Lower courts reign supreme: So much for the ‘travel ban’
Conservatives continue to entertain false hopes of transforming the judiciary through a “conservative” Supreme Court and through Trump’s appointment of 20 percent of the lower court judges. But the Supreme Court does not rein in lower-court judges, and the Trump administration keeps abiding by district judges’ nationwide injunctions, so the Left continues to gut Trump’s ironclad executive powers, even after he already won at the Supreme Court. The case of the “travel ban” is a perfect example of why Trump should finally delegitimize the entire concept of judicial supremacy rather than trying to beat the Left at its own casino game.
Throughout Trump’s first year in office, we watched one lower court after another create a right to immigrate and demand that the commander in chief surrender his power over sovereignty and national security to the courts. The courts violated 130 years of case law that emphatically concluded courts have no power to grant standing for lawsuits asserting a right to enter the country and that such decisions are exclusively up to the political branches of government. And this administration went along with the charade, even when a Massachusetts judge said its first, stronger, immigration moratorium was totally within the president’s powers.
On June 26, 2018, the “debate” over sovereignty should have come to an end when Chief Justice Roberts, writing for the 5-4 majority in Trump v. Hawaii, ruled that the president has categorical and plenary authority under 8 U.S.C. §1182(f) to exclude anyone he wants. However, on that day, I warned that “until we shut down the lower courts’ terrible practice of placing nationwide injunctions on national security policies, a power they manifestly do not have, the Left will continue shopping these cases to the same capricious lower court judges.” I also warned that experience with other issues has shown that as the lower courts continue chipping away at the original SCOTUS ruling, “the Supreme Court will gradually adopt their approach in the ever-evolving, one-directional ratchet of progressive jurisprudence.”
And here we are today. This AP article shows how a number of foreign nationals from countries on the so-called “travel ban” list – Iran, Libya, Somalia, Syria, and Yemen – continue successfully obtaining visas from the administration under the threat of incessant lawsuits. In an interview with a lawyer for the Council on American-Islamic Relations, a group named as an unindicted co-conspirator in a terror finance trial by the Fifth Circuit Court of Appeals, the AP observed, “When people file litigation, it attracts swift notice from the State Department or the Department of Homeland Security.”
The Trump administration allowed the lower courts to win by watering down the moratorium twice rather than having the Supreme Court rule on the original one. One of the changes in the watered-down version was relinquishing the categorical ban on visas and offering waivers to those who apply for them and claim exigent circumstances. The AP reports that of the 28,100 immigrant visa applications from those countries between December 2017 and Oct. 31, 2019, “11,325 have been deemed qualified for waivers and 16,775 have not.” So much for a “ban,” even on immigration from the very few countries on the list.
Now, groups like CAIR and the ACLU are using this against the administration. Agitation groups are now filing lawsuits and asserting that all these people are entitled to waivers. The AP observes, “The Supreme Court upheld the ban in June 2018, in part because of the promised waiver system that would allow people to come despite the ban if certain criteria were met.” That seems to be the thinking of administration officials based on what lower courts are now doing, but it’s simply not true.
While Roberts mentioned the existence of waivers as one of the factors to swat down arguments of the lower courts and of plaintiffs that the president had acted unlawfully, he offered one all-encompassing reason to uphold the ban without qualification.
Could US courts make animals into humans?
It’s the slippery slope question that proponents of judicial supremacism can never answer. If an unelected judge stands above the other branches of government over societal or philosophical questions affecting the whole of the people – and can redefine even God’s laws, basic biology, and common sense – then there is quite literally nothing the judicial branch of government cannot do. So, is there any limit whatsoever to judicial power?
Meet “Sandra,” a 33-year-old orangutan from Argentina that is in the news this week because it was transferred to a Florida facility. But there is some unique history behind this orangutan, to say the least. In 2014, animal rights groups in Argentina filed a habeas corpus petition on behalf of the animal to have her freed from the Buenos Aires zoo whose accommodations violated human rights. Judge Elena Liberatori ordered her released in 2015, suggesting that she "spend the rest of her life in a more dignified situation.”
