Judicial Activism? Tyranny Is More Like It
Hamilton dismissed the judiciary's threat, but Jefferson was prescient about the "despotic branch."
“Since President Trump took office, federal district courts have issued 37 nationwide injunctions against the Executive Branch. That’s more than one a month. By comparison, during President Obama’s first two years, district courts issued two nationwide injunctions against the Executive Branch, both of which were vacated by the Ninth Circuit. And according to the Department’s best estimates, courts issued only 27 nationwide injunctions in all of the 20th century.” —from Attorney General William Barr’s speech to American Law Institute, May 21, 2019
Ever since the 2016 election, leftists have made it clear they will do their utmost to negate its results. And as the above quote makes clear, they have allies on the bench more than willing to trample the separation of powers. That’s happening despite Alexander Hamilton’s promise that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them,” because it “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”
As every sentient American knows, that is no longer the case. In fact, Thomas Jefferson was far more prescient when he warned that the judiciary would become the “despotic branch.”
In fact, “influence over the purse” was the latest outrage perpetrated by an out-of-control judge. On the Friday before Memorial Day weekend, District Judge Haywood Gilliam of the Northern District of California issued a preliminary injunction denying the Pentagon the ability to transfer $1 billion in defense funding to construct fencing in Yuma, Arizona, and El Paso, Texas.
The first question one might ask is how a judge in California gets to halt a policy that affects Texas and Arizona. The answer is simple — and damning: potential plaintiffs go “forum-shopping,” defined as a “practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favorable judgment.”
For those seeking to thwart Trump’s immigration agenda, Gilliam was an obvious choice: Federal Election Commission records reveal the judge contributed $6,900 to Barack Obama’s 2008 presidential campaign, another $8,500 to Obama’s Victory Fund four years later, and a $4,500 donation to the Democratic National Committee, along with $3,100 to the leftist Covington and Burling LLP PAC between 2012 and 2014.
Columnist David Horowitz reveals just how partisan Gilliam really is. “In 1996, the Northern District of California, the very court over which Gilliam presides, ruled that the president has ‘inherent executive authority’ over denying entry to aliens,” he writes. “That is the purpose of this border wall.”
It was not the first time judges attempted to usurp the president’s “inherent executive authority” allowing him to deny entry to aliens. When the president issued a travel ban against Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia — due to their penchant for exporting the same kind of terrorism that killed nearly 3,000 Americans on Sept. 11, 2001 — U.S. District Judge James Robart in Seattle issued a temporary restraining order “on a nationwide basis.”
That order was unanimously upheld by a three-judge panel from the reliably leftist Ninth Circuit Court of Appeals, while additional lawsuits were filed by other judges and other states. Moreover, even when Trump revised his ban, Judge Derrick K. Watson, of Federal District Court in Honolulu, and Judge Theodore D. Chuang of Maryland, still ruled against it.
And while it was all occurring, a mainstream media that has devolved into Orwell’s Ministry of Truth referred to the restrictions as a “Muslim travel ban” — all the racist implications fully intended.
Ultimately, the Supreme Court upheld the ban, with Chief Justice John Roberts correctly asserting that it falls as squarely within a president’s powers to issue it. The ruling ended 15 months of legal machinations, which gets to the heart of the problem. “The Supreme Court only heard 60 cases last year,” Horowitz explains. “Meanwhile, the lower courts heard tens of thousands of cases, and their dockets are full of every political issue under the sun.”
In other words, the sheer volume of unconstitutional judicial activism relative to SCOTUS’s ability to mitigate it overwhelmingly favors the activists.
AG Barr makes that reality even clearer. “When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table — we must win every case,” he stated. “The challengers, however, must find only one district judge — out of an available 600 — willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.”
Thus, our so-called system of checks and balances is nothing of the sort. Moreover, the number of agendas is virtually limitless. In addition to injunctions against Trump’s travel ban, activist judges have issued nationwide injunctions to prevent the administration from restricting grant money to sanctuary cities, ending the unconstitutionally initiated DREAMER program, preventing transgenders from entering the military, and putting a question about citizenship on the 2020 census. Several abortion and reproductive health policies have been stayed as well.
Leftists aren’t wholly to blame for judicial overreach. “Conservative activists tended to file suit against the Obama administration in district courts in Texas, while liberals are litigating against Trump on the West Coast,” columnist Max Bloom explains.
However, the numbers don’t lie. “In President Trump’s first year alone, federal judges issued 20 nationwide injunctions — as many as President Obama’s eight years in office,” Fox News reports.
In a speech given at the Federalist Society’s Seventh Annual Executive Branch Review Conference, Vice President Mike Pence revealed the administration is looking to challenge national injunctions. “The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them,” he stated. “And it’s imperative that we restore the historic tradition that district judges do not set policy for the whole nation.”
Congress could address the issue as well. Article III Section 1of the Constitution grants Congress to create — or eliminate — every federal court but SCOTUS. That power that could be used to rein in much judicial overreach.
Congress can also impeach judges that don’t adhere to the requirement of serving “during good Behaviour.” Yet in all of America’s history only 15 federal judges have been impeached. Eight were convicted by the Senate, four were acquitted, and three resigned before a trial outcome.
Why so few? Because if Congress reined in an out-of-control judiciary, it would be held responsible. “Can’t have that,” columnist Selwyn Duke astutely notes. “Federal judges don’t have to be reelected — congressmen do.”
Duke is too kind. The Legislative Branch’s abdication of its constitutionally mandated responsibilities has created a vacuum that activist judges are more than happy to fill.
Justice Clarence Thomas believes SCOTUS must enter the fray. “These injunctions did not emerge until a century and a half after the founding,” he states. “And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”
The sooner the better. America has been held hostage by the “least dangerous” branch of government long enough.