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The Judicial Insurrection against Trump’s Presidency

The Judicial Insurrection against Trump’s Presidency

Judicial hostility to Trump’s immigration executive orders a proxy fight over whether Trump can exercise the powers vested in the Office.

http://www.cnn.com/interactive/2017/01/politics/trump-inauguration-gigapixel/

After the 9th Circuit refused to vacate a TRO issued by a federal judge in Washington State as to Donald Trump’s first executive order, I suggested that those judicial decisions not only were legally unjustified, they presented a threat to Trump’s lawful executive powers and that dropping and reworking the executive order would be a mistake:

To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

And so it came to pass, with a narrowed and reworked second executive order being enjoined by district court judges in Hawaii and Maryland.

There’s an interesting article at the LawFare blog, written by Benjamin Wittes and Quinta Jurecic, The Revolt of the Judges: What Happens When the Judiciary Doesn’t Trust the President’s Oath. The central thesis of the post is that judicial aggressiveness towards the executive orders may reflect distrust of Trump by many in the federal judiciary. That distrust, in turn, may be leading judges to cast aside the legally required deference to the political branches that the Constitution, legislation, and Supreme Court precedent require.

This “revolt” is evidenced in several district court and one 9th Circuit rulings against Trump on the first and second executive orders on visas and refugees. Wittes is brutally correct that the legal weaknesses of those opinions against Trump suggest something else is going on:

To put the matter bluntly: why are so many judges being so aggressive here?

The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.

Focusing on the two most recent district court opinions on the second executive order, Wittes writes:

We don’t mean here to do an exhaustive legal analysis of either court’s work. But suffice it to say that you don’t have to be a Trumpist to have questions. The Maryland opinion seems significantly stronger than the Hawaii opinion, but both have substantial holes….

… both the Bybee dissent in the 9th Circuit en banc and commentary by Josh Blackman and Peter Margulies on this site should give commentators at least a little bit of pause on a number of different substantive grounds:

First, the Establishment Clause analysis in both opinions is simply too glib. Blackman makes a powerful case that courts just don’t normally do Establishment Clause analyses in visa issuance cases involving people abroad. And there certainly doesn’t seem to be any kind of working rule that the government must have a secular purpose of the type that Lemon v. Kurtzman normally requires in situations like these.

Moreover, Bybee makes a persuasive case that the the 1972 decision of Kleindienst v. Mandel—in which the Supreme Court held that courts should not look behind a facially valid purpose on the part of the political branches with respect to visa issuance policies—deserves, at a minimum, more attention than these district courts (and the 9th Circuit panel) are now giving it. Whether it truly controls, as he argues, may be a closer question given some other Supreme Court cases, but the ease with which the courts are waving it away suggests at a minimum that a large number of judges are getting well out ahead of settled law.

Our point here is not that the district judges are clearly wrong. It’s merely that they are not clearly right—on a whole lot of points. And in the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive.

The Bybee dissent referenced is what I wrote about concerning the 9th Circuit’s decision not to re-hear en banc a three-judge panel decision refusing to stay the the Washington State district court TRO of the first executive order. The Dissent by Jay Bybee, joined by four judges from across the political spectrum, wanted the full court to hear the case because of egregious legal error in refusing to defer to the executive branch. Read the whole thing, it’s worth is. Here’s an excerpt:

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).

This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error….

The panel’s errors are many and obvious. Had it applied the proper standard, the panel should have stopped here and issued the stay of the district court’s TRO. Instead, the panel opinion stands contrary to well-establishedseparation-of-powers principles. We have honored those principles in our prior decisions; the panel failed to observe them here. If for no other reason, we should have gone en banc to vacate the panel’s opinion in order to keep our own decisions straight….

As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.

The Bybee dissent then went on to decry personal attacks on the judges involved in the prior decisions, and the claims that they were motivated by politics:

Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

Yet it appears there are judges who have decided to take matters into their own political hands. Wittes adds that possibility:

Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

Prof. Josh Blackman writes of the above analysis:

Judges in Washington, Maryland, and Hawaii are signaling that they are not going to treat President Trump as if he were any other President. The sorts of analyses we’ve seen are absolutely insane under long-standing law….

But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him. We are witnessing, they note, a “revolt of the judges.”

This demise of judicial neutrality is truly regrettable. Our Constitution already has a safety valve in the case of a crazy President: the 25th Amendment. Courts should not twist and turn established law as a form of self-help. As I wrote in Politico, “The judiciary should not abandon its traditional role simply because the president has abandoned his.”

