Thursday, February 9, 2017

Undermining the Law

First Judge Robart and now the 9th Circuit Court of Appeal have ruled against President Trump's executive order that restricts travel from 7 terror hot-beds.  Arguments against the order rest on due process, equal protection, and First Amendment religious protections.  I did not realize that Constitutional rights extended into other countries.  We need to start toppling a lot of governments in order to make sure these rights are observed globally.  Or maybe these rights aren't conferred until the foreign national books a flight to the United States.  Interesting and diverting as these issues may be, judges are supposed to interpret the law.  What does the law say?

8 U.S. Code § 1182 - Inadmissible aliens

(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, 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

Legalese is usually an ambiguous mess - the better to let unelected bureaucrats and judges to implement their policy preferences - but this is surprisingly clear.  Would a 90 day travel ban on aliens from 7 countries fit the above language?  Clearly.  More interesting, there is no check on his ability to make this proclamation.  If the president deems it appropriate, it fits within the law.  It doesn't take a law degree to interpret this.  If the Rule of Law was taken seriously, Robart would have dismissed the case.

Throughout the Obama administration, I was frustrated that the Republicans refused to oppose the president when he went beyond his Constitutional authority  (e.g. implementing the Dreamers Act despite the fact that Congress failed to pass the legislation, bailing out car companies even though Congress voted down the bill that would allow him to do so, rewriting the Affordable Care Act, etc.).  They offered anemic resistance, often leaving their best tools (e.g. power of the purse) unused.  With Trump, we have the opposite extreme.  So desperate to oppose him at every turn, the left is beclowning itself.  The media are jumping at shadows (e.g. Trump Dossier, Trump may assassinate Press like Putin) and shrieking with panic on a daily basis.  The career bureaucrats are leaking his every phone conversation, setting up secret societies to oppose the boss that the people elected, and stonewall fact-finding efforts by the administration.  The judiciary has now joined these crazy antics with rulings that are based not on a sober reading of the law but on a desire to oppose a president with whom they disagree.

Where the Republicans were spineless and timid in opposition, the Democrats are mindless berserkers, not unlike the rioters in Berkeley last week.  The Republicans would do well to emulate some of the fiery passion and steadfast determination of the Democrats (Democrats will resist tooth and nail) while the Democrats would benefit from the calm rationality of the Republicans (Republicans never riot).

Such obviously political rulings only serve to harm the judiciary.  The rulings have rewritten the limits of a clear statute.  In an effort to oppose, judges are undermining the rule of law.

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