by Andrew Schlafly, Esquire
Affiliate, Phyllis Schlafly Eagles
The federal judiciary is filled to the brim with liberal activists at this point. Roughly 70% of all federal judges were appointed by Presidents Bill Clinton or Barack Obama. Among the remaining judges appointed by Republican presidents, many of them are actually quite liberal due to an inadequate vetting process or staying too long on the bench. The advisors to President Trump should realize that whatever meaningful actions he takes will be challenged and probably blocked in the courts, unless a preemptive legal strategy is adopted.
On Friday, February 3, Team Trump learned about judicial activism the hard way when a single federal judge sitting more than 2,000 miles away in Seattle, Washington, issued a nationwide temporary restraining order (TRO) that summarily blocked Trump’s sensible limitations on immigration from seven nations associated with terrorism. A week earlier Trump had protected our Nation by issuing an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This executive order had temporarily prevented refugees and foreigners from entering the United States from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Earlier on February 3 a similar attempt by opponents of Trump had failed to obtain a sweeping TRO against him in federal court in Boston, where a judge ruled that Trump’s executive order did not discriminate against Muslims. But liberal activists do not limit themselves to one lawsuit. Instead, they had filed multiple lawsuits in multiple jurisdictions to maximize their chances of obtaining the ruling they want. The result was that they shut down the President of the United States as he attempted to protect our Nation against potential terrorists.
Unfortunately, the immediate appeal by the Trump Administration had little chance of success, because the venue was located in the U.S. Court of Appeals for the Ninth Circuit, one of the most liberal federal appellate courts in our entire country. Minnesota was a co-plaintiff along with Washington, and this lawsuit could have been brought in Minnesota rather than the State of Washington, but that would have resulted in the appeal going to the more conservative Eighth Circuit rather than the ultra-liberal Ninth Circuit. Leftists know how to forum-shop in the court system to obtain the result they seek.
The Department of Homeland Security, which is under the direction of President Trump now, announced that it was immediately complying with the district judge’s order and the DHS suspended all of its actions implementing President Trump’ executive order. Travel by foreigners from the nations associated with terrorism resumed, and the State Department reinstated visas for foreigners from those countries.
President Trump was outraged by the judge’s sweeping order against him as President. “When a country is no longer able to say who can, and who cannot, come in & out, especially for reasons of safety &.security – big trouble!” Trump tweeted at 7:59am the following morning.
Big trouble indeed. Trump’s hands are now tied by a judiciary that has far outgrown its authority as envisioned by the Founders. Alexander Hamilton, writing in Federalist No. 78, assured New Yorkers skeptical about the Constitution that the federal judiciary would be the “least dangerous” branch. Yet it has grown unchecked for two centuries and now it brazenly tells the newly elected President what he cannot do, which in this case prevents the President from protecting our Nation.
The “checks and balances” of our Constitution were intended to flow both ways, and not merely consist of federal courts issuing orders to paralyze the executive and legislative branches. It is time for the President to initiate some “checks and balances” of his own, with or without the consent of Congress, by instructing the Department of Justice not to enforce any overreaching orders by courts.
As President Andrew Jackson reportedly said when faced with a similar act of overstepping by a federal court, “John Marshall has made his decision, now let him enforce it.” Courts cannot enforce their own orders, and they rely entirely on the executive branch now under the control of President Trump for enforcement. The sooner Trump realizes that, the better.
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