Tag Archives: immigration

Constituents

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Who are a Federal judge’s—at any level of the judicial hierarchy—constituents?  I asked this question of a number of folks, and the most cogent answer I got was this: “in order, the law and justice.”  Even that answer, though, is only about one-third right IMNSHO.

Here is the first oath of office Federal judge and Justice must take; it’s the same as any Congressman must take.

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Here is the additional oath of office that a Federal judge or Justice must take.  Notice that his prior oath does not expire (no oath can); this oath adds to it.

I, [name], 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 [judicial position] under the Constitution and laws of the United States. So help me God.

Here is what Article I, Section 1 of our Constitution says about legislative authority.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Thus, a Federal judge’s constituency begins and ends with the Constitution.  Full stop.  His constituency does not extend to “the law,” only to the supreme Law of the Land.  All other law, which can be enacted only by the people’s elected representatives in the legislative and executive branches under our system of governance, must be subordinate to and compatible with the Constitution.  A judge’s duty here is to reject a law that is not compatible, that is unconstitutional.  Or on its constitutionality, to apply it as it’s written.  His oaths of office demand he defend the Constitution, and that defense enjoins him to not write law, not modify law, only to apply it.  To this end, a judge’s interpretation of a law is only for the purpose of applying it as written, not to “interpret” it to his convenient end.

Not “justice,” either.  What is justice, what is just, are social and political determinations, and those determinations, too, can be made only by We the People, directly or through those elected representatives of ours.  A judge can only apply the law before him as it is written (or strike it); he cannot judge a case according to his own sense of justice or social mores.  He certainly can rail against the injustice (from his sense of it) of a ruling to which the law before him drives him—and he should—but he can rule in no other way but what the law itself requires.

This makes especially reprehensible the 4th Circuit’s ruling on President Donald Trump’s immigration Executive Order.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No 78.

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.

Syrian Refugees

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One Syrian, Kassem Eid an erstwhile media activist in Syria, and a victim of the gas attack that was Bashar al-Assad’s calling of then-President Barack Obama’s (D) bluff of a “red” line and that exposed Obama has being too timid to back his words, had a thought about aid and support to Syria’s refugees in a recent Wall Street Journal.  Here’s the money quote.

America, if you really care about refugees, then take to the streets, call your representatives, and ask for even further action against the murderer who displaced us. President Trump could order strikes to fully ground Assad’s air force, whose bombing forces civilians to flee. The Assad regime still has more than a dozen operational military airports from which to continue its attacks. Help civilians by creating safe zones and no-fly zones.

If you really care about human rights, work to remove Assad, the tyrant who has killed, raped, gassed, burned, tortured and displaced millions of civilians. If you really care about eliminating Islamic State, oust the dictator who for years has supported extremist terrorist groups like al Qaeda, Hamas and Hezbollah and who buys oil from ISIS.

Because, as Eid emphasized at the start of his piece,

Syrians—like the people in the other Arab Spring countries—didn’t rebel against the dictatorship as a way to gain entry to the US as refugees. We rebelled because we wanted to live for the first time as equal citizens in our own nation. We wanted to stay home and make Syria a better place.

What he said.

YGTBSM

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This episode is from Newark Mayor Ras Baraka (D).  He claimed last Sunday, with a straight face that

Attorney General Jeff Sessions is “targeting” mayors like himself, and intimidating them into being “fugitive slave catchers that run around and do their bidding in our cities.”

Milwaukee County, WI, Sheriff David Clarke was more polite than I:

I’ve heard a lot of stupid things [but] comparing fugitive slaves to illegal immigrants is the gold standard of stupidity[.]

I say, rather, that Baraka’s TDS has turned him into an irrational election-denier.

A Test

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In South Dakota v Dole, the Supreme Court ruled that the Federal government could not withhold already committed funds from States in amounts that could coerce the States into obeying Federal diktats, such withholdings were legal but only in amounts that would be persuasive rather than coercive (as an aside, the Court did not get around to identifying a threshold or a threshold region that would separate the coercive from the merely persuasive).

Attorney General Jeff Sessions said Monday that he was reaffirming a[n]…Obama-era policy that threatened to pull grants from jurisdictions that bar officials from communicating with federal agencies about immigration, and implied that more sweeping rules were coming. He also said the Justice Department would try to take back previously granted funding from places that don’t comply with the communications law.

Sessions’ rationale seems entirely reasonable, on one plane.

When cities and states refuse to help enforce immigration laws, our nation is less safe.  I strongly urge our nation’s states and cities and counties to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws and to rethink these policies.

There are, though, a couple of problems with this, one legal and one political (and political philosophical).  The legal problem stems from that Supreme Court ruling.  While the inability to coerce was applied in a matter involving coercion of States, the extension of the principle to jurisdictions below States is straightforward.  If the Federal government cannot coerce States, it cannot bypass the State governments to coerce lesser jurisdictions within (and generally bound by) a State government.

The political problem is this—and it’s the larger problem in my view, since Court rulings can be overruled by later Courts.  Just how much do we want, in our federated form of governance—the 10th Amendment—and the sovereignty of We the People—our Constitution’s Preamble and the 9th Amendment—the Federal government to be able to coerce the States and lesser jurisdictions?

It seems entirely legitimate to prevent coercively a State or lower jurisdiction from flouting federal law, from disobeying it.  Forcing it to actively enforce federal law seems a different matter.  Where is the threshold?

If this level of coercion is appropriate or legitimate, how about that level of coercion?  If coercing States, et al., regarding immigration questions is OK, what about coercing States, et al., regarding gun (control) rights?  Speech?  Drinking ages (that South Dakota thing again)?  And on and on?

Where would it stop?  What is Sessions’ limiting principle?  What is the Federal government’s?