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)

FLHHC

FLHHC? What the heck is Baker babbling about now, right?

Well, my friends, that’s an acronym. It stands for:

Facts,

Logic,

History,

Human nature, and the

Constitution.

Those are the five things non-conservatives – of any party – have to be able to ignore in order to advance their arguments.

In my experience, any argument on any political topic that observes those five precepts will end up, by definition, being truly “conservative” in nature. In contrast, any argument advanced by leftists to support their position on a topic will by necessity have to ignore at least one, and generally several (if not all), of those elements.

Try it out for yourself. Have some fun with it. I think you’ll find it’s a very accurate litmus test, and once you do you can use it when you’re debating your not-so-conservative friends to hopefully show them the error of their ways.

Remember: FLHHC.

 

 

©Brian Baker 2017

 

 

The UN Gun Control Treaty And You

(Dick Morris Is Nuts)

Political commentator Dick Morris (among others) has been running around all over the place bleating about how the passage of the United Nations’ Arms Trade Treaty (ATT) is going to result in the loss of the gun rights currently enjoyed by Americans under the Second Amendment to our Constitution.

He was doing it again on Sean Hannity’s radio show on Friday, 3 Aug. Here’s Morris’s thesis:

Obama signs the treaty (which has currently died in the UN because of lack of agreement, actually) after he’s re-elected. For a treaty to bind the United States it must be ratified by 2/3 of the Senate, per the Constitution. But according to Morris – who acknowledges that such ratification is virtually impossible – under the Vienna Convention on the Law of Treaties if the Senate fails to act on ratification the ATT will automatically take effect solely on the basis of Obama’s signature, and that Harry Reid will refuse to bring it to a vote if the Democrats retain control of the Senate. The treaty then becomes the “supreme law of the land”, superseding the Constitution and the Second Amendment and enabling Draconian gun laws, confiscation, the sky falling, etc.

Phew!… Follow me so far? Okay.

Morris’s thesis is so full of holes that if it were cheese it would be a premium Swiss. I don’t know where Morris comes up with this stuff. He must just “hear” something and, without doing any research at all, run wild with it. Anyway, here are the facts.

The Vienna Convention went into effect in 1980, but unfortunately for Morris’s thesis, even though this country is a signatory, the Convention has never been ratified by the Senate and so has absolutely no force and is not binding on this country, just like any other treaty that isn’t ratified. Period.

Further, there’s nothing that I’ve read in the Vienna Convention that does what Morris claims, anyway. Nothing at all about unratified presidential signatures making a treaty binding on a country whose own constitution requires treaty ratification. So his theory of an Obama signature on the ATT without Senate ratification actually meaning anything is ridiculous.

Morris also clearly doesn’t understand the Supremacy Clause of the Constitution. Let me quote it for you:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;…”

So far, so good. But here’s where the rubber meets the road:

“… and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In other words, what it’s saying is that the Constitution, federal laws, and treaties take precedence over STATE laws and constitutions. That’s all. There’s not one syllable in there about treaties having more power than the Constitution itself.

The reality is that no treaty can be used as a de facto amendment to the Constitution, as the Constitution is quite specific about how it can be amended and allows only two methods: the clearly detailed amendment process requiring 2/3 ratification by the states, or a constitutional convention. Any treaty that conflicts with the Constitution or its amendments is automatically null and void.

And in fact, in the 1957 landmark case of Reid v. Covert the Supreme Court held exactly that, stating “this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,”.

It’s time for Morris and others Chicken Littling this issue (yes, I’m looking at YOU, NRA!) to drop it. It’s ridiculous and meaningless, and lying for political gain is no less disgusting coming from the Right than it is from the Left. Frankly, I consider it even worse, because we have the facts on our side. We don’t have to resort to lying and political chicanery.

This stupid UN treaty has no more chance of affecting our national gun laws than I do of beating Shaq at basketball.

© Brian Baker 2012