This likely judicial distrust of Trump, at least among some at the district court level, is why I pointed out after 9th Circuit decision not to lift the injunction that Trump needed to pursue an appeal to the U.S. Supreme Court, and not to expect that reworking the executive order would satisfy judicial hostility, President Trump must not back down on immigration Executive Order:

The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.

By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process….

I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.

That would be a grievous mistake.

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

If the judiciary is so hostile to Trump, then there is no reason to think that hostility will stop with the immigration executive orders. So the fight over the executive orders may really be a proxy fight over whether Trump will be permitted to exercise the executive powers vested in the office.

In recent comments after the latest round of TROs halting the second executive order, Trump expressed regret that he had abandoned the first executive order. He said his gut told him to fight it, but he was advised that the better course was to rework it. He should have gone with his gut.

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Comments

How many of these vengeful little poisoned judicial seeds did Obama spread through the judiciary system, and how many more would Hillary have planted in four years?

Looks like it’s time for a third EO. Drop the pussyfooting stuff, all that “temporary” rubbish, and write the Executive Order Trump really wants. As long as The Judgocracy is going to oppose him, he should be fighting for something actually worthwhile.

    Close The Fed in reply to tom swift. | March 18, 2017 at 11:46 pm

    Dear Tom Swift:

    I’m in complete agreement. For myself, I voted for a muslim ban and every day there’s another muslim attack in Europe. How many citizens will we sacrifice on the alter of the left? I can tell you how many: Exactly as many as it takes until some elitist is killed. If a head of FB or Google, or Congressman, or some other self-satisfied “high level” leftie is killed by a muslim, finally, there may be an awakening. Until then, the death of we plebes is collateral damage.

    2gandydancer in reply to tom swift. | March 22, 2017 at 5:23 am

    Even after Gorsuch is added this case will be going to a Supreme Court that decided that not requiring the recognition of homosexual marriage could only be due to irrational animus. Are you really sure Kennedy won’t see the EO as a “Muslim Ban”, no matter how stupid that claim is?

    As far as I can see, Witte is wrong to think anything was lost by rewriting the EO. The 9th Circuit panel chose to concentrate its argument on previously admitted aliens despite the clarification, and the rewrite takes that off the table. Plus you don’t want it to go to a SCOTUS without Gorsich, weak reed though he will turn out to be.

    Meanwhile the EO opponents are out on a limb. If one otherwise unadmitted crazy goes all Allahu Akbar on us that limb will be sawed off.

I have never seen the court room as the “real world” and these judges and their decisions prove that. Separation of powers is dead…long live the judiciary!

Three questions, from the narrowest to the largest:

1. Even assuming the Lemon test applied (and that’s a big assumption), isn’t there a real basis for discriminating against Muslims from failed states that are rife with terrorism? It seems to me that there is.

2. If the author’s theory is correct, doesn’t this mean that the judiciary has simply arrogated to itself the right to veto the Presidential election. Isn’t that fundamentally, thoroughly, unconstitutional?

3. What happens when Trump realizes that the Courts are not treating him as a “real” president? Wouldn’t he be justified in treating the federal judiciary as not being “real” courts? I think these judges better thoroughly think through the ramifications before they push this further.

    2gandydancer in reply to Wisewerds. | March 22, 2017 at 5:37 am

    “Lemon test
    The Court’s decision in this case established the “Lemon test” (named after the lead plaintiff Alton Lemon),[3] which details legislation concerning religion. It is threefold:
    1.The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
    2.The principal or primary effect of the statute must not advance nor inhibit religion. (Also known as the Effect Prong)
    3.The statute must not result in an “excessive government entanglement” with religion. (Also known as the Entanglement Prong)” https://en.wikipedia.org/wiki/Lemon_v._Kurtzman#Lemon_test

    So, a “real basis” only satisfies prong#1. Prong#3 isn’t on point. The claim is that prong#2 is violated.

    2gandydancer in reply to Wisewerds. | March 22, 2017 at 5:40 am

    Yeah, what the Kritarchy is doing is unconstitutional. So was Obergefell. Whaddya gonna do about it?

zero out funding for the courts…

kinda hard to issue orders then.

you wanna play games?

then let’s play games.

    Close The Fed in reply to redc1c4. | March 18, 2017 at 11:51 pm

    Zeroing out their funding would be a congressional act. Funding starts in the House. Under the constitution, Congress has the power to eliminate all federal courts under SCOTUS. Article III, Section 1.

      redc1c4 in reply to Close The Fed. | March 19, 2017 at 12:16 am

      if the Executive branch refuses to spend the funds, there’s F all Congress, or the courts, can do about it.

      there is a balance of powers for a reason.

