As you have no doubt heard a dozen times by now, the 9th Circuit Court of Appeals is the most overturned appellate court in the federal system.  It was not surprising that they sustained the lower court in the Trump immigration kerfuffle.  What is surprising is that the Trump administration is now expected (by some quarters) to address the problem of legislation from the bench.  I suspect there is enough on the president's agenda that he need not get involved with this.  He need not get involved because it is an easy fix.  All that is needed is for Congress to exercise its constitutional power.

Article III of the United States Constitution establishes the judicial power of the United States "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  Only the Supreme Court is a created by the Constitution.  The entire federal court system, and by extension the Circuit Courts of Appeal, is created by Congress; therefore, tomorrow, let's say, Congress can abolish the entire federal court system.  By extension, Congress can constitutionally limit the jurisdiction of the federal courts from review of immigration and naturalization matters.  This would certainly put an end to the 9th Circuit Court of Appeals substituting its wisdom for that of the president or Congress.

Will this happen?  Of course not.  The legislature and in many cases the executive have given the judiciary almost plenary power to exercise its authority, and Congress has been loath to rein in the judiciary or pick a constitutional fight.  There are clear-cut exceptions, such as the bar on the lower federal courts from hearing diversity jurisdiction cases (that is, cases where the parties are from different states or are not citizens) that involve less than $75,000.  Historically, immigration and naturalization has been an area where jurisdiction has been curtailed, including the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996.

Every law student gets to study Ex Parte McCardle, 74 U.S. 506 (1869), in which Congress withdrew jurisdiction from a case involving Southern reconstruction that the U.S. Supreme Court was then in the process of adjudicating.  The justices acknowledged the authority of Congress to intervene.  Lord knows there are plenty of lawyers in the halls of Congress.  They know pretty clearly the extent of their power.

Is the 9th Circuit Court of Appeals out of control?  Clearly.  Does the Congress have the power to deal with the 9th Circuit Court of Appeals?  Clearly.  Will Congress deal with the 9th Circuit?  Probably not.  However, an act of terrorism that could have been avoided had it not been for judicial intervention might embolden Congress to act.

Chuck Volz is a community activist, an attorney, and an adjunct professor at University of Sciences in Philadelphia.  He can be reached at volzcf@aol.com.