So, no. President Trump cannot wave his pen and break up a federal court like he suggested he wants to do. But there are ways he can work with Congress to split up a federal court — doing it just might be more trouble than it’s worth.
“Absolutely, I have,” Trump told the Washington Examiner in a recent interview about whether he’s considering breaking up the U.S. Court of Appeals for the 9th Circuit, which twice has halted two of his immigration executive orders. “There are many people that want to break up the 9th Circuit. It’s outrageous.”
The president doesn’t have the unilateral power to change federal courts, but Congress can mix the courts up however it wants to. “The Constitution only requires there be a Supreme Court,” said Cornell law professor Josh Chafetz, my go-to source for understanding the Constitution in plain language. “It doesn’t say anything about how the lower courts have to be organized.”
Lawmakers in Washington could theoretically decide the 9th Circuit, which is headquartered in San Francisco and accepts cases from lower courts in nine states stretching from Nevada to Alaska and to the territory of Guam, should be split up. Maybe they create a new circuit court in Reno, Nev., or Fairbanks, Alaska. A member of Congress can write a bill doing just that, and if it passes through Congress, Trump can sign it, and, presto, now there are two courts where there was one.
A federal judge halted President Trump’s executive order that would withhold federal funds from jurisdictions that don’t cooperate with immigration authorities, on April 25. He called the administration’s position on the order “schizophrenic.” (Jenny Starrs/The Washington Post)
This has happened before. In 1980, President Jimmy Carter signed a bill splitting up the heavily trafficked U.S. Court of Appeals for the 5th Circuit in the South. Now the western half is under the 5th Circuit and the eastern half is under the 11th Circuit. There have been a couple bills introduced in Congress over the years to do this to the 9th Circuit.
But but but. Chafetz has a hard time seeing Congress wanting to break up the court. Reorganizing a court is a dangerous undertaking for…