The Judiciary was designed by the Framers of the Constitution to be the weakest of the three branches of government. However, the journey from weakest to all-powerful began 10 years later with Madison V Marbury, when the judiciary granted itself veto power over any legislation, and nobody came with ropes to hang them. Had we only known then.
Over time they have come to virtually write legislation by the text their “opinions”. Classic case in point, every America who has ever watched a TV cop show knows that a cop has to read a suspect their “Miranda rights” before questioning them. Are Miranda rights a law? For all intents, yes. A law written by the Supreme Court in the 1966 case Miranda v Arizona. In recent years a single district judge (apparently) can stop any law duly passed by Congress, or any presidential act, simply by deeming it in-Constitutional.
However, this growing self-appointed power has always been Soft Power. No president before barack obama has ever flat-out disrespected a ruling of the Court, which he did repeatedly, and which the national press completely ignored. While individual judges have been impeached for misconduct, at no point has Congress or the President ever made good on a threat to impeach a federal judge for blatantly disregarding the Law and the Constitution in overruling the executive or legislative branches. [by the way, the famously cited Andrew Jackson story “he made his ruling, now let him enforce it”, is believed to never have happened].
A New Low, Even For the Judiciary
But now, not even the standard of putative Constitutionality appears to be necessary. Last week, District Judge Derrick Watson blocked the second Executive Order from President Trump ordering some controls relating to immigration, refugees, and visitors.
On Wednesday, Watson ordered a stop to Trump’s 90-day ban on travel into the U.S. by citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day pause on refugee resettlement from any country. The judge also stopped the government’s attempt to cap refugee resettlement and the compiling of a series of government studies and reports on how refugees and foreign visitors to the U.S. are vetted.
In his 43-page ruling, Watson offered no challenge whatsoever to the legal basis of Trump’s Travel Ban. His restraining order was based solely on his analysis of the motives of President Trump in issuing the Executive Order. Don’t believe me? Read the ruling yourself , and you tell me what it says. The good stuff starts on page 30.
As others have said before me, according to Watson’s logic, had this Executive Order been signed by Obama, by Hillary, or for that matter by George W Bush, it would have been legal. That is, in effect, a federal judge stopping a lawful act of the lawful President merely because of who that President is. Under that standard, there is no longer any point in America’s voters electing a President. The judiciary will simply decide who runs the country.
One Step Too Far
By Soft Power, I mean that the courts really only have as much power, beyond that granted by the Constitution, as the executive and legislative branches allow them to have. Their many usurpations have been incremental. Piece by piece, step by step, they have intruded further and further beyond what the Constitution allows. The other branches defer to them out of respect for the Rule of Law. While the Constitution provides means for them to be trimmed back down to size, nobody has ever employed such means.
Had the judiciary been satisfied with their current virtual oligarchy, they might have been allowed to keep what they had. But they took the next step.
More important, they took it against a Viking. A Viking who was elected because while Washington is full of self-serving gutless, backstabbing inkpen warriors, the rest of America is populated by Vikings.
There is going to be war.
They Fired on Fort Sumter
A quick flashback to 1860-1861. Shortly after the election of Abraham Lincoln, seven Southern slave-holding states seceded from the United States. Both sides immediately began arming up, and perhaps a war might have happened no matter what. Fort Sumter was a fort in the harbor of Charleston, South Carolina that the United States maintained control of. The Confederacy had already seized a number of federal facilities located in the Confederate states. They first blockaded and then eventually fired on Fort Sumter. Within a day or two, Union forces surrendered the fort. The shots fired here were the catalyst that set off the war (meanwhile 4 more states seceded and joined the Confederacy). The war ended four years later in the only way it ever could have: the vastly more wealthy, industrially strong, more populous and technologically superior Union crushed the Confederacy.
The analogy should be obvious. Judicial Power is Soft Power. These judges, these self-appointed oligarchs, have made two very serious errors. They have overestimated their own power, and they challenged the one guy who just does not back down or quit.
They took on a Viking. They are going to lose.