Judges for the #Resistance
There is a lawlessness rampant in the land, but it isn’t emanating from the Trump administration.
The source is the federal judges who are making a mockery of their profession by twisting the law to block the Trump administration’s immigration priorities.
If the judges get their way, there will, in effect, be two sets of law in America — one for President Donald Trump and one for everyone else.
In this dispensation, other presidents — especially Democratic presidents — get a pen and a phone. They get to exercise the full panoply of sweeping powers of the imperial presidency. Trump, on the other hand, gets a judicial veto — even when he is simply trying to undo the unilateral moves of his predecessor.
This is the clear implication of the latest decision against Trump’s rollback of the Deferred Action for Childhood Arrivals program. U.S. District Court Judge John Bates in the District of Columbia held that Trump’s decision was “arbitrary and capricious.” If nothing else, the judge is an expert on arbitrariness. He would force the administration to begin granting new DACA permits if it doesn’t explain to his satisfaction the decision to end the program.
This would make some sense if Trump were stretching to defy a legal regime duly passed by Congress. He is not. That is what President Barack Obama did.
Because Congress declined to pass the DREAM Act, Obama implemented a version on his own. He justified DACA as prosecutorial discretion and to this day denies that he rewrote the laws. But if that is true — and it’s the only legal defense of DACA — there is nothing to stop Trump from reversing it via his own pen and phone.
Prosecutorial discretion must work both ways, or the law is a ratchet always working against immigration enforcement.
Especially given how Obama’s defense of DACA as prosecutorial discretion was a transparent rationalization. It wasn’t as though immigration authorities were coming across so-called Dreamers during traffic stops and deciding that pursuing removal would be a poor use of time and resources.
No, DACA set up a shadow immigration system outside of and in defiance of congressional enactments. Eligible undocumented immigrants applied and then were awarded work permits and Social Security numbers, and not on a case-by-case basis, but essentially as a class.
This is why DACA’s sister program, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), which would have applied to a wider population of undocumented immigrants, was blocked in the courts, with an evenly divided Supreme Court upholding the injunction.
All the same arguments that sank DAPA should apply to DACA, but once Trump is part of the equation all the rules change. Bates ruled that the recession of DACA runs afoul of the Administrative Procedure Act — even though Obama ignored the APA in implementing it. Either the APA applies, in which case the original Obama action was invalid, or it doesn’t, in which case Trump is in the clear.
Bates wants to hear a more extensive legal argument from the administration on why DACA is illegal. This is a perverse way to consider the matter, though. More to the point is the fact that there isn’t any remotely plausible argument that it is unlawful to apply the law to undocumented immigrants.
Obama himself long maintained that he lacked the authority to issue a unilateral amnesty for Dreamers. We’ve gone from everyone assuming that the president can’t act in defiance of the immigration laws to judges insisting that a president must act in defiance of the immigration laws.
This is a more brazen attack on the law than anything we’ve seen from Trump despite his loathing of his own Justice Department. Books have been written about the coming descent of the U.S. into fascism, but evidently no one who promotes or buys these tomes cares about the black letter of the law, at least not when it doesn’t suit their political interests.
The complaints on the right, meanwhile, about an unelected Deep State trying to destroy the president are overdone. Yet here is an unelected branch of government overstepping its constitutional bounds to frustrate a core priority of a president who ran and won on the issue of immigration. This is corrosive of faith in our system, counter to the rule of law, and sophomoric on the part of men and women who are supposed to be neutral arbiters of justice.
The saving grace of the judiciary is that the Supreme Court, as of now, takes its responsibility more seriously. The oral arguments this week suggest that the court will, despite absurd rulings below, uphold Trump’s travel ban (although, as usual, it may all depend on Justice Anthony Kennedy).
This is something, but it doesn’t remove the shame of those judges who, when it comes to Trump, substitute the logic of #resistance for common sense and the law.
Rich Lowry is editor of National Review and a contributing editor with Politico Magazine .
https://www.politico.com/magazine/story/2018/04/25/judges-for-the-resistance-218104
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"The saving grace of the judiciary is that the Supreme Court, as of now, takes its responsibility more seriously. The oral arguments this week suggest that the court will, despite absurd rulings below, uphold Trump’s travel ban" (although, as usual, it may all depend on Justice Anthony Kennedy).