"With that ruling I wanted to tell society something new, that animals are sentient beings and that the first right they have is our obligation to respect them," Liberatori told the Associated Press.
Now Sandra has found a home at the Center for Great Apes in Wauchula, Florida, which is billed as a “sanctuary” for apes where they can live free in a sprawling 100-acre reserve that fits their natural habitat.
With Sandra in the news, it got me thinking, what is to stop a judge from doing that in America? If U.S. judges are accorded authority to contort human biology, natural law, our history, our founding, case law, and ancient principles of sovereignty to make denizens of aliens, victims of criminals, and men of women, then why can’t they offer human rights to animals?
Where does the Constitution say that California judges control our border policy?
How much longer will we allow the inmates to run the asylum?
The Supreme Court only heard 60 cases last year. Meanwhile, the lower courts heard tens of thousands of cases, and their dockets are full of every political issue under the sun. If we are going to agree as a society that the judiciary now controls every political issue, including issues fundamental to our sovereignty, foreign policy, and national security, that essentially means that foreign invaders and smugglers and cartels control our destiny, regardless of who we elect as president or to Congress. Why? Because of California judges.
Late yesterday, Richard Seeborg, an Obama-appointed federal judge in the Northern District of California, issued a nationwide injunction on the administration’s pilot program for processing credible fear claims in Mexico, known as Migration Protection Protocols.
Rather than categorically suspending immigration requests at the border, the DHS issued a regulation in December to continue such claims but to have some of the illegal aliens wait in Mexico pending the outcome of the proceedings. As I’ve noted, statute is clear that the same way the president can suspend all entry, he can place partial restrictions or conditions on such entry, a point made by Chief Justice John Roberts himself last year in Trump v. Hawaii. But lower courts are always able to write orders more liberal than recent Supreme Court precedent.
Judges cannot empower foreign nationals to sue for a right to enter
The judicial power vested in a judge allows him to grant injunctive relief to an American seeking protection from a regulatory burden or criminal prosecution. Thus a judge can say he will not agree to punish a winning plaintiff even if an executive policy or legislative statute required it. That is judicial review.
A judge, however, has no such power to “issue an injunction” to enable foreign nationals to come into our country without permission of the president. This judge’s ruling is as valid as an injunction placed by me on an administrative policy. Courts simply lack such power and have no power to enforce these political musings, exactly as Alexander Hamilton had in mind when discussing the lack of concern for judicial power grabs.
It’s amusing to watch people treat Wong Kim Ark, the birthright citizenship Supreme Court case, as sacred (even though it explicitly bars illegal aliens from birthright citizenship), yet they never heed the words of its author, Justice Horace Gray, in an opinion six years earlier:
It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. Nishimura Ekiu v. United States, 1892.
This is not just ancient history. The high court said the same thing even in 1982, after we passed all of our current immigration statutes. “An alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 1982.
In his new ruling, Judge Seeborg noted, “To be clear, the issue in this case is not whether it would be permissible for Congress to authorize DHS to return aliens to Mexico pending final determinations as to their admissibility.” That, of course, is a political question “for the political branches of government to make, implement, and enforce,” concedes this confused judge. However, he then proceeds to use the time-tested trick of saying he doesn’t like how Trump did it.
Additionally, sensing the tenuous case of a district judge issuing an injunction outside of the case and outside his geographic jurisdiction, Seeborg said that “defendants have not shown the injunction in this case can be limited geographically. This is not a case implicating local concerns or values.” Thus, because he feels it’s not feasible to follow the Constitution and actually issue judgment only to plaintiffs, this wayward judge simply violates the separation of powers.
He justifies the practice particularly for immigration because courts have “consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” But he never cites a Supreme Court opinion and only cites Ninth Circuit cases that are brand-new! Thus, judges violate rules of standing and precedent for getting involved in border matters, and then, once they do so a few times unchallenged by this administration a few times, they cite similar modern judges as precedent!
Of course, nowhere in this opinion does the judge even address the emphatic language of 212(f) and 215(a) of the INA granting the president unlimited authority to do this in the plainest language. Nowhere does the judge cite Trump v. Hawaii or Sale (1993), in which the Supreme Court said 180 degrees the opposite. In fact, the judge cites the Ninth Circuit case that the Supreme Court reversed!
