Renegade Progressive Federal Judges and Constitutional Remedies

If you missed President Trump's news conference on Thrusday, look for it on You Tube or Fox News because it is a straight-shooting face-to-face effort to be honest with America. • • • THE IMMIGRATION EO COURT BATTLE GOES ON. Fox News reported Monday that President Trump plans to allow the legal process to play out after a federal appeals court halted his travel pause; after legal papers were filed by the Department of Justice on Monday. The 9th Circuit Court of Appeals last Thursday continued a stay on Trump’s executive order that temporarily halted travel from seven countries : Iran, Iraq, Syria, Libya, Sudan, Somalia and Yemen. Trump’s lawyers said Monday they will follow a suggestion by one of the circuit’s judges for an “en banc” hearing -- with 11 of the 25 active judges on the 9th Circuit Court to vote on whether the court should reconsider its decision. Only three 9th Circuit judges heard the case and all ruled against the administration. The judge who made the “en banc” request wasn’t identified in court papers, but news reports identified Chief Judge Sidney Thomas, an appointee of former President Bill Clinton. DOJ stated in its Monday filing at the Seattle district court that ordered the original stay of Trump's immigration EO : “Further proceedings in the 9th Circuit will likely inform what additional proceedings on a preliminary injunction motion are necessary in district court. Accordingly, at this time, defendants believe the appropriate course is to postpone any further proceedings in the district court.” Lawyers for Washington and Minnesota who started the case in Seattle also filed legal papers Monday asking for the case to continue so the court can decide on the constitutional issues involved. • • • CAN TRUMP TRUST THE 9th CIRCUIT. In an unrelated decision, on Tuesday, the 9th Circuit Court overturned the ruling of a lower court that found a 10-day cooling off period after the lawful purchase of a firearm was an infringement on the Second Amendment. The 9th Circuit overturning the lower court decision allowing existing gun owners and people with concealed-weapons permits to immediately take possession of a lawfully purchased firearm. Apparently the leftist 9th Circuit sees the Second Amendment and the Constitution as impediments in their crusade to transform the United States. The judgment is another chapter in an ongoing battle between pro-gun Californians and their anti-gun elected officials. • The 10-day waiting period issue began with Silvester v. Harris, a case litigated in 2014 by The Calguns Foundation (CGF) in the US District Court that agreed the waiting period violated the Second Amendment rights of individuals who successfully pass the standard background check and who are in lawful possession of an additional firearm, possess a Certificate of Eligibility, or have a CCW. • In this gun control case, an en banc review of the ruling has been sought by attorneys for CGF, Second Amendment Foundation, and two individual plaintiffs in a petition to the 9th Circuit Court of Appeals. CGF Executive Director Brandon Combs, released a statement : "In December, the 9th Circuit Court of Appeals bizarrely ruled that even a person legally carrying a concealed handgun as he buys another gun at retail needs to be ‘cooled off’ for another 10 days before exercising his Second Amendment rights and taking possession of a constitutionally-protected firearm. We believe that the 9th Circuit’s panel opinion was wrong as a matter of law. Not only did the panel incorrectly decide the Second Amendment issues in favor of the State of California, but in doing so it ignored important legal rules that govern the review of a lower court’s judgment after a trial." • The 9th Circuit is following the Progressive tactic of not attacking head-on the Second Amendment, but rather trying to limit the ability of American citizens to exercise that right, rendering it moot. • • • FEDERAL JUDGES AND THE CONSTITUTION. The US Constitution was created to protect the rights of citizens. Instead, leftist judges have created do-it-yourself interpretations of the Constitution used to oppress citizens and threaten their rights and well-being. The front-page example of that was federal district judge James Robart issuing an order to strike down President Trump's modest and temporary entry restrictions from the most chaotic and dangerous countries. • The tool of choice for the left is often the 14th Amendment that states, in what is called the Equal Protection Clause : "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." • Liberal judges say that illegal aliens are "persons" under the 14th Amendment entitled to constitutional protection. They ignore the original purpose of the 14th Amendment, which was to protect the rights of newly freed slaves. The documentation describing the debates behind it reveal no discussion at all about protecting illegal aliens or foreigners in other countries. Leftist