“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (U.S. Constitution, Article III Section 2).

President Trump and the Constitution

With a bill standing to be passed by the House and Senate that provides some relief to the humanitarian and security crisis at the Southern border, the United States is facing a dilemma as President Trump states that he will declare a national emergency to find the remaining monies to build the wall. Democrat leaders from both houses of the Congress condemn the potential action of the President of the United States as a “gross abuse of power,” seemingly forgetting the precedent that former President Obama set when he bypassed congress with his phone and his pen. Pundits have already sentenced the actions of the president to the court of public opinion, all the while democrats scurry in the shadows to prepare a case in the 9th Circuit Court (the most overturned court in the land) to get an emergency injunction. While the matter of emergency power is most definitely something that should be reviewed (by congress and not the courts), there is the question of whether the 9th Circuit even has jurisdiction in this matter.

Congress has been lax in the maintaining of its power, the concept of ‘equal balance of power’ created by weak congresspeople and poor civics teachers should be challenged by the reality that the Supreme Court is the lowest branch of the United States Government. The highest branch being, of course, the congress of the United States. With the massive usurpation of power in the case of Marbury v. Madison and continued failure of congress to exercise a check on the abuses of power by activist courts, we are now in a situation where a judge, likely in Hawaii or California, will make a ruling that could effect the safety of 300,000,000+ Americans and tens of thousands of refugees at our southern border. It is time to challenge the legal end run that has been used by democrats and activist judges for years, using third party agencies as ‘plaintiffs’ so that they can avoid the jurisdiction of the Supreme Court.

Under Article III, Section 2, the Supreme Court has jurisdiction in any case where a state is a party to the case.  In this event, the respondent in the case will likely be the United States (as the president is acting within Congressionally granted authority in declaring an international emergency) or the President of the United States in the lawful execution of his duties. Regardless of how it is worded, the president is acting within the framework of powers granted by the congress in the National Emergency Act of 1976. This means that not only is one state being brought to task by whatever third party end around the Democrat party uses to file the suit, but all states are being brought to task.

These United States

Let us not forget that the term ‘the United States’ is a colloquialism that we have used since the Civil War to present a unified front to the world, the proper terminology is ‘these United States.’ Even though we have ceded power to central government of the United States through massive mistakes like the Federal Reserve Act of 1913, the 17th Amendment creating the direct election of senators, and even Marbury v. Madison giving the Supreme Court the eventual ‘power’ to create the incorporation doctrine, the proper Constitutional phrasing of ‘these United States’ means that when the United States is sued, all states are sued.

So the question becomes ‘Why does this matter?’ This matters because activist judges in California and Hawaii do not have the authority to hear this case as a case of original jurisdiction. Since a state, and all the states, are going to be party to this case regardless of whatever legal gymnastics the democrats use to justify their attempted injunction, the case should be heard in Washington D.C. in the highest court of the land. Further, the President should insist that the decades old rule of no television cameras in the Supreme Court chamber be superseded by the American people’s right to hear the case from the mouth of the President’s attorneys. The also have the right to see that Associate Justice Ruth Bader Ginsberg is still capable of handling her duties as a justice to the United States Supreme Court (we do wish her well). It is time that these United States quit allowing the lesser courts to usurp the power of the High Court in original jurisdiction. In cases where the Constitution is clear, case law means nothing. In this case it is clear that the United States is made up of the several states, thus the court has not only the option but a duty to hear the case. As generations of Americans learned in Civics class while it was still taught properly, the Constitution is the supreme law of the land- now is the time that our elected and appointed civil servants need to show us that they still believe in the Constitution and are not so enamored with their offices in Washington that they think themselves the supreme law.

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Christopher W Smithmyer

Dr. Christopher Smithmyer is a writer for NRN, the Vice President of International Affairs at Brav Online Conflict Management, and an Adjunct Professor of MBA Business at Doane University. He is also part of the founding team at BlackWalletLTD, one of the leaders in stable coin 2.0 ecosystem maintenance. Dr. Smithmyer’s focus is international business and finance, along with reviews of board games, weapons platforms, and survival items.

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