Category Archives: Courts

Briefly

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President Trump has promised to roll back the regulatory state, but he’ll need the help of a judiciary that has for decades deferred too eagerly to executive agencies.

Indeed.  As the WSJ op-ed at the link says, that’ll require the judiciary to recognize its role in the Federal government and, in particular, its position in the hierarchy.

The proximate matter here is a DC Circuit ruling in US Telecom Association v Federal Communications Commission which used the Chevron Deference doctrine (which holds that the Court should be spring-loaded to uphold an Executive Branch agency rule rather than considering its constitutionality—its legitimacy—de novo on its merits) to find for the FCC.  Judge Brett Kavanaugh dissented, and he based his dissent in large part on decrying that deference doctrine.  The WSJ asked

Perhaps the High Court will accept his invitation to revisit a doctrine [Chevron Deference] that has long been abused.

But the existence of the doctrine is the abuse, not that the doctrine gets abused. The Constitution made the judiciary a coequal branch of the Federal government, not a deferential one.

Full stop.

Law and Trump’s EO Regarding Travel Delays

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The 4th Circuit Appellate Court is hearing the Trump administration’s appeal of Hawaii and Maryland Federal trial judges’ preliminary injunctions blocking implementation of the President Donald Trump’s second Executive Order imposing a temporary travel delay of its own on persons from six Middle East nations from entering the United States (with provisions for case-by-case exceptions).  Even though Hawaii is in the 9th Circuit and not the 4th, I’m using the Hawaii ruling as my example here since the Maryland ruling is substantially the same, the Hawaii ruling is more readily available, and I’m lazy.

Judge Derrick Watson’s Hawaii ruling can be read here, and from that ruling…[emphasis added]

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose….

No truly reasonable, objective observer would read any of that into the EO’s stated, religiously-neutral purpose because no truly reasonable, objective observer would go beyond the plain meaning of the words to seek clearer understanding of them unless those words, as present, were unclear.  The word here are plainly clear; outside words are less than irrelevant; their importation here is inappropriate.  Judges must apply the law (here, the EO) as it is written and not in accordance with their personal moral precepts.  To do the latter is a blatant violation of their oaths of office.

To determine whether the Executive Order runs afoul of that command [the Establishment Clause], the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v Kurtzman….

The applicability of the Lemon test is nonexistent because the Establishment Clause is irrelevant to this case.  Aside from the fact that the EO, by design and declaration, has no religion-related purpose, the EO applies solely and strictly to foreign nationals who are outside the US.  That means they also are outside the United States’ jurisdiction.  That means the Constitution and its tenets and requirements do not apply to those foreign nationals.

For the court to assert that our Constitution reaches beyond our borders, for this court to claim our government has jurisdiction over persons (and by extension, to nations?) outside our borders runs contrary to our nation’s policies, contrary to international law, contrary to the very principles of what it means to be a citizen of a nation—especially for those persons who are citizens of a nation other than our own.

The 4th Circuit should overrule.

A Thought on Filibusters and Supreme Court Nominees

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In a Wall Street Journal piece on the potential for Senate Democrat obstructionism (my term) provoking an end to the filibuster as it concerns Supreme Court nominees, Kristina Peterson had this remark:

If the Senate is able to confirm Supreme Court nominees with just a simple majority, centrists in both parties fear that future presidents whose party also controls the Senate will have no incentive to pick a nominee aimed to garner bipartisan support.

What Peterson has missed, though, is that the Progressive-Democrats in the Senate have denied any possibility of bipartisan support for some time. There has been no such possibility at least as far back as 2012, when Senate Democrats announced through their spokesman, Harry Reid, that they would never work with a President Mitt Romney.

Pre-judging

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Democrats want Supreme Court Justice nominee Judge Neil Gorsuch to prejudge case that might come before him as a litmus test of his fitness to sit on the Court—i.e., his willingness to subordinate himself and the Supreme Court—the pinnacle of a coequal branch of our Federal Government—to the Progressive-Democratic subset of Congress.

Democrats…want [Gorsuch] to declare how he would rule in specific areas of the law—questions that every Supreme Court nominee declines to answer.

Vermont Senator Pat Leahy said last week he would “insist on real answers from Judge Gorsuch.”

And

At Monday’s opening day of Senate hearings, Connecticut Democrat Richard Blumenthal told Judge Gorsuch that while the committee might ordinarily respect a nominee’s reticence on cases, ordinary rules don’t apply for President Trump’s nominee. “If you fail to be explicit and forthcoming,” he said, the committee would have to assume his views were in line with Mr. Trump’s.

Because the inconvenience of rules can’t be allowed to impede the High and Mighty.  Never mind the utter lack of logic in Blumenthal’s “have to assume” conclusion (or his arrogance in presuming to speak for the committee): petty logic and impertinent Republicans can’t be allowed to impede, either.

This is both disgusting and an illustration of why Americans have been steadily repudiating the Progressive-Democrat Party in all levels of government over the last four election cycles.

Partial Immigration Moratorium

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The irrationality of some Federal District judges is being made palpable by their rulings against the latest Executive Order involving a temporary moratorium on folks from six terrorist- and terrorism-supporting countries.  Here’s one example, from US District Judge Derrick Watson in Hawaii:

The illogic of the Government’s contentions is palpable.  The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.

Yet he chose not to explain his own logic, nor did he deign explain the limiting principle he holds underlying this claim.  Indeed, he explicitly refused to explain himself:

The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise.

Thus: the illogic of the judge’s contention is palpable.  The notion that one can demonstrate animus toward entire groups of people by only targeting some of them is fundamentally flawed.

How small a minority of the group can be targeted without the judge deeming the entire group targeted?  Is targeting only terrorists in a group a necessary targeting of the entire group?  Is targeting a single individual—rightly or wrongly; that’s what trials are for, after all—necessarily a targeting of the entire group to which he belongs?

And which group in which he has membership—Islam?  Sunni Muslim?  His fellow citizens of a nation?  The group comprised of fellow members of his gender?  All groups?

Where is the limiting threshold?  Watson chose not to say.

And this:

[P]lainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.

Here is the judge dragging into the case things that are not in the case at all.  The matters before the judge are the Executive Order and its constitutional legitimacy and nothing else.  Campaign rhetoric, marketing commentary, are not relevant.  What is relevant–all that is relevant–are the plain text of the EO, existing immigration law, and the Constitution.  Full stop.

This judge has ruled solely on personal ideological grounds and not at all on the legality of the matter.  Ideology, political matters–policy–are for the political branches of Government, not for the judicial–as Article III makes plain.