judges have twisted and perverted the 14th Amendment to cover individuals who were not, according to the historical record, meant to be protected. In the decision of Plyler vs. Doe, the Supreme Court ruled that illegal alien children are entitled to free primary education because they are considered "persons" under the Equal Protection Clause even though they are in the country illegally : "Whatever his status under the immigration laws, an alien is a 'person' in any ordinary sense of that term[.] ... Instead, use of the phrase 'within its jurisdiction' confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory." • Once illegal aliens became entitled to free education without fear of deportation, the door was opened to a wide variety of free government services for them. The Plyler ruling is obviously a stretch of constitutional language that had nothing to do with illegal immigrants, and the consequences are multitudinous. American Thinker asks : if illegal aliens are entitled to equal protection, why, then, can they not vote like everyone else? And, this was essentially what Obama meant when he fuzzed around whether illegals could register to vote. Obviously, they are not entitled to equal protection or to the right to vote. • But Plyler, while broad, did not apply to foreign nationals OUTSIDE the United States. For that, we can thank Judge Robart's ruling regarding President Trump's temporary entry ban. In Washington v. Donald Trump, the states of Minnesota and Washington were seeking to overcome Trump's temporary entry ban from seven countries. Plaintiffs claimed they had standing to sue on two grounds : first, that citizens in their states would be adversely affected if the temporary ban were upheld, and secondly, that the states themselves would suffer if unvetted Iraqis, Somalis, Yemenis, and Libyans were not immediately allowed in. Robart ruled that : "The Executive Order adversely affects the States' residents in areas of employment, education, business, family relations, and freedom to travel. In addition, the States are harmed by virtue of the damage...upon their public universities ... as well as injury to the States' operations, tax base, and public funds." • So if a Libyan were entering the US to work at a pita shop, the grocery store would have standing to sue. Progressives argue often that businesses shouldn't be considered "people" under the law, but they have no problem when the designation serves their purposes. And, if states can merely claim that foreigners will come to their states, get jobs, and pay taxes, the states also have standing to sue -- thus meeting a standing requirement to be allowed to begin a lawsuit that can't be set much lower. Essentially, Judge Robart found standing for anyone to sue on behalf of foreigners. Judge Robart may not have found that foreign nationals have standing to sue, but he allows anyone with a tangential, ephemeral, or hypothetical relationship with foreign nationals to sue on their behalf. In effect, the 14th Amendment is extended to the entire world. • American Thinker points out the ludicrousness of Robart's ruling : "Imagine if a resident of Greenland claims that global warming is disrupting his seal hunting, preventing him from sending money to his second cousins in Minnesota. They can sue on his behalf. Imagine if a drone kills a terrorist in Yemen, and the family sues, saying he was merely an "Islamic Lives Matter" activist on his way to a workshop at the local madrassa and had applied for a scholarship at the University of Berkeley for peace studies. Berkeley could sue on his behalf. Imagine if anyone, anywhere wants to come to America, from Yemen, Libya, Syria, or any place you can think of, and the ACLU agrees to hire him as a professional demonstrator, and he doesn't get a visa. The ACLU can sue because their business would be affected. Effectively, Robart's ruling opens the door to everyone suing for the right to enter the United States as long as they can claim that someone inside the US will be affected. The 14th Amendment promised equal protection for ALL CITIZENS, but liberals are using it to promise open borders for the entire planet. If this ruling is allowed to stand, we will effectively be a nation without borders, no matter how many walls we build, because the judiciary will enforce an open borders policy, as they are doing right now." • • • THAT IS WHY TRUMP WILL WIN AT THE SUPREME COURT. But only if Judge Gorsuch is confirmed before the case reaches the Court. In a case fairly adjudicated, it's an open and shut case for the President. A decision to uphold the 9th Circuit would place a big question mark on the competence of any judge that rules in favor of it. He or she would be going against the Constitution and the Law and endangering national security all at the same time. Decisions like this are common in the 9th Circuit, but Supreme Court Justices are usually more careful. Ninth Circuit decisions are overturned in the Supreme Court so often that lawyers say that if you lose in the 9th Circuit, you are guaranteed a win in the Supreme Court. • But, if he loses, will the Republican Congress have the guts -- it has the right and one might even say the obligation -- to raise articles of impeachment against Justices who voted to uphold the 9th Circuit decision??? Even if the Senate cannot raise the 2/3 votes "of those present" needed to impeach and remove renegade judges who break their oath to uphold the Constitution, as judges are sworn to do, it would send a strong message to the judiciary that it is not immune from the Constitution it is trashing. 