Since he was simply undoing the illegal actions of Obama, these decisions will probably not stand higher legal scrutiny. The Trump team should simply ignore.
What illegal actions were taken by Obama? What charges have been laid out by any court in any land against Obama? When was the trial? And, how much time did Obama get for the "illegal actions"? Oh yeah, that's right, none because, there were no illegal actions taken by Obama.
His EO was unconstitutional and not legally binding. Obama exceeded his presidential powers
I'm still waiting for a crime, if someone does something illegal they have committed a crime, if they commit a crime and, the law knows about it then they are arrested, jailed and, put on trial and, convicted of said crime or, illegal act. Where and, when did any of that happen?
Now, the two biggest opponents of DACA in the courts are Joe "I'll trample on the Constitution" Arpaio and, Jay Sekulow, the current presidents attorney. So far, every judge who has had DACA come before them have dismissed whatever case was involved in it.
We are about to hear from the Supreme Court - will you accept the obvious?
If Obama did, then most certainly Trump has also exceeded his powers through EOs.
Will you?
Absolutely, I welcome it
Trump is a criminal. Only when the benches are packed with 'Roland Freisler' cutouts will he be safe from justice.
IF trump is a criminal, he is IMO the kind of criminal that is as hands off as possible.
I'd say more like a mob Boss the brains of the outfit, stay as clean as possible but oversee whatever it takes to get the deed done. As trump says, "Words to me mean little, it's deeds that count." rules seem to be about the same for him.
Ask Flynn, (I'll bet he wishes he never met trump now)
You just describe very accurately the Clinton Crime Family.
As far as Trump. Money laundering and too many 'dirty Russians' in the closet. Gawd knows what else.
He has serious problems. Even Melania will only hold his hand if forced to.
When this is finally over there is going to be a lot of people that wished they'd never got too close to him and his family.
My opinion. Trump is a liar, cheat and a fraud. Same thing he's always been.
His 'Birtherism Crap' is going to bite him in the arse in spades. Deservedly.
Yeah. When one has nowhere to go and all day to get there, that's the path. Stay on it. The quicksand looms.
Aren't you talking about someone else. Don't forget paying Russian Intelligence for a fake Dossier and $80 million dollars.
Well at one time weren't they all friends ?
Now that you mention it, I have a photo of him.
Cheap shot. Completely uncalled for. Very unpatriotic.
And the conservatives are always saying Liberals and progressives are such low lifes. This one is lower than any micro amoeba.
As Trump would say..."Sad"....
Lol, Mueller is a pinnacle of virtue, who can never be mocked, that is until he is forced to say "Trump is innocent".......then I want to be within ear shot of a few liberals.
Not a cheap shot at all when you consider Mueller gave up his right to be respected long ago as this article and the comments contained within it prove.
Abusive Tyrannical Power
There’s a whole school of liberal jurisprudence that hates the constitution. They won’t ever admit it, but there’s no other way to understand their actions, unless they idiots who don’t understand what they do.
And here they have set a record of 22 decisions obstructing this President. We have progressive organizations running to the 3 liberal leaning Circuits filing their suits. It takes a long time for the appeal process to overturn their outrageous decisions and that's part of the problem with these activist judges legislating from the bench.
Dereliction of Duty:
Yep, those left wing judges are not only not upholding the law, but trying to bend it to fit their own images of it.
Suing judges is a difficult undertaking. The notion that Judges are free from civil action for what they do on the bench is deeply embedded in our judicial system. However, it can and has been done.
Ronin2 has excellent points in his comment#4.
Not staying within the parameters of their jurisdiction is a dereliction of the oaths they took. It's called overreach which effectively removes the judicial neutrality from the proceedings.
The situation of judges deciding law on ideological beliefs has been growing for years. DACA is just an attention grabber. Ag's across the country including the Federal AG should start filing civil charges against these individual judges and taking the issues directly to the Supreme Court.
