Subtitle: Judge James Robart vs. the Constitution.
Whenever men become sufficiently dissatisfied with what is, with the existing regime of positive law and custom, they will be found reaching out beyond it for the rational basis of what they conceive it ought to be.1
Rush Limbaugh asserted some twenty years ago, that since the drive-by media didn’t make him, they couldn’t, despite their efforts, destroy him. That concept was writ large from the moment of Donald Trump’s (DJT) nomination. EVERY major social, media, academic, and political institution, including the GOP, opposed his candidacy. As Rush said, the DNC did to Bernie what the RNC was supposed to do to Trump. It didn’t work, and DJT surfed a popular wave into the While House.
Without a break in the wild support middleclass America showers upon him, it is unlikely any other force can dislodge DJT from his crusade to Make America Great Again. Of course, it doesn’t mean the deranged Left will not try. The occasional riot and lawfare, especially lawfare, are its favorite weapons. Lawfare was on display in last week’s decision by Seattle Judge James Robart.
The Left’s jihad against all that is decent and good in America ramped up a magnitude with Robart’s decision and concurrence by a three-judge panel from the Ninth Circuit Court of Appeals. Through them, in judicial coup d’ etat, Robart blew up a fundamental, Constitutional duty of the President. If allowed to stand, the judiciary, on its own, assumes the power and responsibility for keeping dangerous characters out of our country.
Knowing that the court backed itself into a corner, Chief Judge Sidney Thomas of the Ninth Circuit instructed Trump’s DOJ team and lawyers for the State of Washington and Minnesota, to file briefs due by Thursday February 16th, stating whether they believe the motion should be considered en banc. To get a rehearing, a majority of the 29 active judges on the court need to vote in favor. What purpose can an en banc hearing serve, other than to somehow wriggle out of the mess the court created? Will a gaggle of social justice warrior judges reverse its three-judge panel and embarrass themselves to the delight of DJT and most of the country? I won’t count on it.
The applicable law is The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and the relevant provision of the INA provides: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
So, what if, in defiance of the law, the lower court decision stands? It will mean that any district judge in the nation can second guess the President’s immigration executive orders (EOs), and substitute his social justice preferences. What other sorts of EOs can possibly be safe? What should President Trump do?
Last September, I wrote in a blog post, Donald Trump: The Machiavellian Man:
Illegal actions, if not outright felonies, are sometimes necessary to establish republics. Romulus murdered his brother, created a senate, and with it, the Roman Republic. Closer to home, George Washington occasionally resorted to the confiscation of private property to feed and keep his soldiers. Machiavelli wrote, “It is truly appropriate that while the act accuses him, the result excuses him, and when the result is good, like that of Romulus, it will always excuse him, because one should reproach a man who is violent in order to ruin things, not one who is so in order to set them aright.”
Such men, Machiavellian Men, who use power to establish free institutions that outlive them, are rare.
The Ninth Circuit knows it is on the wrong side of the Constitution, and the law; its temporary restraining order constitutes a usurpation of powers entrusted to the executive branch. I hope Trump declines to submit any further briefs to the court on Thursday; let the court find a way out of the mess it made. When DJT reinstitutes the EO, the Left will howl and demand impeachment. Except, it will never happen. None of the howlers made businessman Donald Trump the President of the United States. Those who did will cheer his actions, and overwhelmingly support him and the law.
As I implicitly asked in the opening para, are we dissatisfied enough with a living and breathing Constitution to clip the wings of out of control federal courts and reestablish free government? We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
- Becker, C. L. (1922). The Declaration of Independence. New York: Random House. pge. 134.
- Machiavelli, N. (2008). Discourses on Livy, Translated by Julia Conaway Bondanella and Peter Bondanella. Oxford: Oxford University Press.