SAN DIEGO: As President Trump begins his second two years, he also faces key judicial challenges to his authority. Some lawsuits against his Executive Orders have already been pushed back by the Supreme Court. Others are still pending. Perhaps one of the most important to the future of our country is an Executive Order mandating that people who illegally cross our borders instead of entering through a legal point of entry cannot claim asylum.
Activist Judges propelled by politics
Almost as quickly as lightning itself, U.S. District Court Judge Jon S. Tigar set forth a temporary restraining order, blocking any implementation of this new procedure. He later ruled to keep the restraint in place. It is easy for cynics to immediately imagine three reasons for a judge to counter such an Executive Order:
1) It came from President Trump.
2) It made sense.
3) There was nothing truly unconstitutional about it.
All cynicism put aside, this ruling does site our 1965 Immigration and Nationality Act which says anyone in the country can claim asylum “whether or not at a designated port of arrival…”
“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Tigar stated.
However, the very immigration law they are citing also leaves much to the discretion of the president. The 1965 version is an amendment of the 1952 incarnation that did not override all of the previous bill.
Here is a section left intact – Section 212 (f) says:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
In predictable Trump fashion, he pushed back immediately by claiming this decision came from “an Obama judge.”
He also anticipated a similar decision where the case will be heard next, the 9th District Court of Appeals, describing problems with this court as well. Chief Justice Roberts, in an uncommon move for a Supreme Court judge, issued a statement to The Associated Press criticizing Trump’s characterization:
“…the country doesn’t have “Obama judges or Trump judges, Bush judges or Clinton judges.” He later offered more on the subject, saying “independent judiciary is something we should all be thankful for.”
Of course, President Trump wasted no time reacting:
“Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an “independent judiciary,” but if it is why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned.
Please study the numbers, they are shocking. We need protection and security – these rulings are making our country unsafe. Very dangerous and unwise.
You can love Trump or hate him, but in this particular case he is absolutely right!
We should have an independent judiciary, but we do not. That is the cold reality.
At this time in our history, opposing views of our Constitution are being held by those with the power to “interpret it.” Some say the Constitution should be read as it is strictly written and/or according to the framer’s original intent. Others like to call the Constitution a “living, breathing document” which is code for legislating from the bench.
If the judiciary had really been acting objective these many years, enforcing laws, but not making law, why was the confirmation of Judge Kavanaugh such a circus? Why did Democrat senators pledge to vote against Kavanaugh, long before the sexual allegations?
Why are liberals so frightened about the health and the possible retirement of Ruth Bader Ginsburg?
While our Forefathers did leave room for changing times, their plan was a constitution that could be amended, but not judicial tyranny.
SCOTUS to interpret the Constitution without political favor
In point of fact, nowhere in our constitution does it say that the Supreme Court’s job is to “interpret the constitution.” It is meant to be the highest court in the land, defending and enforcing the Constitution. One can argue that judges may examine new laws to see if they measure up to the Constitution, but this an objective process, not left to subjective opinion or a reading between the lines to find hidden “rights.”
The first case in our country’s history of “interpretation” was known as Marbury vs. Madison (1803). It took place during the presidency of Thomas Jefferson. Jefferson had refused to inaugurate several justices put in place by President Adams before he left office.
Ironically, the Supreme Court sided with Jefferson. Nevertheless, Jefferson felt that the court should not have had the power to rule on this at all. Jefferson often expressed concern about “the despotism of an oligarchy.”
And so, while we should have an independent judiciary, one that enforces the law, rather than making law, and while the power to “interpret” is not found anywhere in our Constitution, alas, far too many judges today “interpret” the document as if those powers are there. Kudos to President Trump for calling them out.
This is Bob Siegel, making the obvious, obvious.
About the Author:
Bob Siegel is a weekend radio talk show host on KCBQ and a regular CDN columnist. His novel “The Dangerous Christmas Ornament” earned both the 2017 Independent Press “Distinguished Favorite” Award and the New York City Big Book Award. “About Read” lists this book as one of its Top 30 Recommended Action Adventure Books for 11-Year-Olds.
Lead Image: Pixabay for Pexels https://www.pexels.com/photo/blur-close-up-focus-gavel-531970/