in the Western District of Louisiana.
This judge could claim he had jurisdiction and demand the return of Khalil. This would be fought, and is being fought. He is unlikely to win on the merits. It could be years before the Supreme Court makes a final decision. During that time, Khalil would be behind bars.
If the judge dismissed the case, his earlier TRO would be vacated and Khalil would be deported.
If the judge transferred the case to the W.D. of Louisiana, it is likely that the courts in that jurisdiction would not be issuing orders overriding the President.
Here is the thing. The Trump admin is going to put the same motions for dismissal or transfer in front of the judge in New Jersey.
How does a judge in New York decide that they don’t have jurisdiction because the person wasn’t in the district when the case was filed, believe that the case belongs in a jurisdiction where the complaint was never filed and where the person is currently being detained?
Bluntly, I think the judge in New York took a look at what was happening and decided, “I don’t want any part of this mess.” Then punted.