        Sam in Texas in reply to redc1c4. | March 19, 2017 at 12:46 am

        Not quite. If the Congress passes a bill saying spend the money on this thing and the President sign it into law, then he has to spend the money on this thing. This was litigated when Nixon was President. He tried it, he lost.

There are 2,758 US District Court Judges. Are we to expect, then, that whenever one of these judges disagrees with a Presidential order, that the judge can overrule the President? That means the President is the 2,759th most powerful person in the country. These judges, many appointed by Obama, would never have felt like they can overrule Obama any time they like.
This most recent judge said that he was overruling the President not because of anything wrong with the order, but because of things Trump said during the campaign. That reasoning means that the President could NEVER order any tightening of immigration to protect national security, even if he knew that Iran (for example) was sending spies and deep-cover terrorists to the US.

    alaskabob in reply to OldProf2. | March 19, 2017 at 12:08 am

    Ah… who doesn’t think Iran hasn’t already sent spies and deep-cover terrorists to the US?

    Walker Evans in reply to OldProf2. | March 19, 2017 at 4:39 pm

    “This most recent judge said that he was overruling the President not because of anything wrong with the order, but because of things Trump said during the campaign.”

    And that is a blatant abuse of judicial power! President Trump should:
    1) Announce that he does not recognize the judge’s power to override a Presidential Executive Order on immigration because … he doesn’t have that power, and;
    2) Request that SCOTUS censure this politically motivated judge and declare the ruling null and void.

    This recent judicial penchant for seizing powers delegated to the President by the Constitution needs to be stopped, and stopped NOW!!

It’s not distrust. It’s pure ideology. The same kind that backs social justice adventurism, elective regime changes, extrajudicial trials, catastrophic anthropogenic immigration reform, redistributive change, [class] diversity, scientific mysticism, and selective-child.

    Close The Fed in reply to n.n. | March 19, 2017 at 12:10 am

    N.N is right; for some reason, Obama was the tipping point in the left believing it’s now okay for them to use blatantly the power they’ve accumulated. So, it makes me wonder if electing Trump was too late….. And John Roberts, very untrustworthy. Bad choice, if ever there was one.

      Semper Why in reply to Close The Fed. | March 19, 2017 at 10:51 am

      I think a good portion of it was the mess about “being on the right side of history”. When all of your friends keep telling you that your politics are the culmination of struggle and destiny, it goes to your head.

“Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him”

Even if Trump isn’t following his oath of office (and these judges offer no evidence of that), how is that the courts’ business? The impeachment power lies with Congress, not the judiciary.

“So the fight over the executive orders may really be a proxy fight over whether Trump will be permitted to exercise the executive powers vested in the office.”

Trump does not need permission. The judges is question are choosing to rebel against our constitutional order. Trump is playing nice but that should end soon. The judiciary is sacrificing itself in service of an ideology that is hostile to Trump, conservatives and the rule of law. The only question is whether we choose to permit these judges to stay out of prison.

It’s simply a coup d’etat against the Constitution and the elected government being conducted by the federal judiciary. The judiciary does not know its place anymore in the Constitutional scheme and is not worthy of any respect.

One of the things the Framers builtin and relied on was the various branches defending and insisting on their prerogatives and powers to check the other branches when they trespass in areas they should not. Unfortunately, I think we have reached a point where the legislature and the executive could appropriately and Constitutionally tell the judicial branch to take a hike, and it would be the judicial branch members that need to be impeached, convicted, and removed from office for having committed, willfully and intentionally, Constitutional crimes.

    The coup against the Constitution happened a long time ago.

    There is no Drug Prohibition Amendment.

    Now tell me. Who (how many?) has noticed?

    2gandydancer in reply to Sam in Texas. | March 22, 2017 at 5:45 am

    “…the judicial branch members… need to be impeached, convicted, and removed from office…”

    Conviction takes votes you ain’t got. Now what?

So, Politico is spinning itself dizzy in an attempt to prop up admittedly unjustified judicial writing.

The thesis, stripped of its prettification, is that we have judges who are so deeply emotionally involved in losing the last election that they are no longer capable of judicial analysis. In fact, they have even lost the ability to locate and cite the applicable law, both statute and precedent.

Ok, that’s a theory.

Another theory might be that these are people who know very well that they cannot deal rationally with the applicable law, and so they are writing any kind of ragged mess for the purpose of — what? getting promptly reversed? what is the purpose?