California judges and drug cartels control our sovereignty
Are we resigned to a destiny where cartels can determine who comes into the country and have California judges override the law? If a single progressive judge is vested with the power to override sovereignty and law, even when the Supreme Court just said the opposite, then there is no representative republic left.
Here’s a partial list of California judges ruling over the most sensitive national and even international issues:
- Dolly Gee of the Central District of California, among many other radical opinions overturned by SCOTUS over the years, said the administration must release all children after 20 days, even though the Flores settlement is outdated and statute downright requires the opposite.
- Dana Sabraw of the Southern District of California said that parents must be released with children too, thereby ruling on a political argument of the media’s virtue-signaling, when laws were not only written but updated in 1996 to explicitly close this loophole.
- Judge William Alsup of the Northern District of California ruled that Obama’s amnesty must remain for now, in violation of every immigration law on the books.
- Judge Jon Tigar of the Northern District of California, just like Seeborg, ruled that the administration can’t make a simple commonsense regulation of driving credible fear claims to points of entry, even though 215(a) of the INA states that “it shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”
- Judge Edward Chen of the Northern District of California ruled that Temporary Protected Status, rather than being temporary and discretionary, is permanent and mandatory for Trump because he supposedly has “animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.” This after the Supreme Court said explicitly that such political statements cannot be used and after Congress barred the courts from hearing this very case!
The president has powers over entry into the country without judicial review
Seeborg and Tigar sit on the U.S. District Court for the Northern District of California. This is the very court that said in 1996 that the “exclusion of aliens is a fundamental act of sovereignty” and that “the right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. (Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996).
Indeed, Congress has historically granted the executive branch broad latitude to defend sovereignty, more than on any other issue. As immigration historian Peter H. Schuck wrote in his scholarly book, Citizens, Strangers, and In-Betweens:
Congress has chosen to confer exceedingly broad discretion over the most far-reaching immigration decisions not merely to the executive branch, but to a cabinet official. … In the face of broad, express congressional delegations of authority to the president in the area of external relations, judicial power is the most problematic and the President’s authority, in Justice Jackson’s words, “is at its maximum.” There, “[he may] be said to personify the federal sovereignty.
Can a judge now “strike down” the administration’s Middle East peace plan? Can a judge “strike down” our military involvement in Afghanistan? Can a judge start issuing visas? Can a judge give standing to Iranians to “strike down” Trump’s termination of the Iran deal? This is exactly why the Supreme Court said in Mathews v. Diaz (1976), that “decisions in these matters [immigration] may implicate our relations with foreign powers” and therefore, these “decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary.”
The court further punctuated this point in Kleindienst v. Mandel, (1972):
In accord with ancient principles of the international law of nation-states, ... the power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.
But none of these California judges even recognize this foundational principle. At some point, it is the fault of the other branches of government for going along with this toothless charade.
The Freedom Caucus would be wise to begin making impeachment great again by impeaching Richard Seeborg and these other California judges. This is the same judge who recently said that administration cannot simply ask a citizenship question on the Census, which is the entire foundation of our Census and was a question that was asked from our Founding until the 1950s. It’s time to make one of these judges famous, and there’s nobody better to start with than Seeborg.
We are at a crossroads in our nation. Either we have three branches of government, or we have one branch of government, with the most liberal of the 94 district courts controlling every aspect of our country. Seeborg did put the injunction on hold until Friday. The administration should make it clear to the Supreme Court in an emergency appeal that if the high court does not police its own quite inferior branch and enforce its own long-standing precedent on the sovereignty of the nation, the separate and more powerful executive branch of government most certainly will.
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The national emergency panic is another opportunity for activist judges to embarrass themselves and the Constitution
Legal challenges to President Donald Trump’s emergency declaration are already piling up in the courts, as his political opponents look to a legion of black-robed oligarchs to stop the border security move.
