How wrong is Judge Orrick? Let Andrew McCarthy count the ways
It seems to me that, with the recent spate of federal court decisions about immigration policy from liberal judges, the judiciary has seized the power to nullify any executive order they wish, quite arbitrarily. That effectively means that, unless an executive order finds favor with every single federal judge in the nation, a venue can be found where it can and will be stopped, no matter how carefully it is crafted.
And that stoppage is more likely to happen to orders issued by presidents on the right than presidents on the left. After all, liberal judges are more inclined to try to extend their own powers, because many believe the law is an elastic instrument that must evolve with the times, and that part of their duty is to advance the cause of social justice.
Andrew C. McCarthy is one of my favorite legal writers, perhaps my most favorite. In this National Review article he has taken up the subject of the latest ruling by a liberal judge to invalidate an EO of Trump concerning sanctuary cities, and it’s well worth reading the whole thing. Some excerpts:
A showboating federal judge in San Francisco has issued an injunction against President Trump’s executive order cutting off federal funds from so-called sanctuary cities. The ruling distorts the E.O. beyond recognition, accusing the president of usurping legislative authority despite the order’s express adherence to “existing law.” Moreover, undeterred by the inconvenience that the order has not been enforced, the activist court ”” better to say, the fantasist court ”” dreams up harms that might befall San Francisco and Santa Clara, the sanctuary jurisdictions behind the suit, if it were enforced. The court thus flouts the standing doctrine, which limits judicial authority to actual controversies involving concrete, non-speculative harms…
Again and again, Justice Department lawyers emphasized to the court that Trump’s order explicitly reaffirmed existing law. Orrick refused to listen because, well, what fun would that be? If the president is simply directing that the law be followed, there is no basis for a progressive judge to accuse him of violating the law. Were he to concede that, how would Orrick then win this month’s Social Justice Warrior in a Robe Award for Telling Donald Trump What For?
That’s a whole lotta overreaching. If you know much about law (and McCarthy most definitely does), it’s shocking.
McCarthy points out something else:
In any event, eight years of Obama’s phone and pen have made it easy to forget that the president is not supposed to make law, and thus that we should celebrate, not condemn, an E.O. that does not break new legal ground. Orrick, by contrast, proceeds from the flawed premise that if a president is issuing an E.O., it simply must be his purpose to usurp congressional authority. Then he censures Trump for a purported usurpation that is nothing more than a figment of his own very active imagination.
Obama set a precedent that a president—a Democratic president, anyway—is allowed to bypass the laws of Congress with executive orders. Trump is not allowed to issue an executive order that conforms to Congress’s laws, but hey, he’s a Republican.
That precedent of Obama’s is one of the many reasons I thought Obama’s presidency was disastrous. No wonder the Democrats are nervous, and their judges eager to clamp down on anything Trump does.
That’s the premise of this article by Victor Davis Hanson:
The Left is understandably apprehensive of Trump because Obama set the modern precedent that a contemporary president can do almost anything he pleases by executive orders (and in Nixonian fashion can weaponize federal agencies, from the NSA to the IRS, in order to monitor and hound political rivals and perceived enemies). Sen. Harry Reid’s near suicidal destruction of the Senate filibuster captured the unreality of the times, as if Obama progressivism most certainly would be America’s new orthodoxy for generations to come…
n sum, Trump is the beneficiary of a dysfunctional opposition whose reaction to the close loss of 2016 is reminiscent of the unhinged Democratic response to the narrow defeat of 1968, when it doubled-down, went harder left, gave up on middle-class concerns””and was demolished in 1972.
There is as yet no credible response to Trump and certainly no opposing coherent agenda. Instead, the “Resistance” is being waged by cherry-picking liberal federal judges in hopes of delaying and slowing down executive orders in the courts, along with states-rights nullifications, organized advertising boycotts of conservative media figures, media collusion, jamming town hall meetings of conservative representatives, campus antics, and waging war on social media.
I actually think the agenda of the left has been more effective than Hanson seems to think it’s been (the left has certainly been successful in destroying my respect for certain members of the federal judiciary). But I hope Hanson’s correct rather than me.
What’s that I like to say? We’ll see.
This decision is so bad that even the 9th will have to reverse it based upon the case and controversy doctrine along with standing.
