Like 800,000 other federal employees, federal
judges are not being paid—though every one of them is working. But the
administrative office for federal courts reports today that courts will run out
of money on January 25th. This will affect 94 district courts, 13
appellate courts—and 282,936 civil cases (e.g., lawsuits for civil rights
violations, or pay claims, or discrimination), as well as 773,375 bankruptcy
filings.
That last figure should give pause because if
bankruptcy petitions are slowed or halted, it’ll have a major effect on banks
and real estate companies.
But what about federal judges—can they sue for
back pay?
Here is my point: In the Constitution, these
judges were protected against the whims and caprice that English judges faced
from time to time from a hostile Parliament or monarch. So, this language is in
Article III, Section 1:
Article
III (Article 3 - Judicial)
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 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.
The Trump administration can spin this however
they please, but not paying federal judges on time would be a first-time event—and
it would be a diminution in pay.
Furthermore, President Trump has, on numerous
occasions, lambasted federal judges as being biased, or “Obama judges,” or of “Mexican heritage.”
In other words, he has acted much like the type of
tyrannical king that the framers had in mind for this provision of the
Constitution.
The constitutional intrigue goes deeper. The
most sympathetic federal judges to President Trump are originalists. There is
no way to mince words here: the clear and specific intent of the Framers of the
Constitution was to expressly prevent any reduction in pay for federal judges.
Will a federal judge sue to enforce the
Constitution? Who would hear the case? Don’t care? A nation without a neutral
judiciary cannot function as a democracy.
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