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Judicial review and political shenanigans — 8 Comments

  1. “–there would be no point of having a written Constitution if the courts could just ignore it.”

    Which is what these activist judges are doing in illegally blocking Trump’s Executive Orders.
    The remedy is of course impeachment but obviously congressional democrats with the possible collusion of RINOs will block any impeachment of federal judges.

    That creates the very oligarchic tyranny of which Jefferson warned.

    But the problem extends deeper than corrupt, oath breaking judges and politicians. The media ensures that LIVs remain ignorant. Thus half of America is either actively pursuing or ignorantly condoning the erasure of the American Republic.

    Hopefully a way will be found around this problem for if not and however distant, civil war lies at the end of this road. That’s not hyperbole, simply the logical consequence of leftist activism unchecked by law.

  2. “But it established the idea that federal courts are able to declare actions of another branch of Congress to be unconstitutional.”

    Federal courts are a branch of Congress? Well, yeah, de facto that’s what they’ve become, but that’s not what they were intended to be.

  3. I spent the morning planting rows of arugula, golden beets, lettuce, spinach and kale. I harvested the last spinach from the coldframe. Simple, satisfying work.

    It is not simple or satisfying to contemplate the ramifications of the courts usurping the prerogatives of the executive branch. The lower courts seem hell bent on revolution. I don’t think it is hyperbole to predict we are standing on shaky ground.

  4. There is another possible outcome of these judges acting as just another group of partisans; giving Trump ample reason to either ignore, or defy, the courts alltogether. The judicial branch does not have any mechanism to enforce their rulings; that authority belongs with the executive.

    And it’s not without precedent.

    “John Marshall had made his decision; now let him enforce it!”

    KRB

  5. Congress isn’t toothless here- there is impeachment and Congress controls the purse that pays for the courts. Congress also has plenary power over all of the lower courts and can abolish them all should it wish.

    We do need a constitutional amendment, though. Term limits for judges. I would say no more than 10 years total as a judge is a good metric.

  6. Yancey Ward Says:
    March 18th, 2017 at 2:11 am
    Congress isn’t toothless here- there is impeachment and Congress controls the purse that pays for the courts. Congress also has plenary power over all of the lower courts and can abolish them all should it wish.

    We do need a constitutional amendment, though. Term limits for judges. I would say no more than 10 years total as a judge is a good metric.
    * *
    I support either term limits or retirement ages for judges, but it appears the Problem Children here are Obama appointees, and not yet subject to either.

    Dershowitz echoes the astounding reasoning as in Lawfare’s speculations (originally by Josh Blackburn) here https://lawfareblog.com/revolt-judges-what-happens-when-judiciary-doesnt-trust-presidents-oath:
    “That is, if Barack Obama selected these seven countries for extreme vetting, it would be lawful, because he lacks the animus. But because Donald Trump had that animus, it would be unlawful. ”

    “Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight. Imagine a world in which far more judicial review of presidential conduct is de novo, and in which the executive has to find highly coercive means of enforcing message discipline on its staff because it can’t depend on loyalty. That’s a very different presidency than the one we have come to expect.

    It’s actually a presidency without the principle that we separate the man from the office. It’s a presidency in which we owe nothing to the office institutionally and make individual decisions about how to interact with it based on how much we trust, like, or hate its occupant.”

    This is very scary ground.
    The Lawfare authors seem to think that this started with Trump, but I think it is just more blatant, and some judges have always made decisions based on their personal partisan feelings about the President.
    In the past they may have been more “partisan” than “personal” however (eg, supported Clinton or Obama even if they didn’t particularly trust him; or Nixon for conservative judges), but Trump combines both motives.

    Open rebellion by judges upturns every possible expectation of precedent and settled law, if they are willing to rule on everything based on personal objections to presidential RHETORIC, not actual policy mind you.

  7. Pray for the savior in DC to save you, if that is all you have. All it costs is your soul and the future. But that should be a small price for those that want to save this democratic republic.

  8. Historically, a presidential proclamation dealing with immigration would have been held to be outside the scope of judicial review.

    333 U.S. 103 – Chicago Southern Air Lines v. Waterman S.S. Corporation

    “15. The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction. The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. Coleman v. Miller, 307 U.S. 433, 454, 59 S.Ct. 972, 982, 83 L.Ed. 1385, 122 A.L.R. 695; United States v. Curtiss-Wright Corporation, 299 U.S. 304, 319-321, 57 S.Ct. 216, 220, 221, 81 L.Ed. 255; Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department.”

    http://openjurist.org/333/us/103/chicago-southern-air-lines-v-waterman-ss-corporation

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