Our lawless judiciary
July 25, 2018
The judicial system in the United States is intended, at least by the Constitution, to serve as a referee in legal disputes. The system is intended to interpret the Constitution and the laws passed by the legislative branch as they apply to the Constitution. It was never intended to be a self-serving entity that established new laws based on a judge's beliefs.
Yet that is what the judiciary has become. An ever more overbearing court system seems bent on imposing new laws and restrictions on the freedoms of American citizens. Examples are numerous.
One example is the establishment of border security checkpoints inland of our borders by as much as 100 miles. At these checkpoints you are asked your citizenship even though you have crossed no border. Your electronics are subject to warrantless search without cause.
Worse, at any point within the 100-mile limit from the border you are subject to the same restrictions. So if you live in San Diego or El Paso, for example, any and all of your electronics may be subject to warrantless search. This is decision by the Supreme Court basically throws the Fourth Amendment under the bus.
In April, a federal judge in Washington state ruled that Trump could not end funds for a Planned Parenthood program created under former President Obama for the prevention of teen pregnancy. The program was slated to end in 2020, but the Trump administration argued that it was ineffective and decided to end funding two years early. The judge ruled that "The court determines that the public interest weighs in favor of plaintiffs (Planned Parenthood), as it would prevent harm to the community and prevent loss of data regarding the effectiveness of teen pregnancy prevention." I don't find anywhere in the Constitution states that a judge has the power to determine budget issues.
Here is a more convoluted example. Three federal courts have now ruled that Trump cannot change an executive order signed by his predecessor, which threatens to upset the constitutional separation of powers. The Trump administration could not end the Deferred Action for Childhood Arrivals program that was instituted via executive fiat by his predecessor. Astonishingly, one judge ruled that not only could the Trump administration not deport current DACA recipients, but that they had to continue taking new applicants for the DACA program.
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But it's not the job of unelected federal judges, who obviously allowed their clear distaste for Trump's policies, to cloud their judgment and issue rulings that threaten bedrock principles of our constitutional republic.
Here is how the DACA program avoided a court challenge in the first place. When DHS announced the policy in June 2012 it specifically framed the program as an exercise of "prosecutorial discretion" in order to avoid a legal challenge on the grounds that the Obama administration was impermissibly usurping Congress' policymaking authority. After all, the Constitution specifically grants to Congress the right to establish a "uniform Rule of Naturalization."
The government's argument was simply that the executive branch has some inherent leeway to determine its own priorities in terms of who will be prosecuted and who will not. DACA was never supposed to be a policy decision, it was supposed to be a decision about proper allocation of resources, which is probably what saved the program from being declared unconstitutional.
Logically, if the DOJ has the discretion not to enforce the law with respect to a class of offenders, it must also have the discretion to resume enforcing the law with respect to that same class of offenders. The Supreme Court has declined to hear this issue. Perhaps after Brett Kavanaugh is appointed they will rethink this.
But remember, the judiciary also includes by extension the Department of Justice. We all know something about the Mueller investigation and the refusal of the DOJ to turn over requested information to Congress, including the authorization of the Mueller investigation and its scope. We also know that Attorney General Jeff Sessions recused himself from this investigation, leaving Obama-era Deputy Attorney General Rod Rosenstein to handle it. As a result, the investigation has become purely political. This includes the suspiciously timed indictment of 12 Russian "operatives" for hacking the DNC. It also includes senior FBI officials thumbing their nose at Congress.
It is apparent to me that the DOJ, working with Mueller, hopes to continue obstructing Congress in the hope that there will be a Democrat majority after this election. Let's do our utmost to not let that happen.
Tom Riggins' column appears every other Wednesday. He may be reached at firstname.lastname@example.org.