As of Wednesday, December 5, 2018
There is a constitutional crisis in this country. One branch of government is undermining the rule of law.
The culprit isn’t President Trump or Congress; it’s the courts. Nationwide, judges are making public policy, rather than adjudicating it. This power grab is apparent in immigration cases, where judges have ignored the Constitution and issued rulings based on personal beliefs.
This arrogation of power should worry liberals, conservatives, and moderates alike.
Consider recent rulings that block President Trump from ending President Obama’s Deferred Action for Childhood Arrivals program. DACA offers work permits and temporary legal status to 690,000 illegal immigrants who came to the United States as minors.
The creation of DACA by the executive branch contravenes constitutional separation of powers and violates Congressional statutes. Given the chance to pass legislation, Democratic supermajorities in Congress considered, and then rejected an amnesty for young illegal aliens in 2010.
For most of his first term, President Obama acknowledged he couldn’t “just bypass Congress and change the law myself... That’s not how a democracy works.”
But in 2012, President Obama changed his mind. He argued that unilateral action was the “right thing to do” and he exempted certain illegal aliens from immigration law and began illegally granting them work permits.
President Trump campaigned against DACA and last fall he announced his decision to end the program. Unilateral executive action can be reversed, especially when the President finds his predecessor’s actions to be unconstitutional.
But some activist judges felt differently.
William Alsup, a district court judge in San Francisco, issued a nationwide injunction that prevented the administration from ending DACA. His ruling asserted “that the public interest will be served by DACA’s continuation.”
Nicholas Garaufis, a district court judge in Brooklyn, issued his own politically-charged injunction. The judge condemned the DACA roll-back as “heartless.”
The judges nullified the president’s order not because it was unlawful -- but because they personally disagreed with it.
Judges also relied on emotion to impede President Trump’s travel ban, which prohibited visitors and immigrants from a handful of majority-Muslim nations, Venezuela, and North Korea.
The Constitution gives the president latitude to deny foreigners entrance into the country. In 1950, the Supreme Court noted that “The exclusion of aliens is a fundamental act of sovereignty... inherent in the executive power.”
Five previous presidents barred certain foreigners from entering the country. Even President Obama temporarily prevented Iraqi refugees from entering in 2011.
But judges repeatedly slapped injunctions on the travel ban. This February, the Fourth Circuit Court claimed that the president’s supposed animus towards Muslims invalidates his authority.
The Supreme Court overturned the lower courts’ rulings and narrowly upheld the ban with a 5-4 decision.
The Constitution prevailed — this time.
Judicial activism should worry Americans of all political affiliations. Even liberals.
By cheering on judicial overreach now, they risk looking like hypocrites later if extremely conservative judges appointed by President Trump strike down reproductive rights, safety net programs, and legal protections for disadvantaged groups based on personal beliefs.
Courts are supposed to decide whether Congress and the president’s policies are constitutional -- not whether they’re wise or compassionate. The devolution from judicial review to judicial supremacy bodes ill for our republic.
Jeff Dunetz is publisher of The Lid (LidBlog.com), a political columnist at The Jewish Star, and host of the weekly Lid Radio.