A recent political debate has emerged about whether President Trump’s use of the slow court system to challenge subpoenas reasonably constituted “obstruction of congress” . This debate, along with complaints about the glacial pace of court cases concerning DACA  and the legality of a national emergency declared to divert Defense Department funds toward border wall construction , have laid bare a fundamental structural problem within the American judicial system. While the slow, multi-tiered court system, with its numerous opportunities for appeal, is ideal for criminal cases where it mitigates the chance that the innocent will remain permanently convicted on false charges, it is disastrous for mediating political and constitutional conflicts.
The U.S. Constitution calls for regular, fixed election cycles for federal elected officials . Thus, congressmen, particularly members of the House of Representatives and the President, rely on the rapid implementation of their policy preferences after passage into law so that voters can evaluate whether these policies are beneficial. This, in turn, allows voters to properly hold their elected officials accountable. When the court system intervenes by mandating a national injunction, temporarily blocking the implementation of this legislation, legislators run the risk of unfairly being branded as “do nothing politicians” and getting ejected from office through no fault of their own. Additionally, successors in office when the injunction on constitutional legislation is finally lifted may falsely receive credit or blame for the actions of their predecessors.
Congressional committees wishing to conduct oversight over the executive branch face a similar dilemma. National scandals only captivate the eye of the public for a very brief period. If the executive branch can successfully stall the resolution of the subpoena accommodation process, it can effectively hide its wrong doings from the public. Presidents from both political parties have been notorious for subpoena stalling. For example, President Obama’s administration was able to block the production of documents and sworn testimony from Attorney General Eric Holder over the “Fast and Furious” scandal until well into Trump’s presidency. President Trump has similarly delayed the testimony of his former attorney Don McGahn about Trump’s conduct during the Mueller investigation . While congressional subpoenas are not automatically completely legitimate (it is clear that some legitimate, justiciable executive privilege claims exist in both cases), a snail’s pace court system renders subpoenas effectively obsolete.
What, then, can be done to speed up the resolution of constitutional and interbranch conflict cases without jeopardizing the due process rights of ordinary civil and criminal case defendants? It is important that truly unconstitutional laws be struck down, but that garden variety laws be quickly implemented.
Perhaps we should prohibit judges at the district court level from ruling on constitutional questions or issuing nationwide or statewide injunctions on the federal or a state government . District court judges are subject to minimal scrutiny in the judicial selection process. They are typically approved en masse by both the President and the Senate . In recent years, they have also become increasingly hyperpartisan, enabling special interest groups to “jurisdiction shop” for the circuit with the greatest proportion of activist district court judges sympathetic to their cause .
Furthermore, it is dangerous to bestow nationwide injunction power on a single district court judge. It is even more egregious when a magistrate judge (an assistant to the district court judges that is not even appointed by the President or ratified by the Senate) makes a constitutional ruling. For example, regardless of one’s view on the legal propriety of same-sex marriage, it was blatantly anti-democratic when a magistrate judge overturned Idaho’s marriage amendment in its state constitution .
To resolve these issues, a constitutional court equivalent in rank to a circuit court of appeals should be established to resolve all constitutional questions and congressional-executive branch disputes (such as subpoena disputes). This court could have two to three times the number of judges as a typical circuit court in order to ensure expeditious rulings. It would be granted original jurisdiction on all constitutional matters, with five or seven member panels ruling on all cases within four months of initial case filing. District courts and traditional circuit courts would still make judgments on law and facts, but would be banned from issuing injunctions against the government on constitutional grounds or declaring a law null and void. If a party to a traditional case wished to make a constitutional argument, the lawsuit would be “frozen” in the traditional court system until the constitutional question was resolved in the Constitutional Court. The Constitutional Court could also declare a constitutional argument to be redundant if it was recently decided upon and throw a case out immediately.
Decisions made by the Constitutional Court would be appealable to the Supreme Court as circuit court rulings are currently. However, to ensure rapid decision making, the Supreme Court would only be granted two months to decide whether to take up an appeal and an additional six months to make a ruling. In this way, the number of relevant court levels ruling on constitutional matters would be cut to just two, with a maximum litigation period of one year. There will always be a central tension between the need for thorough and thoughtful constitutional rulings and the need for rapid policy implementation to ensure proper political accountability. This proposal would function as a necessary compromise.
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