But, if we’re being honest, the script at this point is pretty predictable, and it’s another opportunity for activists in the judicial branch to turn themselves into a joke. Even President Trump came into this fight ready for lefty lawfare:
"We will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn't be there, and we will possibly get a bad ruling, and then we will get another bad ruling, and then we will end up in the Supreme Court," said a frustrated Trump while making the declaration on Friday, adding that he hopes to get a “fair shake” at the Supreme Court.
The executive powers outlined in the National Emergencies Act of 1976 have been invoked a grand total of 58 times without controversy since the law’s inception. Thirty-one of those declarations are still in effect.
As LevinTV host Mark Levin explained late last week:
While the National Emergencies Act of 1976 should be rarely used for real emergencies, it has in fact been used over fifty times without controversy. The fact is the leftwing media and the RINOs do not view illegal immigration and the cumulative importation of millions of aliens into our country in violation of federal law as a big deal. If they did, they would’ve acted long before Trump became president. The president rightly does view it as an emergency. The law itself, as used by the president, does not violate separation of powers in this instance as it is applied quite narrowly, with the president moving around funds which he is empowered to do by Congress.
So, situations in foreign countries including Yemen, the Ukraine, Nicaragua, and Somalia are appropriate places for presidents to use statutory powers to declare an emergency and move funds around, but to do so when our own country is plagued by human trafficking, a border-driven drug crisis, and illegal alien crime? When our laws are being outright mocked and when our asylum system is being used as a backup plan for lawbreakers? Well, that’s a constitutional problem.
We’ve seen this all before: Activist judges will rule the way activist judges will rule, and lawfare-driven activists will seek them out to advance their agenda. The question is, what will the American people and their representatives do about it? My colleague Daniel Horowitz has a few ideas.
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SCOTUS’ Louisiana decision takes Roberts’ power play to a new level of aggression against the Constitution
Will the perfidy of Chief Justice John Roberts finally help conservatives slay their false idol of “appointing better judges” and actually fight against the entire notion of judicial supremacy instead?
I take no pride in seeing my thesis on the judiciary being proven correct every week, but once again we see that once we regard even lower courts as supreme to other branches on purely political questions, then simply “appointing better Supreme Court justices” will not matter. Much like drinking coffee with a fork, the more we accede to judicial supremacy, only using all our capital to get “our guys” on the high tribunal, the more we lose more of the existing members to the system. John Roberts has long ago become the new Anthony Kennedy, a fact that is now becoming obvious even to conservative court-worshippers.
Last night, John Roberts joined the four liberal judges in putting an indefinite injunction on Louisiana’s commonsense abortion regulation, which requires that abortion doctors have active admitting privileges at local hospitals within 30 miles of their practice in order to perform abortions.
As longtime readers of this column know, Roberts has been joining the liberal justices for quite some time in allowing bad lower court injunctions to remain in place, surreptitiously ensuring that the left-wing judicial agenda remains untouched despite the supposed new orientation of the Supreme Court. He has done this in other abortion cases, immigration, election law, and with a crazy global warming lawsuit – always refusing to categorically rein in the lower courts for stepping outside of bounds of judicial norms. However, the Louisiana decision takes Roberts’ power play to a new level of active aggression against the Constitution. Unlike in the other cases, the circuit court opinion below him (in June Medical Services, LLC v. Gee) actually got this one right and reversed a trial court injunction on the abortion law. Now, Roberts is actively issuing an injunction that the Fifth Circuit blocked, as opposed to simply allowing a lower court injunction to remain in place. The new Anthony Kennedy indeed. Or worse.
Abortion is a greater right than the real rights
First, it’s important to recognize that once again the courts view themselves as vetoing bodies rather than outlets to grant relief to specific plaintiffs with an actionable grievance. The regulation for this law in Louisiana has not even been fully written, and no doctor has definitively been denied admitting privileges to a hospital. This is what distinguishes this case from the Texas law that the Supreme Court “invalidated” in 2016 in the Hellerstedt case. In Texas, a number of the abortion doctors clearly would have been denied hospital access, but there is no proof of such denial in Louisiana. This technicality is at the core of the dissent that Kavanaugh wrote in this case.