One immediate benefit of this is that it is only natural that a judge being formally sued and under investigation for violating their judicial authority would be required to step down until the case is settled.
It wasn't impossible for lawyers during the Civil Rights movement to successfully sue judges. I do believe Civil Rights is for all of us.
Yep, I'm sure that John Bates is a "left wing judge" because you say so. Oh, wait.
Bates was appointed by George W. Bush and, approved by, dare I say it, a Republican Congress. I'm betting he is about as far to the left as you are.
George W. Bush, one of the major constructors for the Establishment's Deep State.
Are you supporting or sabotaging the left wing? Are you aware that Trump is President and as such he has the ability to appoint judges? Are you looking forward to having right wing jurists making their own laws from the bench?
You do realize that George W. Bush was one of the original Neo-Conservatives and, most presidents appoint judges that are close to their way of thinking, either conservative or, liberal or, somewhere in between. If you can't tell by my comment then let me give you an answer to one of your questions, yes, I know that Trump will appoint judges and, justices, that was one of the first things he did when he entered the White House, another thing he did was to fire judges and, justices that were investigating him in New York. The question that you and, your fellow conservatives should be asking is, is this going to end up with judges and, justices being fired or, removed from office for having a difference of opinion with Trump or, for trying to get to the bottom of illegal activity's by this White House.
Seeing as how I pay my own bills, don't spend more than I can afford and don't believe others should be forced to bail me out when I fall upon hard times does make me a bit conservative. Other than that why don't you ask some of the diehard right wing trolls that reside here how much of a conservative they think I am.
This goes far beyond just the judges that are blatantly obstructing Trump. For decades, judges that have been appointed by both Parties have been using political ideologies and personal prejudices to discriminate against minorities. Our judicial system has become a prejudicial system. It's gotten to the point that even judges are being discriminated against due to Party affiliations.
Moronic Partisans applaud their judges for doing so while condemning the other side for doing the same. 'It wasn't the right thing to, but since the other side does it , now it is the right thing to do.' That's all I ever hear from those who defend government officials who thumb their noses at what is right or wrong.
Lawyers and special interest groups go to great pains to file their actions in districts where judges are known to support their ideologies and are willing to show favoritism. They aren't looking for justice, just a win. Doesn't matter if their victory is later overturned by another court. Any win is good for publicity.
Judges are not above the law, they sit on chairs, not red and blue pedestals.
We have a system of checks and balances, it's time for the Executive and the Legislative Branches started using the tools they have to put our Judicial Branch back on the path of political neutrality. Of course, if you don't believe in "Freedom and Justice for All", you will disagree.
Agreed
I do agree with what you said but, IMO, it seems to be this all started back in 2000 with the election of GWB, the SCOTUS decision was, again IMO, politically motivated, 5to4, is politically motivated, since that time we have seen this kind of decisions from the SCOTUS and, it seems to have filtered down from the high court. The problem this story has is that the judge involved is a Bush appointee, which more than likely means he is a conservative judge.
Did you ever think that the reason the judges are "blatantly obstructing" Trump is because he is legally and, Constitutionally wrong?
Good morning Galen. Yes I have considered the possibility of Trump being legally wrong. Not being a lawyer discerning between legal and illegal is often extremely difficult, so I spend time reading dissertations from lawyers on both sides. Every time I do so I run into a common and often mentioned problem. Too many laws, many of which contradict each other. I have seen no real evidence yet. Circumstantial?
Many meetings and other forms of communication happen everyday in politics and business so the opportunity for collusion and or other illegal actions is always available. Just because someone was in the same room with someone else or had lunch with someone or had a private unwitnessed conversation does not mean a crime was actually committed. Just as in a murder trial, I will not condemn somebody based strictly on circumstantial evidence.
When it comes to these Executive Orders, I am thinking that we might need to look into establishing some new parameters on what can and can't be established by decree.
SCOTUS. When they hold the White House both Parties do all they can to stack the deck on the court in their favor, that is a given. Over time this actually serves to keep things fairly balanced. SCOTUS is not where our real problem with judges resides.
