Arnold Ahlert / February 9, 2017

Undermining Our Republic, One Lawsuit After Another

A lawless judiciary is running amok as leftists take to the courts to get their way.

In 1996, California voters approved a ballot initiative known as Proposition 209. It banned all preferential treatment based on race, ethnicity and gender in public education, employment and contracting. The decision was anathema to the progressive bean-counters and quota-mongers who did what progressives always do when the will of the people conflicts with their agenda: they found U.S. District Judge Thelton Henderson, who issued a temporary restraining order preventing the law’s implantation. Henderson’s reasoning? Because the elimination of preferences disadvantaged women and racial minorities, it violated the 14th Amendment’s equal protection clause.

Henderson’s affront to logic was eventually overturned, but this saga illustrates two things that afflict the nation to this very day: Leftists remain utterly contemptuous of the democratic process when the results of that process conflict with their “enlightened” worldview; and far more important, Americans are increasingly inured to Abraham Lincoln’s warning that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.”

Would that it were solely the Supreme Court. As usual, leftists were able to secure a ruling from federal district judge James Robart of Seattle restraining the Trump administration’s efforts to temporarily suspend visas for aliens “who cannot be realistically vetted for security risks because their native countries are either sponsors of anti-American terrorism … or have been left with dysfunctional or nonfunctional governments because of war,” as National Review aptly explains.

This is judicial abuse, and nothing makes it clearer than Section 1182(f) of immigration law, granting the president the power to “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 leftists have twisted Trump’s order into an attack on religion is unsurprising. It is even less surprising that a judge with a track record of left-leaning activism would oppose it.

But this is just the beginning of the Left’s effort to employ “useful” jurists willing to preserve their agenda, even if it thwarts the will of the electorate, a congressional majority and/or the Trump administration. Fred Lucas reports that there are more than a dozen lawsuits challenging Trump’s executive order, and they “largely stem from organizations bankrolled by billionaire leftist George Soros and Democratic state attorneys general” have been filed for exactly that reason.

The results of Robart’s injunction alone are as predictable as they are infuriating. “Lifting of Travel Ban Sets Off Rush to Reach U.S.,” proclaims a New York Times headline. The Times also refers to a “vigorous” vetting process that can take as long as two years.

Not exactly. “Because of a spike in Middle Eastern refugees needing placement, the Obama administration has decided to rush their vetting process to three months, from the original 18-24 months,” the Washington Times revealed — last April.

Americans should be clear about what is really happening here: progressives are once engaged in the process of finding judges willing to elevate the interests of aliens and their progressive enablers over Americans and national security.

Americans should also understand this particular battle is only the beginning of a war in which leftists will flood the courts with lawsuits aimed at undermining every facet of Trump’s agenda.

In what may have been one of his most misguided assumptions, Thomas Jefferson argued “for the permanency of the judicial offices” based on the idea that “few men in the society … have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

The rise of moral relativism, essentially the idea that one man’s “depravity” is another man’s “lifestyle,” has given the nation a plethora of judges completely bereft of anything resembling the union of requisite integrity and requisite knowledge. Thus, for example, Travis County Judge Sarah Eckhardt is quite comfortable wearing her “pussy hat” while sitting on the bench. It’s apparently OK because her job is largely administrative, and her judicial powers are limited to conducting marriages and administrative hearings.

Yet the ultimate judicial divide in our nation is the chasm between judges who believe the Constitution means what it actually says, and those who believe it is a “living” document rife with “penumbras” or implied rights necessitating interpretation. For the latter group, it is completely irrelevant the Framers fought over every word contained in our founding document. Moreover, members of the liberal wing of the U.S. Supreme Court have expressed their comfort with using decisions produced by foreign and international courts to inform their rulings.

The concept known as judicial supremacy began with Marbury v. Madison, the first time SCOTUS voided congressional legislation. It has now evolved to the point where Americans have been led to believe the Constitution “was deliberately framed in terms of heroic generalities precisely to give federal judges a wider scope for discretion,” as Stanford Law Professor Michael McConnell put it.

Columnist Clarke D. Forsythe echoes Lincoln. “Judicial supremacy fundamentally contradicts self-government,” he writes.

Sadly, America’s governance is often determined by who sits on our courts rather than who sits in our legislatures. This makes the selection of judges far more critical than it should be, to the point where Harry Reid invoked the nuclear option to stack the DC Court of Appeals with Democrats. Thus, Democrat hysteria surrounding the elimination of the filibuster to ultimately appoint Neil Gorsuch to the seat vacated by Antonin Scalia rings exceedingly hollow.

Article III of the Constitution grants Congress to create — or eliminate — every federal court but SCOTUS, a power that could be used to rein in much judicial overreach. But if Congress did put the judges on notice that unconstitutional rulings might cost them their jobs, Americans’ focus would be on our elected representatives when divisive political outcomes arose. “Can’t have that,” columnist Selwyn Duke writes. “Federal judges don’t have to be reelected — congressmen do.”

Again, the short-term implications are clear. Progressives will employ every opportunity to use the judiciary as a bulwark against a president they despise, and an electorate that has decimated Democrat legislative power at both the federal and state level. Moreover, as SCOTUS made clear on rulings from Roe v. Wade to Obergefell v. Hodges, jurists will continue to “discover” laws that have “no basis in the Constitution,” as Chief Justice John Roberts characterized the latter decision in his dissent.

That would be the same Chief Justice Roberts who also “discovered” ObamaCare’s individual mandate — argued as such by the Obama administration itself — was actually a tax, making passage of the health care law possible. A law giving the federal government control over one-sixth of the nation’s economy.

Long term, Americans are facing the ever-increasing reality that “five lawyers can determine what law means for 320 million Americans,” Duke explains. That system of governance may be many things. A constitutional republic isn’t one of them.

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