The DOJ needs to go after police brass, mayors, govenors, etc for nullifying federal law. Judges are a different can of worms. Nothing short of impeachment and conviction will solve that problem, and that is not going to happen.
At base, the problem is not liberal activist judges ignoring the rule of law. The problem is that there is no ‘corrective feedback mechanism’ that can be applied to the federal judiciary, when Congressional democrats place party ideology before preservation of the American Republic. Ultimately, the President and Congress are answerable to the voters. No such consequence applies to unelected, lifetime appointments. The Constitution needs another amendment. Given today’s Democrat Party, I suspect only an Article V Convention of the States is capable of achieving that goal.
So now we have a GOP Congress and President.
We’ve got potentially three more SCOTUS appointments to make during trump’s term (given the age of some jurists), and IDK how many for lower level courts.
Hope that trump is consistent with his criteria for the replacement judges top to bottom.
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In the meantime, trump was right – it should go to the SCOTUS for final determination (now that Gorsuch is there).
Oops, did I say trump was right? 😉
Not the first time to recognize some good from trump btw.
There are four vacancies on the 9th Circuit Court of Appeals and 15 vacancies on the District Courts of the 9th Circuit. That leaves us one more for another circuit. Works for me!
This sort of judicial activity has been going on for a long time. Especially on environmental issues. The Watermelons from the Sierra Club, Green Peace, and others have long known which judges will issue injunctions against private property owners when the enviros want to stop anything they think will be damaging to the environment. And for the enviro-whackos that means any thing man made. Like irrigation ditches that have been in place in a National Forest for 100 years. It happened to me. Unless you have a lot of money to litigate it all the way to the Supremes, they will wait you out and have their way.
Trump will have to litigate everything he does. I expect some judge to enjoin him from directing the military to carry out attacks on enemy targets without getting permission from Congress. Yes, they are that crazy.
Well I for one have long said the Executive (and the courts too) have too much freaking power.
Seeing some EOs get shot down makes me happy, in principle. Hated Obama’s phone and pen strategy. Trump has gone there too many times as well. Faithfully execute the laws. (I know, I know, that’s ostensibly what EOs do. But I’m sick of em)
About the previous commenter who suggests the president would have to Congress to pick bombing targets. Well, in my opinion the President shouldn’t have to do that provided he’s gotten a formal declaration of war, or were in a “minutes count” crisis.
He hasn’t gotten the formal declaration of war. Neither did his predecessor. That’s why, by the way, we’re now in an endless war cycle.
The executive has too much power. So do the courts.
I’m reading the White House website, in particular, the Executive Orders and the Executive Memos. Currently, the vast majority are just a request by the President to the Secretaries of the various departments to review regulations to ensure that they were really authorized by the law and that the regs actually follow the law. Then, within a certain time frame, submit a report with a plan of action.
Trump is not establishing new law or telling his staff to ignore what is on the books. He is telling everyone to follow the laws. Specific sections are usually referenced in these EO/EMs
When I read some blog posts about an EO or EM, it is frustrating that the writers (not Neo) will use the Times or Post as their source material and ignore reading the actual text. I usually comment by linking to the EO/EM and correcting some of the misrepresentations.
But, the 9th Circuit seems to want to use campaign speeches as evidence instead of reading what the EO/EMs actually say.
Bill,
I agree. The problem is the legislative branch has willingly surrendered.
Parker – yep.
One detail: in Venezuela, the Supreme Court has been invalidating each and every law from the Congress, basically shutting down the Congress.
Being extremely emotional about politics and thinking that it’s right to submit the Rule of Law to political interests in a common Hispanic mindset.
I’m afraid US is looking more and more as a Banana Hispanic Republic, every day.
Yann
a. Venezuela is a country in crisi
b. “Being extremely emotional about politics” …. seems to me to be a characteristic trait of plenty of white people in our country too.
I live in a city with a lot of Hispanics. They’re great people. It makes me mad that they’ve been Emmanuel Goldsteined by a lot of my former compatriots on the right.
I’ll be glad when the Trump era is over . . .
*crisis*, not “crisi”
What happened to all the Trum supporters that said once Trum gets power, he’ll fix things?
Even if he becomes the King of the US, what exactly is he going to fix that the rest of humanity has failed to do?
Fixing the Deep State would require another messiah at least.