28 U.S.C. sec. 453 states : "Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.” • • • A CONSTITUTIONAL CHALLENGE TO THE FEDERAL COURT SYSTEM. The US District Court system (USDC) is NOT a constitutional court system. It is a statutory system established by Congress, and grants to the courts subject matter jurisdiction, which Congress can remove. Is the Trump administration wise enough to challenge a court system that it finds "obstructionist"? How many voters who otherwise would rebel at any other congressional effort to limit the subject matter jurisdiction of the USDC, might support an effort to check "activist federal courts," particularly becquse of a case popular with many Americans, in which the court system was incapable of operating properly because it disagrees with established case law and congressionally enacted statutes? • The established law is that Congress has "plenary power" over the admission and exclusion of aliens, Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), and has expressly has delegated to the President the broad power to suspend entry "of any class of aliens into the United States." 8 U.S.C. § 1182(f). The President's exercise of his Section 1182(f) authority is committed to his discretion by law, and thus judicial rewriting of the law is precluded. Moreover, Congress's delegation, combined with the President's own Article II powers, place the President at the apex of his authority when issuing an Executive Order relating to national security and immigration. The Supreme Court repeatedly has held, and as recently as 2012, that Article II confers upon the President expansive authority over foreign affairs, national security, and immigration. • As President Trump has repeatedly said, a nation without borders is not a nation. But, the 9th Circuit seems not to want anyone to have the power to assert border integrity. That decision is an egregious violation of the Constitution, making a mockery of US sovereignty. Steve McCann wrote recently in American Thinker : "The matter of the supremacy and influence of the judiciary in a representative republic has been an issue of contention since this nation’s inception, as the Founders, while geniuses in their overall concept of government, erred greatly in the creation of an unaccountable Judiciary by relying on a factious Congress to serve as a check and balance on a co-equal branch when necessary." A major debate occurred during the Constitution ratification process in 1788 about the structure, power and control of the Judiciary. The issues were : (1) the degree of independence and the level of accountability of federal judges; and (2) Judicial Review of laws and statutes passed by Congress. • Alexander Hamilton (the lead defender of the current system) wrote in the Federalist Papers No. 78 that the Judiciary would be the weakest of the three branches, because it would not be able to overpower the Congress that controls the purse strings, and because the President controls the enforcement of court decisions; forcing the courts to depend on these branches to uphold its judgments. And, argued Hamilton, federal judges must have life tenure to be independent, but Congress could remove a sitting judge via impeachment for high crimes and misdemeanors. Hamilton also argued that the courts should be given the duty of reviewing statutes passed by Congress to determine if they are consistent with the Constitution as a means of restraint on the legislature. Hamilton further stated that because of the courts’ inherent weakness in enforcing their judgments, the possibility of corruption affecting judicial reviews would be a non-issue. • Opposing Hamilton’s argument was Robert Yates, who wrote in the Anti-Federalist papers that his primary concern was that judges would substitute their will for the plain text of the Constitution : "There is no power above them [the courts] to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself." • Thomas Jefferson, a staunch opponent of a powerful central government, also recognized the potential abuse of power by an out of control Judiciary and a recalcitrant Congress. In a letter to a Mr. Jarvis in 1820, Jefferson wrote : "You seem to consider the judges the ultimate arbiter of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our Judges and their power are the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of judges from