The problem is coming from judges who will never ever even be considered for a place on the high bench. Individual judges that can halt government actions, over rule the President and the Congress. This isn't the way it should be. This is one of those dangerous side effects you can get with prescription medications. This is one of the many things that need to be addressed that are happening below the top surface of our government.
There are several law school and political history sites with dissertations on this topic, you will be hard pressed to find any that support the idea of these lower judges having the power they have. It is a boring topic, not exciting or sexy, easily deflected. It is also a critical obstacle to maintaining a fair justice system.
My basic premise is that even though they sit on a Federal Court, a Judge in California should not be able to tell people in Florida what they can or can not do.
The problem with this premise is that the federal judge is just that, a federal judge, which means he or, she decides federal case law, not state case law, whatever is covered under federal law is what these federal judges look at, there may care is what the federal government says is the law of the land and, what the Constitution says is allowable.
If a federal judge in another state decides a case that was brought to them, it is a federal case, not a state case, if the judge decides that the case has merit and, fails to meet the guidelines of the law or, the Constitution, such as Trumps travel ban, then that judge can take action. If it's decided in California it doesn't matter, it is a federal case, it should effect the courts decisions in Florida as well because, that court in Florida will be a federal court, not a state court.
DACA is an EO. EO's are not law, period.
If the Dems want DACA all they have to do is get Congress to pass it as law and have Trump sign it. Good luck with that one; but there is no other way around it.
As for the moron judges legislating from the bench; one can only hope the Dems remember their stance now when some hard right federal judge tries to force a Democratic president to honor an EO written by a Republican.
Unfortunately, it doesn't seem Trump has very smart people trying the case for the government. This shouldn't be about DACA; this should be about the Presidents power over EO's. His lawyers should have told the judge to take a flying leap into the eternal abyss of hell. No judge has the power to force any President to honor an EO. I suppose it will take the Supreme Court to put the moronic lower federal judges back in their places, yet again.
And your point is what, exactly?
The problem for Trump is that the DACA beneficiaries signed on to the program in reliance of the government's promises. That issue of "reliance" is the key factor which has caused all the courts to date to rule against Trump.
Even Obama said it was temporary
Again, the courts have no power to make any president enforce an EO. They are not laws no matter how you want to spin it. What the court is trying to do is legislate from the bench. The Supreme Court has been pretty clear on the separation of powers among the branches. Unless an EO is found to be in conflict with an existing law passed by Congress; or infringing on the powers of Congress or Judicial- then it is up to the sitting President.
As for those "harmed" by Trump ending Obama's EO. Whose fault is it for not telling them it potentially had an expiration date? Why didn't they make the move to become permanent US citizens when they had the chance?
Want DACA to be the law of the land? Write your congress critters and tell them to get moving. Maybe if enough people write in they will take notice. I doubt it, as it is still a valuable tool to get the vote out for both sides; but it is worth a shot.
Actually it was the USG which made certain promises to the DACA recipients. That's why Trump keeps losing in court on this issue.
Don't like that fact? Feel free to whine to the courts but you'll lose too.
Oh give me a fucking break, the judicial has put the brakes on presidents and their initiatives for centuries. Seriously, trump is a big enough cry baby, we really don't need his supporters to amplify it.
Ya, right, Like your'e the only person on the planet that dosen't get it!!
Let's begin with his own words and actions:
"Responding in October 2010 to demands that he implement immigration reforms unilaterally, Obama declared, "I am not king. I can't do these things just by myself." In March 2011, he said that with "respect to the notion that I can just suspend deportations through executive order, that's just not the case." In May 2011, he acknowledged that he couldn't "just bypass Congress and change the (immigration) law myself. ... That's not how a democracy works."
Yet in 2012, he did it anyway. He put DACA in place to provide pseudo-legal status to illegal aliens brought to the U.S. as minors, including as teenagers. He promised them that they wouldn't be deported and provided them with work authorizations and access to Social Security and other government benefits.
What charges have been laid out by any court in any land against Obama?
None were when Trump gave Congress the chance to make it legal, but quite a few Governors had pending lawsuits when Trump finally ended it the same way Obama enacted it