Our judicial branch of government is irrevocably broken, even more so than the other two branches.
To begin with, the entire premise of the judiciary being the final arbiter over constitutional questions is wrong. They have usurped power beyond the imagination of our Founders, even those who were skeptical of Article III. Worse, they refuse to use the Constitution as originally conceived as the guideline for determining the constitutionality of laws. Finally, even when applying the Constitution or statutes to relevant cases, they are incapable of divorcing their political views from legal arguments.
Last month, in Montgomery v. Louisiana, the court rewrote the Eight Amendment and applied it retroactively, thereby opening the door for the release of thousands of murderers sentenced to life in prison when they were juveniles. Those potentially eligible for release include this man who raped and murdered a 20 year old woman in Kentucky.
But nowhere is the problem with the judiciary more evident than with the upcoming case, Texas v. United States, regarding Obama’s executive amnesty. If there was ever a case that should be decided 9-0, it is this one. In fact, there is no reason the Supreme Court should have granted cert to hear this case at all. For once, the lower court ruled the right away. The Constitution grants Congress plenary authority over immigration policy. Obama’s violation of the nation’s sovereignty is blatantly preempted by Section 1225(b)(2)(A) of the Immigration and Naturalization Act, duly passed by Congress, which requires ICE agents to place all illegal aliens into removal proceedings.
Moreover, overturning Obama’s executive amnesty is the quintessential role of the judiciary. Unlike judicial review, in which the courts invalidate statutes passed by Congress or state legislatures, this case involves countermanding a lawless act of the executive in violation of congressional statute. At its core the role of the courts is to interpret the law, which is exactly what U.S. District Court Judge Andrew Hanen and the 5th Circuit Court of Appeals did.
Nonetheless, at least four justices agreed to consider Obama’s appeal and it is presumed by everyone in the legal community that the four Democrat-appointed justices on the court are unchangeably supportive of Obama’s executive action. This means the Left only needs to peel off one more vote, which is not too hard given the fact that Chief Justice Roberts and Associate Justice Kennedy have already legitimized Obama’s lawlessness in their appalling ruling on Arizona’s immigration law.
As such, should Justice Sotomayor, a long-time activist in open borders activism, be required to recuse herself from this case? This is a salient question posed by my friend, Ian Smith, in an opinion piece for the Daily Caller:
For over a decade, Justice Sotomayor served as a Board Member and Vice President of the open-borders legal advocate and long-time amnesty-activist, LatinoJustice. The Ford Foundation and Soros-funded group is at the forefront of efforts to advocate for DAPA’s “legality.” It’s accused the Texas-led coalition of 26-states of discriminating against “Latino families” and trying to bring back Jim Crow and it’s just submitted a brief in the Texas case asking Sotomayor and the other justices of the court to find Obama’s amnesty program constitutional. Judging by her past statements and connections with the organization, she won’t need much prodding.
According to open-borders activists, one “honor” Sotomayor’s earned during her tenure on the court (which has been far from stellar), is her being the first justice ever to use the term “undocumented immigrant” in a court opinion. As attorneys involved in immigration law know, “illegal alien” is the term that appears in our immigration statutes, regulations and case law. For any judge to refuse to recognize that it’s an accurate and objective term, should raise serious questions about their fairness, impartiality and potential for bias.
Smith goes on to note how Sotomayor was a member of the racist La Raza organization as well as LatinoJustice, a group that is involved in suing state and local jurisdictions for enforcing immigration law.
Liberals are bad enough at stifling their political views when deciding legal matters. There is no way Sotomayor will be able to shut the door on her decades of involvement in the very causes that are being promoted by one of the litigants in this case. We saw this happen with the marriage case when Justices Kagan and Ginsburg performed same-sex ceremonies while the case was pending in the circuit courts.
Justice Sotomayor considers herself a “wise Latina,” and as such, should be quite aware of the requirement to recuse herself given that her “impartiality might reasonably be questioned” [28 USC 455]. Justice Alito just recused himself from one of the most recent Supreme Court decisions because he owned some stock in one of the companies that was a party to the litigation [Federal Energy Regulatory Commission v. Electric Power Supply Association]. I’m sure whatever funds he had invested in that company pale to the lifelong emotional investment Sotomayor has in the cause of open borders.
Tell me again why every utterance from this court is deemed the “law of the land?”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.