that is quite dangerous." • The most astute observer of the United States from a foreign perspective was Alexis De Tocqueville, who in 1835 published Democracy in America -- his reflections on America after a nine-month tour. Among his observations were the following : "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. The President, who exercises a limited power, may err without causing great mischief in the state. Congress may decide amiss without destroying the union, because the electoral body may cause it to retract its decision. But if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war." • And that is exactly what has happened. Since Marbury v. Madison in 1803, the federal courts have been gradually aggregating more power to themselves than the Founders originally envisioned. The judicial power grab, however, gained speed in the past 60 years as the judiciary has become an out-of-control and unaccountable bludgeon in lockstep Progressive politicians bent on transforming America. • • • IS THERE A SOLUTION? Daniel Horowitz, in his book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, offers several steps to combat an unbridled judiciary : (1) Limit the jurisdiction of the Supreme Court under Article III, Section 2, Clause 2 of the Constitution, which explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court. Even the first Chief Justice, John Marshall, acknowledged that the Court has no jurisdiction other than what Congress grants it (except for a few spheres of original jurisdiction in Article III). (2) Abolish or severely curtail judicial review for the lower courts -- since Congress created and can break, divide, or regulate the USDC at will (Article 1, Section 8, and the judicial vesting clause of Article III, Section 1), Congress has full authority over the creation of all courts below the Supreme Court. Congress can redraw and change the boundaries of the circuit courts or even eliminate them entirely and create new ones with new judges. (3) Defund enforcement of unconstitutional court decisions. As noted above in Federalist 78, Hamilton was unconcerned that the courts would become all-powerful as they had no means of enforcing their decisions. Therefore, the executive branch could simply refuse to enforce their edicts and Congress could cut off funding for enforcement in reaction to a court’s absurd decision. • However, central to any of the above steps is that Congress carry out its responsibility -- something that it has been lax in doing in this period ruled by ideology, partisanship and self-promotion. If the latest judicial debacle in the 9th Circuit cannot spur them to action, then nothing short of national chaos will. • BUT, if all else fails, the Founders gave citizens one last opportunity to rein in a runaway Judiciary. A Constitutional Convention to amend the Constitution can be convened by the States (Article V). A convention to consider pre-agreed amendments can be called by 34 states and any amendments adopted by the convention must then be ratified by 37 states. • • • DEAR READERS, the Founders also gave citizens, through Congress, one last judicial control mechanism. Impeachment. I mentioned it above in reference to the Robart / 9th Circuit decision in the immigration EO case. But, in reality, the Constitution is clear. Article I, Section 2, states : "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..." Article I, Section 2, states : "The House of Representatives...shall have the sole Power of Impeachment." Article I, Section 3, adds : "The Senate shall have the sole Power to try all Impeachments.... And no Person shall be convicted without the Concurrence of two thirds of the Members present." Article II, Section 4, states : "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." • There have been several impeachment proceedings since the adoption of the Constitution, principally against judges in the lower federal courts. Fifteen federal judges have been impeached by the House of Representatives. Of those fifteen -- 8 were convicted by the Senate, 4 were acquitted by the Senate, and 3 resigned before a decision in the Senate trial. The most important impeachments were those brought against United States Associate Justice Samuel Chase in 1804, against President Andrew Johnson in 1867, and against President Bill Clinton in 1999. None of these three resulted in removal from office by the Senate, and all three stand for the principle that impeachment, while a fundamentally political act, should not be perceived as a device simply to remove a political opponent. In that regard, the caution of the Founders has been fulfilled. In Nixon v. United States (1993), the Supreme Court determined that the federal judiciary cannot review such proceedings. • The runaway decisions that are actually lawmaking by the judiciary prohibited by the Constitution are another reason to keep and increase the Republican majorities in both the House and Senate. Remember this as the 2018 mid-term elections heat up.