With the runaway train of judicial supremacy consuming our political system, do elections really matter any more?
Anyone who has his head above the sand should recognize by now that the unelected judiciary – what was supposed to be the weakest branch of government – has been accorded the status of sole and final arbiter of every social and political question in recent years. But there is a subset of this judicial tyranny that is particularly disturbing. In addition to overstepping their jurisdiction, ignoring the Constitution, and abusing the rules of standing, courts are now using Obama’s discretionary executive policies (many of which were lawless) as a new legal baseline, thereby prohibiting Trump from merely reverting back to the way things were before Obama unilaterally changed the law.
Here are 13 prominent examples:
1) Executive amnesty: This must be at the top of anyone’s list. Obama’s unilateral violation of American sovereignty and immigration law was likely the most lawless act of an executive in recent memory. But when Trump simply countermanded that usurpation, a number of district judges – from William Alsup and Nicholas Garaufis to John Bates – said he must continue issuing work permits and visas to people who, under the law, must be deported. Shockingly, the Supreme Court refused to grant the government an expedited appeal despite the unprecedented circumstances, forcing the administration to first go through the crazy Ninth Circuit.
2) Presidents set refugee levels … except for Trump: The law (8 U.S.C. §1157(a)(2)) grants the president full authority to set the circumstances and numbers of refugees, yet several district judges, including Theodore Chuang of Maryland, ruled that Trump must continue the refugee policies of Obama. Evidently, only Democrat presidents can set the refugee cap. Unfortunately, the administration gave in to these courts and modified the refugee provisions of the “travel ban,” so this issue never had its day at the Supreme Court.
3) Temporary immigration status is really permanent: Temporary Protected Status (TPS) is designed to afford temporary residence to those here legally while a natural disaster happens to take place in their countries. Contrary to statute, Bush and Obama extended it to illegal aliens and made it permanent for many countries. Trump merely followed the statute and made this status temporary, yet Judge Denise Casper said that because Trump is a racist, the word “temporary” in the statute really means “permanent.”
4) Catch-and-release of bogus asylum seekers: Obama not only expanded the definition of asylum but began releasing even adults who came here as bogus asylum seekers. Judge Dana Sabraw mandated that Trump continue catch-and-release. Additionally, in July, Judge James E. Boasberg, a federal judge in the D.C. District, certified an entire class of Central American asylum-seekers to lodge an injunction against five ICE offices for not continuing another Obama policy of granting paroles to aliens who passed the credible fear test. Boasberg is also a member of the lawless FISA court.
5) Obama’s visa programs are now the law: One of the many immigration programs Obama concocted by administrative fiat was a program to allow foreign entrepreneurs to circumvent the visa process and apply directly for parole. Trump respected the fact that only Congress can create this program and merely discontinued it. Judge Boasberg, once again, ruled last December that he must continue it!
6) Take the Census, but don’t find out who’s a citizen: In July, Judge Jesse M. Furman indicated during oral arguments that he would side with the liberal states suing the Department of Commerce for adding a citizenship question on the 2020 Census form. Granted, it was not just Obama who stopped asking this all-important question, but this question was asked from the founding on up through the 1950s. But Trump can’t simply restore this commonsense practice.
7) Trump must continue Obama’s contraception mandate: Last December, Judge Wendy Beetlestone ruled that the Trump administration must continue enforcing the Obama-era contraception mandate, forcing employers to directly or indirectly provide contraception as part of their mandated insurance benefits for their employees. The Supreme Court already invalidated Obama’s mandate in the Hobby Lobby case, yet Obama found a way around it. Now, Trump must continue Obama’s discretionary policies.
8) Transgenders in the military: From the time of George Washington until the last year of Obama’s presidency, men who castrated themselves or imagined that they were women did not serve in the military. Obama changed that in 2016 without approval from Congress. Yet several judges in D.C., Baltimore, and Seattle mandated that Trump admit them into the military and continue a policy that never existed before 2016. Judge Marvin Garbis of Baltimore, a Bush appointee, even ruled that the Pentagon must pay for the “surgery.” Every president, as commander in chief, can determine military enlistment qualifications, but not Trump.
9) Obama’s teenage pregnancy program is in the Constitution: In June, a federal district judge in Washington D.C., Kentanji Brown Jackson, ordered the Trump administration to continue doling out $800 million in grants to private organizations to prevent teenage pregnancies. This program never existed in this form until Obama and has proven ineffective, but it must continue, because a judge said so.
10) Obama now sets regulations on cars … forever? In April, the Second Circuit Court of Appeals issued an injunction on the Department of Transportation’s delay of penalties to auto makers that didn’t comply with Obama’s added Corporate Average Fuel Economy (CAFE) standards. Obama dramatically expanded the penalty, and his decisions are now final.
11) Trump must regulate drainage ditches: In 2015, Obama declared that seasonal runoffs and ponds in your backyard are now “navigable” waters subject to federal water regulations. Trump merely restored the commonsense policy in place since 1980, defining navigable waters as, you know, waters that transport commercial ships, not breeding grounds for mosquitos. But Judge David Norton, a George W. Bush appointee, ruled that Trump must continue Obama’s policy, despite a Georgia judge finding the policy itself to be unconstitutional.
12) Hot air? Trump must continue Obama’s methane policies: Last year, Judge William Orrick ordered Trump to continue Obama’s lawless legislation of allowing the Bureau of Land Management (BLM) to regulate the venting and flaring of methane from oil and gas production. This has been devastating to our burgeoning natural gas industry. No statute on the books could conceivably grant such authority to the BLM. Orrick is the same lawless Obama-donor judge who declared a nationwide sanctuary policy attempting to block the DOJ from punishing sanctuary cities.
13) Obama regulated free speech of 3D gun blueprints; Trump must do the same: Obama’s State Department dramatically expanded its authority under the Arms Export Control Act (AECA) and International Traffic in Arms Regulations to stop Americans from merely publishing CAD files of 3D gun prints. This is the First Amendment, not a gun issue. The Trump administration merely stopped regulating this particular activity, but Judge Robert Lasnik ordered the Trump administration to block Cody Wilson from simply uploading a CAD file.
These are just the cases off the top of my head.
It is self-evident is that unless the entire culture and scope of power of the judiciary is reformed wholesale, elections will no longer matter unless Democrats win. Even a better Supreme Court cannot save us from an arbitrarily shopped district or circuit court that has the power to set national policy on everything under the sun.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.