Naked Judicial Activism and Overreach

On March 15th, for the second time, a federal district judge – this time in Hawaii – issued an injunction against President Trump’s executive order restricting immigration from several specific countries. U.S. District Judge Derrick Watson, in the case of State of Hawai’I and Ismail Elshikh v. Donald J. Trump, had the temerity to order that “Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.” In other words, this judge in the district of Hawaii issued a restraining order that supposedly has nationwide enforceability.

The only problem is, he has no authority to do so.

Article III of the US Constitution establishes the Judiciary, and defines its powers, authority and limitations. Section 2, Paragraph 2 clearly states that: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

What that means is that, barring a constitutional amendment, any case in which a state is a party must be heard by the Supreme Court, the only court with the authority and jurisdiction to hear such cases. Since one of the plaintiffs in the case at issue is the state of Hawaii, District Judge Watson had no jurisdiction, nor authority, to even hear the case. The same holds true for the several other District Courts that have heard and/or issued rulings on cases of like kind.

That paragraph goes on to state that: “In all the other Cases before mentioned (in Paragraph 1), the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Under that authority Congress went on to enact the Judiciary Acts of 1789, 1801, 1865, and 1925. These various Acts established the judicial system we have today, consisting of nine Supreme Court Justices, the various Circuit Courts of Appeal, the various District Courts, and their various jurisdictions, responsibilities and powers.

Part of that structuring defined court power to establish that the only court with national jurisdiction is the Supreme Court. For example, any ruling handed down by the Ninth Circuit Court only has enforcement power within the geographical boundaries of that Circuit, which are the nine Western states, including California. That’s why it’s not unusual to see different Circuits hand down conflicting rulings on the same issue, with the Supreme Court then stepping in to address and resolve the conflict by issuing a determinate ruling with national authority, thereby assuring a consistent application and rule of law across the nation.

The geographical jurisdictional and enforcement power of a District court is even smaller, as it’s a subset of the Circuit Court. So, just as the authority of a ruling by a Circuit Court is constrained by its geographical boundaries, so is the authority of a District Court’s ruling constrained to its own.

From this it’s easy to see that, in addition to hearing a case over which he had no jurisdiction, District Judge Watson issued a ruling and restraining order that he unlawfully attempts to apply outside the geographical borders of his own limited authority.

This is beyond unacceptable; it’s a repugnant attempt to usurp and arrogate power.

Were I Trump I’d instruct the State Department and other involved agencies to ignore these illegal rulings by this, and other, District judges who have far overstepped their legal authority. If these tin pot local judges want to set up a confrontation between the Judiciary and the Executive branches, then let’s bring it on.

Thomas Jefferson expressed his concern that the federal judiciary was potentially “the most dangerous branch” of government because, once seated, judges were installed for life and not accountable to the electorate. Unfortunately, particularly in recent decades, we’ve been seeing those fears realized as arrogant activist judges have taken to regularly exceeding their authority in order to facilitate their own political agendas, as facilitated by the cynical practice of “judge shopping” by litigants eager to promote and achieve their own political ends, goals they generally can’t achieve through the regular political process.

This must come to a halt, even if that has to be done through a constitutional confrontation.




©Brian Baker 2017

(Also published today in my local newspaper, The Signal)

10 comments on “Naked Judicial Activism and Overreach

  1. Hardnox says:

    Spot on post bro.

    This is nothing more than kabuki theater concocted to feed the lemmings and to keep the coffers full with donations. The left is throwing mud at the wall hoping that some of it may stick.

    I forget which Founder advised us (paraphrasing) that it was “our duty to ignore illegal and unconstitutional laws”.

    Trump and the rest of his admin should simply flip off the courts and move on citing the above. Getting mired in mudslinging and court appeals… well, is stupid and irrelevant. I know Trump wants to play nice and all his nominees aren’t approved yet, but….

    The nutless GOP needs to stand up as well but I’m not holding my breath. They are as you coined it the “Perpetually Stupid Party”. Of course, and behind the scenes, the UniParty doesn’t want Trump to succeed with his agendas, and that much is abundantly clear. There are trillions at stake here. Can’t have that feeding trough emptied.

    Meanwhile, Trump is cutting and slashing and I’m loving it. RyanCare, not so much. We’ll see…

  2. Kathy says:

    Even if they took it to the Supremes, I think the end result would be same, so yeah, Trump should do what O did numerous times – ignore it and carry on. Unlike O, at least he’d be within the law.

    Here’s an aside to the story and some background on plaintiff Ismail Elshikh who runs a huge mosque in Hawaii and has ties to the Muslim Brotherhood.

    Declaring them a terrorist organization and running them out of the US should be high on Trump’s priority list.

    Good work, Brian.

    • BrianR says:

      Thanks, Kathy. And thanks for that great link. What a scumbag. Two, actually, when you include the judge.

      Trump should just do what Jackson did when John Marshall’s SCOTUS ruled against him: basically flip him off (and that was the actual SCOTUS, not some rinky-dink District judge).

      Jackson: “Mr. Marshall has his decision. Now let him enforce it!”

      Sadly, Jackson did it in a bad cause: Cherokee relocation, leading to the Trail of Tears. But that’s not the case this time.

  3. AfterShock says:

    The Trump administration should never have responded to the first judge’s order. They should have ignored it as well as this order from Judge Watson, asserting in a public statement that the plaintiff lacked standing to challenge a Presidential action executed under his Constitutional delegation of authority, buttressed by statute and supported by Sup. Ct. precedent. And of course the Ct had no jurisdiction to hear the complaint as you point out. The ball would then be exclusively in their (no pun intended) Ct. The left, orchestrated by Obama, are attempting an open judicial coup, and at this point not even the Sup. Ct. can be trusted as far as I’m concerned. That said, the Trump administration chose to traverse the original complaint which in effect provided the District Ct’s the opportunity to create a jurisdiction that heretofore didn’t exist. That fact alone sets a bad precedent.

  4. CW says:

    Outstanding post, Brian. Great comments too.

    This is why principle-based conservatism matters. The Left has gotten this far by continually changing the rules of the game to suit themselves with help from Republicans who abandon their roots in the belief that they can beat Democrats playing by the new rules. That’s very foolish, particularly since the Left’s new version of the game becomes the new standard as soon as Republicans go along with it. Both you and AfterShock are right with respect to the way Trump should have handled this abuse of power by radical judges, but because Trump’s first inclination was to play along with their game he unwittingly gave them the presumption of acting legitimately. Now the sheep will see HIM as the lawless one if he does what he should have done to begin with.

    Republicans never learn.

    • BrianR says:

      Thanks, CW. I think you nailed it.

      “Republicans never learn.”… So sadly true, which is why I coined the acronym PSP for the Perpetually Stupid Party.

  5. garnet92 says:

    I apologize that I’m late to the party, but I’ll offer my .02 cents worth anyway.

    I don’t fault Trump for taking the wrong path in his apparent acceptance of the two court’s authority – what the hell does he know? The problem is with his advisor(s) who advised him to support appeals instead of ignoring the rulings – you’d like to think that they would have advised differently, but they didn’t – why, I can’t imagine, unless perhaps the advisor happened to be one of the Obama sycophants acting as a mole.

    • BrianR says:

      Never late, Garnet, as there’s no “use by” date on this stuff, and it hopefully doesn’t go stale.

      I agree that the actual fault lies with his legal experts, and they truly dropped the ball. But for the sake of brevity and clarity I didn’t want to get into parsing all that. Simpler just to speak of Trump himself. After all, the buck does stop at his desk.

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