Perhaps they are writing to placate somebody, and because they know they have no winning argument, any mess will do.

Perhaps we are looking at the end result of some sort of crime — bribery or blackmail.

Subotai Bahadur | March 19, 2017 at 1:05 am

If judges can make the assumption that President Trump will not carry out his Constitutional Oath, does it not make sense for the American people to assume that the Federal [and indeed any Democrat judge, state or Federal] will not carry out their oaths to the Constitution and the law? And if the courts are not based on the Constitution or law, other than fear what is the reason to obey them? Or tolerate them?

    Arminius in reply to Subotai Bahadur. | March 19, 2017 at 7:17 pm

    Precisely. This analysis jumped out at me.

    “But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him. We are witnessing, they note, a “revolt of the judges.””

    Because they suspect Trump might not follow his oath of office, they are blatantly violating their own.

    28 U.S. Code § 453 – Oaths of justices and judges

    ““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.””

    Since the rules are obviously different for Trump, these judges are just as obviously not administering justice “without regard to persons.” Robart in Hawaii wrote in his opinion that there wasn’t anything particularly objectionable in Trump’s E.O. per se. His only problem is that Trump wrote it. For from administering justice “without regard to persons,” with these judges the person is the only issue. Consequently any concern for equal right and faithfully and impartially discharging their duties goes right out the window.

    Arminius in reply to Subotai Bahadur. | March 19, 2017 at 7:20 pm

    P.S. I’m sorry but earlier I aimed for the reply button and accidentally hit the thumbs down button.

The rework does give insight into the judges.

Now what happens when the executive no longer enforces court orders?

    mariner in reply to MSimon. | March 19, 2017 at 1:38 am

    Never mind “enforces”.

    What happens when the executive doesn’t recognize court orders as valid?

    SDN in reply to MSimon. | March 19, 2017 at 7:46 am

    Which is why the Democrats controlling the Deep State is the problem. The unelected executive branch will enforce the court rulings. Unless they are presented with a compelling argument that doing so will lead to fatal results.

“If the judiciary is so hostile to Trump, then there is no reason to think that hostility will stop with the immigration executive orders.”

With all this apparent judiciary hostility, there is nothing, especially in recent times, that would indicate that it would end at the supreme court either. For a long time now, the judiciary is nothing more than a political weapon to bash your opponents with. Please, let’s stop pretending that it’s anything but this, it’s very counter-productive.

Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles.

Perhaps if the court in question didn’t behave as if it were a wholly owned subsidiary of the DNC and above the Constitution, people wouldn’t question and/or attack their decisions.

Common Sense | March 19, 2017 at 6:18 am

Not that this will help the current issue but President Trump has the opportunity to change the federal court system with so many opening to be filled.

Trump to inherit more than 100 court vacancies, plans to reshape judiciary

The estimated 103 judicial vacancies that President Obama is expected to hand over to Trump in the Jan. 20 transition of power is nearly double the 54 openings Obama found eight years ago following George W. Bush’s presidency.

https://www.washingtonpost.com/politics/trump-to-inherit-more-than-100-court-vacancies-plans-to-reshape-judiciary/2016/12/25/d190dd18-c928-11e6-85b5-76616a33048d_story.html?utm_term=.0b6893dca8c5

He can still fight the first … If he wishes to ?

Why not block all immigration until there is a final decision from the Supreme court!

Remove the so called objection to Muslims by including all immigrants.

Let them eat cake!

Bucky Barkingham | March 19, 2017 at 7:29 am

How about Trump issues an EO laying out all the legal flaws in the latest LibDem judge’s ruling and then stating that the Executive Brach will ignore the anti-Constitutional ruling. The battle needs to be joined sooner or later so do it now. The LibDems and NeverTrumps will scream “impeach him!”, but they already call him Hitler and want to impeach him. Also, time for the Roll-Over Part controlled Congress to take legislative action to rein in the activist judiciary.

Trump should revert back to the original EO – and fight the TRO.

While the EO is within his authority (both of them) and in no way unconstitutional (because foreign resident aliens can’t claim rights under the constitution) – the bigger issue, as outlined in this article – is one of judicial overreach, whose effect is in the nullification of constitutional powers granted the executive.

We’re setting REALLY BAD PRECEDENTS HERE. Doesn’t matter if you’re a liberal jurist and don’t like DJT or what he stands for – THE LAW IS THE LAW.

Rick

Saying that the judges issuing these rulings don’t trust the president gives them way too much credit.

