Judicial Tyranny

This terrific overreach by the federal judiciary is becoming most concerning. Donald Trump, like the first 44 incumbents, is President of the United States, whether you (or the federal judges) like it or not. He has all the rights, obligations, and duties of his predecessors. Like most of us, I worried about Obama’s overreach into prerogative rule with his pen and his phone. But we’ve seen none of that with Trump, his every action has been well within the Constitution. Mark Pulliam has some thoughts.

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.

(…) In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

via Judicial Tyranny’s Final Frontier – Online Library of Law & Liberty

That’s all true and very troubling, but what can we do about it? These are all Article III judges appointed during good behavior (which is not defined)m in other words, essentially for life, although they can be impeached, it is a very rare occurrence. It is also just possible that they could be removed by a writ of scire facias, a form of Chancery order which dates back to Edward I. The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Other than that, there is little legally to be done. I seem to remember that while the Supreme Court is constitutionally mandated, all the rest are the creation of the Congress, and could simply be disestablished, and new ones established, although at best, that would have the effect of retiring the judges, not firing them, and would certainly be messy for all concerned.

But perhaps there is a less, shall we say, formal method. Paul Mirengoff at Powerline writes this:

President Trump admires Andrew Jackson. He sees himself as Jacksonian.

Accordingly, it might instructive to recall how President Jackson is said to have responded when the Supreme Court ruled, in Worcester v. Georgia, that Georgia laws calling for the seizure of Cherokee lands violated federal treaties. Here is the statement Jackson may have made:

John Marshall has made his decision, now let him enforce it.

Jackson may never have uttered these words. However, both Georgia and Jackson ignored the Supreme Court’s decision. Chief Justice Marshall’s decision was never enforced.

At the rate liberal judges are going, we might see similar defiance of the judiciary by President Trump. I don’t expect Trump to respond that way if the ruling that he cannot temporarily ban immigration from six countries fails to survive judicial review. That ruling doesn’t seem important enough to defy the judiciary over.

I don’t either, but I can foresee occasions where it might be necessary. The founders considered the judiciary the weakest branch, and so there are fewer safeguards here, than anywhere else. That started changing with John Marshall and Marbury v. Madison, and that unchecked power has metatized rather badly in the last fifty years. I don’t know what the answer is, but a solution is needed.

No Particular Place to Go

I’d guess that most of you heard the news yesterday, Chuch Berry died, at 90. Well there’s not really too much to say about the ‘Father of Rock and Roll’, is there? Like almost everybody my age, I loved his music, there’s a youthful, happy quality about it, and something of that American ‘Here, hold my beer’ exuberance, as well. I suspect it says something about the man that he still lived in St. Louis, rather than California. But in any case, like with any great performer, the music is the thing. Here’s some of it.

 

And this, of course. You didn’t think I’d leave that one out, did you?

What else can you say when a legend leaves? I loved his pure Rock and Roll, and how easy he always seemed with himself. He was a major influence on all those great rock bands we all knew, but in many ways, the original is still the best.

Rest in Peace.

Middlebury, Groupthink, and Riots

Thomas Sowell had a few things to say the other day about the fracas at Middlebury College. As always, it is very worth listening to.

Where have all these shocked people been all these years? What happened at Middlebury College has been happening for decades, all across the country, from Berkeley to Harvard. Moreover, even critics of the Middlebury College rioters betray some of the same irresponsible mindset as that of the young rioters.

The moral dry rot in academia — and beyond — goes far deeper than student storm troopers at one college.

Frank Bruni of the New York Times, for example, while criticizing the rioters, lent credence to the claim that Charles Murray was “a white nationalist.” Similar — and worse — things have been said, in supposedly reputable publications, by people who could not cite one statement from any of Dr. Murray’s books that bears any resemblance to their smears.

It seems to me increasingly that book reviews have become a political litmus test, where one writes what one believes about the author, whether or not (usually not) one has read the book in question. Not all, of course, there are plenty of good, useful reviews out there, but far too often.

The professors don’t usually riot against people whose ideas they disagree with, because they can just dismiss those ideas, with some characterization that there is no one on hand to challenge.