More broadly, it’s amazing to watch how our legal system somehow believes it’s constitutional for even the federal government to regulate every last aspect of health care. Yet when it comes to a state regulating the qualifications of someone performing a dangerous procedure and killing a baby, somehow that is always out of bounds. So, the feds, who were accorded no power over health care in the Constitution, can regulate the minutiae of which insurance plans a company can offer, but can’t impose commonsense health care regulations dealing with life and death, even after the horrors of Kermit Gosnell’s abortion clinic was discovered. This is the absurdity of all the abortion decisions.
Remember, in the Hellerstedt case, Roberts joined with the other conservative justices to say that such regulations are totally within bounds, even under the Roe and Casey precedent of a right to an abortion. Why is he reversing himself now?
Consider the radical nature of this ruling. Even an unambiguous right in the Constitution, such as the right to bear arms, would never be read even by a conservative justice as stripping states of the power to issue regulations on the type of firearm that could be carried, felons owning guns, or the places that are off-limits to carry, such as schools and courthouses. As Scalia wrote in Heller, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He made it clear that “commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Yet when it comes to the judicially concocted “right” to an abortion, we have even Republican-appointed judges essentially saying that the Constitution protects every abortion “whatsoever in any manner whatsoever and for whatever purpose.”
Roberts’ appalling hypocrisy
Some might suggest this has no bearing on how he will rule on the merits of the case, which will likely take another full year to adjudicate, but we already see the hypocrisy of Roberts in plain sight. When lower courts issue injunctions against Supreme Court precedent, including decisions Roberts himself recently wrote, he has no problem taking a hands-off approach to those lower courts. But somehow, when a conservative lower court merely allows a state to mind its own business in a case that might brush up against a recent Supreme Court decision he himself disagreed with and now has the votes to overturn, Roberts parachutes in to overturn the lower court.
We are witnessing this trend every day with immigration cases. After the courts took the unprecedented step of interfering with the president’s power to exclude aliens, a power upheld by the most foundational court precedent for 200 years, it took a full year for Roberts to finally slap them down in Trump v. Hawaii. Yet ever since that decision, one lower court after another has placed injunctions on other actions of the administration regulating the flow of migration, and Roberts has remained silent. He refuses to even hear the appeal from the most radical court decision of all – the Ninth Circuit attempting to force Trump to continue Obama’s illegal amnesty.
Roberts has telegraphed the message to liberal lower court judges that he is OK with them violating his own precedent to such an extent that now the lower courts are taking another bite at the travel ban case itself. A district judge in California is allowing a class action lawsuit from foreign nationals (who should never get standing) to proceed because they don’t like Trump’s waiver process for those getting exemptions from the travel ban. But Roberts already ruled last year that there are no limitations on the president’s power to stop visas altogether, much less place technical regulations on who can or can’t get waivers. Don’t expect Roberts to commandeer that lower court any time soon as he just did with the Fifth Circuit.
“Well, what if Ginsburg retires and then we get another appointment? Won’t that swing the court?”
If you believe that, you are more credulous than Charlie Brown with the football. There are already signs that Kavanaugh will be the next Roberts. And it was none other than Kavanaugh who saddled us with Roberts when he was White House staff secretary for President George W. Bush. We could have gotten the much better Michael Luttig onto the court.
For all the capital we have burned trying to get those who burn us onto the court, isn’t it time we use our political capital, messaging, and political power to return the courts to their original job?
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New Florida Gov. Ron DeSantis declares: No more judicial activism!
In his inaugural address, newly sworn-in Florida Gov. Ron DeSantis, R, pledged to fight judicial activism, declaring that "the Constitution, not the judiciary, is supreme."
DeSantis, a former congressman and member of the House Freedom Caucus, took the oath of office Tuesday in front of Florida's historical Old Capitol. In his speech, he pledged to keep Florida's taxes business-friendly, protect the environment, and support vocational and technical training education.
Inheriting the responsibility of nominating replacements for three liberal state supreme court justices who are vacating office due to term limits, DeSantis said that the judiciary must be limited.
I say to you: judicial activism ends, right here and right now. I‘ll only appoint judges who understand the proper… https://t.co/GF5rK1uFLU— Ron DeSantis (@Ron DeSantis) 1546967691.0
Watch his full speech:
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