In the first 100 days of the Trump administration second term, there have been an unprecedentedly large number of nationwide injunctions (25) placed on actions by the Trump administration by federal district court judges. These injunctions have been filed to delay or defeat the policy goals of the President in the U.S. courts. The number of injunctions implemented is far higher than it was for other recent U.S. presidents. Federal judges have blocked the administration’s attempt to deport illegal aliens and terror supporters, remove funding from government programs, and lay off federal workers.
None of us should be shocked by any of this. When the Democrats state that Donald Trump is a Hitleresque authoritarian and promote this view incessantly to those who continue to watch the MSM for their information, including many federal court judges, this is the inevitable result. The federal district court judges are behaving poorly because, contrary to the CW, judges are not special, unbiased arbitrators of the law, but just normal people, who can become biased just like anyone else. These judges don’t like Donald Trump because they are Democrat appointees, along with a few Republican ones who have gone “Washington” – i.e., they watch the MSM, have liberal friends, and attend elite liberal events – and they are now convinced that Donald Trump is acting outside his powers as president, and working to obstruct or defeat him.
Despite, you know, the facts of each of these presidential actions.
It may interest you to know that this was exactly the danger that President Thomas Jefferson foresaw when the Supreme Court chose to seize this power to judge the constitutionality of laws/actions by the president in Marbury v. Madison. He wrote:
The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches. —Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
And:
But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force. —Thomas Jefferson to William Johnson, 1823. ME 15:451
And:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. —Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
Jefferson was not the only president with this view. It is probable that President James Madison, “The Father of the Constitution,” believed this as well; Madison was acting as Jefferson’s agent in the Marbury case. President Andrew Jackson, whom many historians have compared to Donald Trump, also believed this, and once refused to enforce a Supreme Court decision that he found to be erroneous.
I learned the truth about bias and judges – about Supreme Court justices – when I worked in the U.S. Senate. During that time, I covered the hot issues of Islamist detainees from the wars in Iraq and Afghanistan, habeas rights, and military commissions.
There were several very on-point precedential judicial cases in these areas - the most pertinent one being Ex parte Quirin. In that case, during World War II, the Supreme Court had upheld the jurisdiction of a United States military tribunal over the trial of eight German saboteurs, in the United States. These saboteurs included two American citizens. Six of the eight were executed, including an American; two of them had their sentence suspended because of their decisions to turn themselves in.
Nevertheless, during the Bush administration, in Hamdi v. Rumsfeld, and later in Hamdan v. Rumsfeld, the Supreme Court majority, which (then) was barely Republican but totally dependent on four Republican-appointed justices (i.e., Sandra Day O’Connor, Anthony Kennedy, John Paul Stevens, and David Souter), who often flipped on controversial issues (e.g., on issues where the MSM strongly opposed the conservative position), just distinguished the earlier Quirin case (essentially overruled it without officially doing so). This outlawed the military tribunals that the Bush administration had set up – which had far better protections than the Roosevelt administration’s – and demanded that American citizens, despite being caught on the battlefield fighting against the U.S. and not being in the U.S. – should have access to American courts and their protections.
These Justices did this for one - and only one - reason: BDS (Bush Derangement Syndrome). President Bush was a Republican, and the liberal elite hated him with a passion. Everything he did was Hitler-like and authoritarian. And the MSM blanketed the television with this message, which was picked up by the “weak sisters” among the GOP appointees on the Supreme Court.
Just as Thomas Jefferson feared, these esteemed justices were susceptible to normal human faults. So, as a result, in these two controversial and important cases, the Bush-haters were able to stick it to him. And when one of these decisions was announced at a fancy law conference I was at, almost the entire room – excepting me, of course – stood up to applaud the downfall of Chimpy McHitlerburton (i.e. George W. Bush) and his desire to implement a dictatorship, some of them even going so far to say this aloud.
Does any of this sound familiar? Are you paying attention?
P.S.: Many of these federal judges who have issued injunctions are themselves flawed, based on procedure. Here is just one example, described by my former Senate Judiciary Committee colleague, Dan Huff.
SJC RULES (if that’s ok with you)!
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