Professor William Julius Wilson of Harvard, for example, said of Justice Clarence Thomas, “He’ll say he pulled himself up by his own bootstraps. I say I was in the right place at the right time.”

Just where did Justice Thomas say that he pulled himself up by his own bootstraps? The central theme of his autobiography, titled “My Grandfather’s Son,” credits the wisdom of the grandfather who raised him as what saved him.

Nuns who taught him in school were brought to Washington, at his expense, to be present to see him sworn in as a Justice of the Supreme Court, to see that their dedicated efforts on his behalf had not been in vain.

But has anyone ever asked Professor Wilson on just what he based his claim about Justice Thomas? The central tragedy of academia today is that you don’t have to have anything on which to base dismissals of people and ideas you disagree with.

Of course not, He’s a Harvard professor, which in much of our society, is akin to a demigod. Well, I’d ask, because I learned long ago that Harvard professors believe many things that are just not so.

Why should we expect students to welcome debate about differences of opinion, when so many of their professors seem to think cheap shot dismissals are all you need? Lacking their professors’ verbal dexterity or aura of authority, students use cruder methods of dismissing things they disagree with.

So long as academia talks demographic “diversity” and practices groupthink when it comes to ideas, we have little reason to expect better of student mobs that riot with impunity.

via The Real Lessons of Middlebury College by Dr. Thomas Sowell | Creators Syndicate

And so we get riots, while fools look on from their ivory towers.

Budget Day

Yesterday, OMB Director Mulvaney had a press conference on the new budget. Pretty good one in my view. $0 for NPR, PBS, and NEA, 50% reduction for the UN, down 30% + for EPA, a lot for State as well, more for the Pentagon which needs it (it also needs much better and leaner management). Nothing about entitlements in this one, that comes later.

Here’s Mulvaney, he a joy to listen to, a man who knows his subject thoroughly, stays calm and answers the question. And the budget is a good start.

What is a Good Judge?

Poise the cause in justice’s equal scales,
Whose beam stands sure, whose rightful cause prevails.
William Shakespeare

The other day, the AP wrote this:

Many conservation groups say U.S. Supreme Court nominee Neil Gorsuch is too conservative and too much like the man he would replace, the late Justice Antonin Scalia, to be considered a friend of the environment.

But when it comes to Gorsuch’s judicial record on issues like pollution and environmental regulation, he can’t be painted as someone who always finds in favor of businesses, according to an Associated Press review of his rulings.

Funny thing, maybe the AP doesn’t understand is that judges represent neither the environment, business, employees, the people, or even the government. Their mission is to represent the law, and justice, and to ensure its fair and equitable dispensation upon all parties, notwithstanding any other factors.

As a judge for the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch has ruled both for and against causes that environmentalists hold dear.

He voted in 2015 to uphold a Colorado law that requires 20 percent of electricity sold to consumers in the state come from renewable sources.
***
But Gorsuch has also ruled against the EPA, as in a 2010 case in which the court found that the agency was wrong to classify land in New Mexico as Indian country when a company sought to obtain a mining permit.

I like the way John Hinderaker puts it here…

There is no “but” about it. A competent judge will rule for or against a party based on the law and the facts, not the identity of the parties. Only a corrupt judge–we have several such liberals on the current Supreme Court–will ascertain a political narrative and vote to advance it.

Indeed we do!

Then the AP offers very high praise to Judge Gorsuch, although I doubt that they understand that they do.

“He follows the law,” said Merrill Davidoff, the landowners’ attorney. “And in this case the law favored the plaintiffs — the landowners — not the government or the government contractors.”

If only all our judges did!

And that brings us to something that John and I have both written much about: administrative law. John says this

There is one major contemporary issue on which judicial philosophy bears strongly. That is the legitimacy of the administrative state. As I have said repeatedly, the government we live under does not resemble the one that is described in the Constitution. Today, we are governed mostly by a fourth branch, nowhere mentioned in the Constitution, the permanent federal bureaucracy. These office-holders persist from one administration to another, and in many cases resist any effort to bring them into line with a new administration’s policies. They are unelected, unaccountable, frequently incompetent, and almost always Democrats.

