Although concern about judicial activism is widespread, there is, as of yet, little consensus among political conservatives as to how to remedy the problem. Some political leaders believe that the solution lies exclusively in appointing strict originalist judges to the bench whenever vacancies occur. Others opine that the problem can be remedied by restricting the jurisdictions of federal courts. Still others suggest that activist judges should be impeached. Although all of the above approaches may have merit, there is one solution that appears to have received very little attention from commentators: the possibility of enacting laws that restrict the authority of federal courts to issue writs.

Do federal courts have constitutional authority to issue writs?:

Article III of the Constitution, which pertains to the judicial branch of government, contains no mention of the authority of federal courts to issue writs (a class of documents which includes court orders and injunctions). The framers of the Constitution could very easily have included a provision for courts to issue writs by inserting a clause such as: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." There is, however, no such language included in the text of the Constitution.

Some may ask whether this may simply have been an oversight by the framers of the Constitution; after all what would be the purpose of having courts of law unless they were capable of issuing writs to enforce their rulings?

Alexander Hamilton, who himself was a delegate to the convention that framed the Constitution, in his Federalist 78 provides comments that indicate that it was not an oversight of the framing convention, and that the omission of any provision in the Constitution to issue writs was deliberate:

"The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements." Presumably, the majority of framers wanted it this way. After all, it would enable Congress to regulate the court's powers pertaining to the issuance of writs by enacting statutes rather than by amending the Constitution.

At the time that Federalist 78 was written on or a little before May 28, 1788, the Constitution had not yet been ratified by all of the then extant states, and it may have been quite uncertain as to how court rulings were to be enforced under the new federal judiciary. Hamilton's statement above suggests the possibility that some system other than the issuance of writs directly by courts may have been under consideration.

In any case, since the Constitution was mute on the topic of writs, any type of authority vested in courts to make their rulings legally binding was up to the discretion of Congress pursuant to power under Article 1, Section 8, Clause 18 which reads: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Congress exercised their authority under Clause 18 with respect to courts on September 25, 1789 when the "Judiciary Act of 1789" was enacted. Although, the Constitution was mute on the subject of writs, the Judiciary Act of 1789 contains references to numerous different types of writs that the judiciary would have authority to issue, including: writs of error, writs of habeas corpus, writs of mandamus, writs of scire facias, writs of venire facias, and "all other writs not specially provided for by statute."

John Marshall, Chief Justice of the United States for many years during the first part of the 19th century, candidly admitted that the authority of federal courts to issue writs came from Congress. The following is quoted from his Marbury V. Madison decision dated 1803:

"This, then, is a plain case of mandamas . . . and it only remains to be inquired, Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under authority of the United States.' The secretary of state being a person, holding an office under the authority of the United States, is precisely within the letter of that description."

Since federal courts issue writs pursuant to statutory authority vested by Congress, it should be possible for Congress to tighten regulations pertaining to the use of writs by federal courts.

Proposed Solution for Writs Reform:

Congress could simply abolish the system of writs currently used by federal courts and replace it with a "warrant application" system.

Under such a system of "warrant applications," judges would still have authority to issue writs for purposes such as:

1) compelling the attendance at trial of subpoenaed witnesses, appointed attorneys, and impaneled jurors,

2) maintaining order in the court, and

3) taking such other measures as is necessary to protect the integrity of the trial and the discovery processes.

Judges would not, however, be able to issue writs directly for other purposes; instead of issuing writs directly, the judges would have to apply for writs to be issued on behalf of the court. They would do this by submitting a warrant application to an oversight agency established by Congress to evaluate the documentation pertaining to each case to determine whether or not the presiding judge(s) functioned within the boundaries established by current judiciary laws. For example:

1) Did the court have appropriate jurisdiction to hear and make a ruling on the case?

2) Can the writs the judge wishes to have issued be legally used for the purpose he desires to use them for?

If the judge functioned in a manner that was in compliance with current judiciary laws, the oversight agency would prepare the appropriate writs, notarize them, and return them to the judge who had submitted the warrant application. If the court lacked jurisdiction or if the judge wished to issue writs in a manner that wasn't in compliance with current judiciary laws, the warrant application would be rejected and the judge accordingly notified.

Copyright by Andrew W. Pollock III

Email Comments