(BREAKING NEWS: Just today rogue Judge Watson has turned his Temporary Restraining Order into a permanent injunction).
The U.S. Constitution’s system of checks and balances is obviously headed for a major test as Leftist judges
attempt to seize control of immigration policy. But it’s not the first such test in American history. Congress
and the President have plenty of recourse, including impeachment
but going far beyond it. They just need the guts to act.
President Trump recently scored a victory when Anthony Trenga (right) federal judge in Virginia, approved the selective travel ban [Virginia Judge Says Trump Order Is Not A Muslim Ban, But Actually Protects Citizens From Terror, by Jordan Schachtel, Conservative Review, March 24, 2017]. But Trump’s executive orders are still being blocked by other judges who apparently believe the judicial branch is not just the supreme, but the only legitimate branch of government. Thus Washington State Judge James Robart’s earlier ruling was upheld by the notoriously left-wing 9th Circuit Court of Appeals. As John Eastman of The Hill noted, the 9th Circuit did not even address, let alone rebut, the relevant statues which give the president authority to regulate immigration [It’s ‘Coup D’Etat by 9th Circuit, by Bob Unruh, WND, February 10, 2017]. Then Trump’s revised executive order was blocked by Hawaii Judge Derrick Kahala Watson, using entirely political rationalizations that even Trump’s fiercest opponents found incredible. BREAKING NEWS: Just today rogue Judge Watson has turned his Temporary Restraining Order into a permanent injunction [Hawaii Judge Puts Trump’s Refugee Order On Hold Indefinitely, by Kevin Daley, Dally Caller, March 30, 2017]
Inevitably, this issue will reach the U.S. Supreme Court—hence the increasingly bitter, and nakedly political, confirmation fights.
Obama undertook similar policies but, needless to say, no judge found fault in that president.
As it happens, John Locke, perhaps the greatest intellectual influence on the Founding Fathers, anticipated this problem:
[W]hosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.—Second Treatise of Civil Government, Sec. 202, Chapter 18.
Indeed, the idea that judges might attempt to pervert or overthrow the law, and should be punished for it, was raised far back in antiquity. The Old Testament itself makes reference to problem judges, whom the Jews referred to as “Rebellious Elders.” Deuteronomy 17:11-12 reads
- According to the sentence of the Law which they shall teach thee, and according to the Judgment which they shall tell thee thou shalt do: thou shalt not decline from the Sentence which they shall shew thee, to the right hand, nor to the left.
- And the man that will do presumptuously, and will not hearken unto the Priest (that standeth to minister there before the Lord thy God) or unto the Judge, even that man shall die, and thou shalt put away the evil from Israel.
Significantly, George Horowitz in his 1953
book The Spirit of Jewish Law. A Brief Account of Biblical and Rabbinical Jurisprudence with a Special Note on Jewish Law and the State of Israel
According to the Talmud, the prohibition in Deut. 17:12 did not refer to an ordinary man who refused to abide by a decision of a priest or a judge, but applied only to a judge: that is, an Elder (Zaken) a member of a superior court, such as the Sanhedrin of Twenty-Three or the High Court in Jerusalem. Such an elder who defied an authoritative Rabbinic interpretation of Torah only, not an interpretation of Rabbinic law, was found guilty of a capital offense. [P. 200]
Horowitz adds helpfully:
Whether the Supreme Court could pardon a rebellious Elder and overlook the affront to its authority and the damage to law and order, was debated in the Talmud. The opinion of the majority was against pardon, as it would tend to increase divisions in Israel. [P. 201]
Now that’s some check!
Under Article I, Section 2, Paragraph 5 and Article I, Section 3, Paragraph 6 in the Constitution, impeachment is broached as a recourse against misbehaving members of any branch of government. Yet throughout our history, we can identify several ways in which one branch of the federal government was checked by the people or another branch of government without resorting to impeachment.
- In 1798, after Congress passed the Alien and Sedition Acts, the Kentucky and Virginia Resolutions declared the ‘federal government had assumed undelegated powers’ and that the Alien and Sedition Acts were 'unauthoritative, void, and of no force,' within their respective borders.
This was a case of recourse via state legislature.
- In 1803, the Supreme Court declared an act of Congress void in the case of Marbury v. Madison. In Section 13 of the Judiciary Act of 1789, Congress had given the Court the power to issue writs of mandamus. However, SCOTUS found that this exceeded the enumerated powers granted to Congress by the U.S. Constitution.
Thus judicial review checked the power of Congress. This was essentially a unilateral declaration of authority by the federal courts.
This is an example of a direct check of the Executive Branch by the people.
- In 1857, the US Supreme Court ruled that runaway slave Dred Scott was the property of his Southern owner, not a legal person with standing to sue for his freedom. A number of northern states (New York, Ohio, Massachusetts, and Pennsylvania) passed legislation that nullified the SCOTUS decision, within their jurisdictions. As a result, it became difficult or impossible for Southerners to recover their “property” if it fled to a northern state.
This is a particularly interesting case because SCOTUS had made a technically correct ruling, but found its power was not supreme in the face of moral outrage.
- The War Powers Act of 1973 required the U.S. President to notify Congress within 48 hours of having committed the US Military to combat, and forbade such armed forces from remaining in a foreign country for more than 60 days without Congressional authorization; an additional 30-day window provided for an orderly withdrawal of such troops.
Here the U.S. Congress checked the “Imperial Presidency"
by limiting its ability to deploy American troops. The threat of this act being invoked
arguably prevented Barack Obama
from attacking Syria
Previous American presidents battled to keep the Judicial Branch from intruding on what they viewed as Executive prerogatives:
- President Andrew Jackson ignored a Supreme Court ruling, which favored the Cherokee Indians over the State of Georgia. Jackson famously said "John Marshall has made his decision; now let him enforce it" and he proceeded to support Georgia against the Cherokee.
- Abraham Lincoln placed judges under house arrest, when they defended the civil liberties of suspected Confederate sympathizers.[Sweltering with Treason, by Jonathon W. White, Prologue Magazine, Summer 2007
Note that these were cases when the judges appeared to have actually paid attention to existing statute and precedent—the Executive Branch just didn’t like the result. But today, we have legal “doctrines” which are simply invented. For example, the much-touted “separation of church and state” i
s based on a letter
that Thomas Jefferson wrote to the Danbury Baptists in which he used that term.
The letter was not a founding document, an executive order, nor an Act of Congress—hardly a foundation upon which to build a legal principle. It was simply seized upon after nearly 150 years by Supreme Court Justice Hugo Black, a
New Deal appointee, in Everson vs. Board of Education (1947).
But it is still widely utilized by the courts today—simply because no other branch of government will stop them
Rule by judges, “kritarchy,” has been developing in the U.S. for several decades. But is push now coming to shove, over the Left’s determination to Elect A New People.
President Trump may not have sufficient votes in Congress to impeach rogue judges. His best bet may be to follow the example of Andrew Jackson. When a judge or court tries to trample on presidential prerogatives, he might simply send the offenders a polite message, explaining that he is not required to comply with an illegal order, with a note indicating where the illegality lies, and proceed with business as intended.
And necessity may dictate that he consider Abraham Lincoln’s approach to insubordinate jurists.
In either case, he will be aided by the fact that the jurists who now confront him aren’t showing the basic respect to the law their more distinguished predecessors did.
They are, indeed, Rebellious Elders.
Patrick Cloutier [Email him] is the translator of Raciology (reviewed here) and the author of Three Kings: Axis Royal Armies on the Russian Front 1942.