What happens when judges abandon the Constitution and the law?

If you have read legal documents you will likely have noticed how detailed, specific and often obtuse the language is. The purpose of such language is to assure that the intent of the document is clearly set forth, and this language is well understood by lawyers.

However, despite the careful legal wording of President Donald Trump’s Executive Order (EO) temporarily suspending travel to the U.S. from seven countries with close ties to terrorism, U.S. District Judge James Robart in Washington found problems with the document last month, and issued a temporary stay. A revised second version of that EO, rewritten to avoid the objectionable parts of the first one, including removing one of the seven countries on the list, was found unacceptable by two other federal judges, U.S. District Court Judge Derrick Watson in Hawaii, and Maryland U.S. District Court Judge Theodore Chuang.

The revised document may as well have been written in the language of the Klingons, because these two judges ignored the Order itself, rejecting the travel suspension due to negative statements about Muslim immigrants Trump made during the campaign.

Even though the people who have to implement the EO must do only what it says, the judges, in their infinite wisdom, decided that what they imagine to be the thinking of the president is more important than what the document actually mandates, even though those who follow the EO will have no knowledge of what the president thinks, and therefore no obligation to implement those opinions.

Apparently, these federal judges are confused about their jobs or perhaps just don’t care about professional ethics or their sworn duties. They apparently believe that in ruling on a legal document they should ignore the actual document that is being challenged, and instead rely on speculation about the opinions of the document’s creator, and act to protect certain rights of immigrants and foreigners that the Constitution does not assign to them.

Under 8 U.S. Code § 1182(f) Congress granted the President broad discretion to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program.

That section reads: “Suspension of entry or imposition of restrictions by President - 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.” This section of the law goes on to assign the Attorney General authority over activities by airlines bringing in non-citizen passengers, further assigning complete authority over entry to the country to the executive branch of the government, not the judiciary.

The law is crystal clear in its meaning, and does not provide as exceptions to the power of the President the personal opinions of federal judges or the beliefs or motives that these unelected referees ascribe to the president.

Perhaps the reason these judges didn’t want to rule on the actual language and effect of the Order is that it disagrees with their personal opinions. The Heritage Foundation’s Hans Von Spakovsky, a former Department of Justice lawyer, told Breitbart, “I don’t think [these judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the law and [Supreme Court] rulings based on their own personal policy preferences.”

He notes that, despite the plain text of the law and prior Supreme Court decisions, these rulings are “destructive of the rule of law, which is the entire basis of our Republic.” This, he said, “is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight the way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”

Indeed. What can be worse for a country that lives by the rule of law than to have some judges that do not follow or honor the law or the Constitution, but instead make law from the bench or twist laws to suit their personal or political preferences? That is what liberal judges do, and this behavior has reached crisis proportions.

These legal rulings raise important questions:

What is the proper response to a federal court ruling that is so plainly contrary to the law? Should the Trump administration follow a clearly illegal ruling and attempt to overturn it though a lengthy appeal process, or defy the federal courts?

What should happen to judges who issue rulings are at odds with laws and the Constitution that they are sworn to uphold?

Aren’t these judges directly responsible for any harm done to American citizens as a result of persons with the intent to do harm getting into the country by virtue of their rulings?

Judicial activism in Trump travel suspension case is dangerous

The recent hullabaloo over President Donald Trump’s temporary suspension of travel from seven Middle Eastern countries with ties to Islamic terrorism has dominated the early days of his administration. Trump’s action suspends entry to the country as his administration seeks better methods of vetting potential visitors to the U.S. for national security reasons. This incident has brought to the fore once again the high degree of activism in the federal judiciary.

Judicial activism involves interpreting the U.S. Constitution and the nation’s laws to achieve some non-legal, socially desirable leftist/liberal end favored by judges. Politics trumps the law.

The first instance of activism occurred in a federal District Court in Washington State, where Judge James Robart allowed a suit by the state’s attorney general to go forward, despite the fact that Washington State did not have legal standing to sue the federal government over Trump’s executive order. To establish legal standing a plaintiff – in this case, the whole of the State of Washington, not some individuals or some entities within the state – must demonstrate that the travel suspension would cause it irreparable harm. According to uslegal.com “irreparable harm” means that “the type of harm threatened cannot be corrected through monetary compensation or conditions cannot be put back the way they were.”

Robarts ruled that a ban on travelers from seven countries “affects the state’s residents in areas of employment, education, business, family relations and freedom to travel,” and said it also harmed the state’s public universities and tax base.

How many citizens of these seven countries actually work or attend a college or university in the state of Washington, and of that number how many are not within the borders of the United States at this time? Is it likely that there are sufficient numbers of them that their absence for another 90 days will actually cause the State of Washington – not the institutions or employers, but the state itself – irreparable harm? It is reasonable to believe that there are relatively few people in these circumstances, and that the harm would be of little significance to State of Washington.

However, in his ruling, Robart said the Washington AG had met the high burden to justify a restraining order by showing that Trump’s order was causing “immediate and irreparable injury,” and that the state had a substantial likelihood of winning its underlying lawsuit challenging the constitutionality of the travel ban.

Interestingly, U.S. District Judge Nathaniel Gorton in Massachusetts reached the opposite decision earlier the same day. He understood the law that gives the president the exclusive authority on national-security grounds to impose the temporary suspension on travel to the U.S., and that under the U.S. Constitution immigration is under control of the president, not the judiciary.

Title 8 United States Code, section 1182(f), which was enacted as section 212(f) of the Immigration and Nationality Act, is entitled “Suspension of Entry or Imposition of Restrictions by President” and states: “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.”

That statement is clear as it can be: the president has the authority to do what Trump did. The president, not the judiciary, has both constitutional authority and statutory authority over immigration, as former President Barack Obama would say, “Period!”

The administration appealed Robart’s flawed ruling to the Ninth Circuit Court in San Francisco, and the three judges who heard the appeal predictably upheld the initial ruling, since this appellate court is notoriously liberal/activist, and has the reputation for being a federal court whose decisions are frequently overturned by the U.S. Supreme Court.

Neither Robart nor the three Ninth Circuit judges – William Canby Jr., Richard Clifton and Michelle Friedland – dealt with the actual law giving the president the authority to do what Trump did in any meaningful way. They acted outside their narrow area of authority and improperly interfered with lawful actions by the president.

Since Robart issued the temporary restraining order on February 3rd, 77 percent of 1,100 immigrants/refugees that had entered the U.S. at the time the situation was analyzed came from the seven countries in the travel suspension, a substantial increase since before the order was issued.

Perhaps none of them are terrorists or will become terrorists and commit some atrocity against Americans, but this is a prime opportunity for terrorists to get into the United States, with the blessing of four federal judges.

Constitutional law scholar and conservative talk radio host Mark Levin termed the appellate court’s decision to uphold the stay as “disgraceful” and “pathetic.” Levin points out that the court has improperly conferred due process and constitutional rights onto this class of individuals.

Judicial activism does not always create potentially dangerous situations, as this incident has, but all activism is harmful to some degree, and must end.