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 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.
Previous American presidents battled to keep the Judicial Branch from intruding on what they viewed as Executive prerogatives:
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.