It is not that they don’t trust the president. It’s that they can’t stand that he’s president. They are party of the “not my president” club. And they are lawlessly using their power to thwart him.

It had nothing to do with trust.

MaggotAtBroadAndWall | March 19, 2017 at 11:37 am

In the ’30s, FDR responded to a SCOTUS that overturned many of his New Deal schemes by proposing to pack the court. The backlash from the public AND the Democrat controlled Senate was sharp. In responding to FDR’s court packing proposal, the Senate correctly noted that the practical operation would be to turn the government into a government of men, not a government of laws. In other words, if the executive can pack the court with cronies, the Constitution will only mean what the current administration wants it to mean. Each subsequent elected administration would redefine the Constitution to please itself.

In this case we have the judiciary deciding that the unambiguous and duly enacted laws don’t matter. As the Senate said in the ’30s, we’re becoming a nation ruled by men, not laws. Except this time the ruling “men” are in the unelected judiciary – who are just making it up – rather than the duly elected executive branch.

Do the judicial actions against the Trump immigration EO really surprise anyone? If so, they have been living under a rock for the past fifty years.

Courts, especially federal courts, have been getting more and more liberal since the early 1970s. Politics and “social justice” ideals have been becoming more and more a part of judicial justification for decades. And, just as the liberal lunatic fringe has now expanded to incorporate nearly half of the population of this country, the judiciary has become swamped with liberal activists.

One thing to remember about activists is that results are more important than the process. Activists will use any means to achieve their goals, including lying, stealing and ignoring any laws, traditions and mores which might impede hinder their achievement of those goals.

And, as noted, these liberal, moonbat judges are terrified that the Trump administration will unravel the liberal/progressive gains that have been made during the last 50 years. So, we will see more judgements supported by “feelings” and less by facts and legal precedent.

This is simply another part of the war on Progressivism which is underway in this country. And, it might be a very good idea to simply ignore decisions which are based upon anything other than solid legal principles, precedents and the law.

    Gremlin1974 in reply to Mac45. | March 19, 2017 at 6:02 pm

    Exactly, if the judiciary can get away with this then we no longer have and haven’t had for a while 3 equal branches of government.

    I have often wondered what would happen if you could get congress to pass a “resolution” or whatever it would be called, vacating a ruling and having the president sign it? Basically, “we find the courts decision to be in error and that decision is vacated if agreed to by the executive branch.” In a co-equal system of government wouldn’t that be the way to go about it and reign in our current system of judicial overreach?

      Milhouse in reply to Gremlin1974. | March 20, 2017 at 8:12 am

      They’ve already tried that. It’s called RFRA, 1993. In City of Boerne v Flores the Supreme Court said “nice try”. Deciding what the constitution means is inherently a judicial function, and neither Congress nor the president have the power to do so, any more than the courts can pass laws or enforce them. Congress can limit itself as if the constitution means what it thinks it means, but it can’t force the states to comply with that interpretation. Thus, since 1997, the federal RFRA has applied only to the federal laws and government, not to state or local laws and government. Hence the need for state RFRAs.

What goes around, comes around.
Remember when Joe Biden said that the Senate should not hold confirmation hearings on a SCOTUS nominee by a lame duck president? (June 25, 1992)
Now the Dems are screaming because the Reps followed the Biden Rule and didn’t hold hearings on Garland.
Remember when Harry Reid said the Senate “must evolve beyond parliamentary roadblocks” and triggered the nuclear option?
Now the Dems are screaming some more because the Reps are following Reid’s precedent and using the nuclear option to confirm their people.
OK, so now the Dems are using their judges to stop anything the Pres does that they don’t like. So the next time there is a Dem in the white house, the Reps will call on their judges to stop whatever they don’t like. And the Dems will squeak like a bunch of stuck pigs. The Dems need to stop using precedent-setting tricks to increase their power. It’s always certain that the Reps will follow their precedents, and the Dems hate it when anyone uses their tricks.

“The Judicial Insurrection against Trump’s Presidency…”

We need to re-frame this. This is not an insurrection against President Trump – it is repression against the citizenry – us.

WE are Donald Trump.

Witte is correct from a legal perspective but wrong from a political one. The redrafting of the EO was politically wise. It has revealed that parts of the judiciary are going the way of parts of the media in abandoning their correct roles in favor of being political actors who have lost their souls but will pick them up again once this crisis they imagine is over. But a soul lost is never reclaimed. The crisis is invented for the sole purpose, forgive the pun, of leaving the soul behind and engaging in a war that has no principles and no end but certain and inevitable defeat. This kind of overreach is the wrong kind of war.

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