If I were president, the only question I would ask a prospective Supreme Court nominee is whether he or she will be willing to take a hard look at whether the administrative state comports with the Constitution. The AP eventually gets to this central issue:

A ruling that most worries some environmental groups came in a case that had nothing to do with the environment. In a much-noted immigration case, Gorsuch was critical of the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes. Conservationists say that could be trouble for agencies like the EPA, which have the task of interpreting and implementing rules.

“If you look back at the Supreme Court’s rulings involving Chevron, most of those are environmental cases,” said Billy Corriher, deputy director of legal progress at The Center for American Progress, a nonprofit liberal advocacy group. “And I think that’s because the EPA really enforces a lot of statutes that are pretty broad, it gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous. Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts.”

That’s about as twisted as a corkscrew. The problem with administrative law (and Chevron gives overmuch weight to the agencies) is that legislation is not to be made by the agencies, they are there to execute the law the Congress has passed. That the Congress has abrogated their responsibilities under the law is no excuse. As John says.

The Constitution is not about rule by experts (even real ones, as opposed to bureaucrats) but rule by the sovereign people. Hopefully, Judge Gorsuch understands that.

via A Pro-Environment Judge Is a Bad Judge | Power Line

Neptunus Lex

Blogging is a very personal effort. NEO is not the same as any other blog, even though I may draw on many of them for inspiration, or even long quotes. It has been so as long as I’ve been around. One of the blogs I read, even before I started was Neptunus Lex, the blog of Carrol Le Fon, a naval aviator. He made me laugh, he made me cry and he made me think, what more can a man do for another. Lex died on 6  March 2012 doing what he loved best: making naval aviators even better. That’s a legacy that any man can aspire to.

Our blogs overlapped, but I don’t think I ever referred to him. I was amazed, reading the Victory Girls last night, that he still appeared on their blogroll. On a nostalgic whim, I followed the link. As I thought, the site disappeared shortly after his death, but what I didn’t know is that it was preserved. YAY!!! It is here, mostly. It’s not the same as having Lex amongst us, but I think it will serve. A sample of why so many of us loved him, and still do.

Well, and I very much appreciate all those who offered their thoughts. They pushed and pulled in many different directions, and apart from those who counselled immediate retirement – sorry, that’s not me – I have shared in all of them, all in a moment. Funny how things can swirl so quickly through your mind, between the moment when you hear unlooked for news, and the moment after, when you are asked what you think of it.

Is there a moment of wounded pride, wherein you ask: What? How can I be offered up? How can I be spared? As busy as I am, and as much as I contribute?

There is. But we are none of us irreplaceable, the wheel continues to turn. And it does not surprise me that I am offered up: I made a decision some time ago that this would be my last tour, which obviated the need for self-promotion. I do my work quietly, accept no thanks, offer it instead to others. It’s really quite astonishing what you can do, when you don’t care who gets the credit.

Is there a moment when the old joy of battle sings again in your heart? When you think of joining the fray rather than reading about it? When you think of qualifiying in weapons whose range is measured in meters rather than in miles? Of strapping on and suiting up once more? Of hurling yourself into the fight?

There is such a moment. A moment only. And then you reflect that no one places super-annuated FA-18 pilots on the deck in order to carry the fight to the foe. You reflect that of all the things you might learn in Sojer School, the most valuable would be to count your rounds as they went down range, in order to save the last one for the end. Because just like in the days when I strapped an airplane on to go to war, if it comes at last to a pilot with a pistol in his hand and dust on his boots, something has already gone horribly wrong, and the odds of it getting any better are vanishingly small.

From Now is the autumn of our discontent Who amongst us older people can’t relate to that? It’s happened to me and I’ll bet it’s happened to you as well. All we can do is try to pass on all those lessons we’ve learned, often to youngsters who think they know it all, but it’s our duty.

I note that Lex died a few days before the USS Enterprise set out on its last tour. Is it connected? I don’t know, but I wouldn’t be surprised, legends are like that.

%d bloggers like this: