Judicial Insanity

In what is quickly and disgustingly becoming a new norm, yet another low-level federal judge has issued a national injunction against one of Trump’s policies. In this case I’m referring to U.S. District Judge Jon S. Tigar’s action barring Trump’s plan to require those seeking asylum to do so at a regular port of entry.

Per the Constitution, the Supreme Court (SCOTUS) is a branch of the government that is CO-EQUAL with the President, not superior. Certainly, no inferior court, such as one at the District level, has status or authority equal to SCOTUS. Therefore I see no constitutional reason why the President, in this case Trump, is bound by any holding of any Court other than SCOTUS.

Secondly, this phenomenon of District courts issuing rulings with national effect is completely new. The only court with national jurisdiction is SCOTUS. Lower courts have jurisdiction within defined geographical boundaries, and their rulings only apply WITHIN those jurisdictional boundaries. Each District covers certain defined areas and each Circuit is comprised of several Districts. The Circuit assures uniformity of the law within its own boundaries by ruling on the conformity and propriety of rulings of the Districts within its jurisdiction.

From there one of SCOTUS’s main functions is to settle conflicts between the rulings of the various Circuits in order to assure uniformity of the application of law throughout the nation.

With that in mind, barring a SCOTUS ruling, I maintain that Trump – or any President – can tell any lower court judge to stick it where the sun never shines.

In fact, I have to stress that even SCOTUS is only co-equal to the President, not superior. A President doesn’t even have to obey a SCOTUS ruling. As a matter of further fact, we have an example of one President who refused to do so.

In the case of Worcester v. Georgia SCOTUS handed down a ruling that Andrew Jackson chose to completely ignore. Though this resulted in the Trail of Tears tragedy, it did illustrate the principle that SCOTUS doesn’t have authority superior to the President.

The bottom line is that Trump, or any President, can tell a court to pound sand. Of course, there could be political consequences if that court is SCOTUS. It could end up being a “constitutional crisis”. It would certainly be a constitutional conflict. But it may be one worth having, as the courts seem to have lost all sense of their rightful place in the scheme of things.

©Brian Baker 2018

(Also published on 27 November 2018 in my local newspaper, The Signal)

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21 comments on “Judicial Insanity

  1. MJP7200 says:

    The constant struggle between the authorities of our federal system. I would like to see the judiciary challenged more, personally. I think attorneys in general should be challenged more. There is this god-complex in too many and judges are attorneys given a lot of power.

    But more than anything, we need to stop litigating so much, and lawyers need to drop their political biases.

    That’s beside your point, though, concerning the CA ruling. The ruling should be limited to its jurisdiction, but it does become instructive for other jurisdictions, which are still free to rule differently. But because of the story that a JUDGE (god-like, of course) rules against Trump it is going to get attention and it is going to not be favorable to the pres.

    • BrianR says:

      All true, of course, but I view this problem as being far more damaging to our fundamentals of governance than being mere political posturing.

      Of course, that’s the basic problem with leftism: they’re intent on destroying our fundamental system and replacing it with their own form of fascism.

      • MJP7200 says:

        I agree. But the political posturing becomes a useful tool to that aim.

        Maybe some of it is naivete on the part of the judges, who think they are doing good, but the result is the same.

      • BrianR says:

        “Naivete”?

        Are you kidding me?

        There’s nothing “naïve” about this. It’s a concerted and coordinated effort to subvert and pervert our judicial system into becoming a tool of the radical left. Reminds me of Hitler’s use of the German judges.

      • MJP7200 says:

        I am willing to give some benefit of the doubt as to motive. I also do not think there is a smoke filled room where these people coordinate strategy.

      • BrianR says:

        Why?

        People have to earn that. They haven’t. In fact, they have a very LONG history of doing exactly the opposite.

        It’s very easy to scoff at “conspiracies”, a tactic the left uses regularly. I’m not talking about conspiracies or “smoke-filled rooms”. I’m talking about a cultural and political agenda. Do you deny the existence of agendas?

        Didn’t Obozo even brag about being elected to “fundamentally change” the country?

        Those a-holes are flat-out TELLING you what they plan to do. Take their own word for it.

      • MJP7200 says:

        Having said that, I think part of the early strategy WAS to get things rolling this direction. Now there are many unwitting participants.

      • BrianR says:

        “Unwitting”????

        Once again you’re giving them unearned credit for integrity. That’s a fatal mistake.

      • MJP7200 says:

        Yes, I believe there are many many useful idiots out there, even well educated idiots. Even still, the road to hell is paved with good intentions.

        And that is what the early 60’s folk (including Obama, friends with the Winter Underground) set in motion.

  2. CW says:

    Interesting take on the situation, Brian.

    Maybe it’s the most recent two terms of Barack Hussein Obama still leaving a bad taste in my mouth, but I am disinclined to agree that the POTUS is not bound by the decisions of the SCOTUS. I understand that they are co-equal branches of the government, but each branch is supposed to play a specific role according to the Constitution. It just seems counter-intuitive that the POTUS, who takes a sworn oath to uphold the laws of the Constitution, is not bound by those laws himself. I am not familiar with the intricacies of the Andrew Jackson example, so I can’t say whether he was able to defy the will of the SCOTUS because they conceded that the POTUS was not bound by their decisions or because the court saw no way to enforce their decision given that they don’t control the military. Whichever the case is would determine how well that example applies. You may be correct but if that’s the case then I don’t understand why presidents are so hyper-sensitive to the make-up of the court. Unless I’m missing something (that’s always a strong possibility, I’m sad to say), if the POTUS is not bound by the SCOTUS rulings then they shouldn’t be overly invested in the make-up of the court.

    With respect to the lower federal courts, they have jurisdiction over “Cases in which the United States is a party;” and “Cases involving violations of the U.S. Constitution or federal laws (under federal-question jurisdiction);” The citizens of America must have a means by which they can challenge the overreach of the federal government, and this is that prescribed means; however, something is clearly amiss when the Left is so easily able to weaponize the courts and use them as a means not to uphold the law but to continually thwart the legal actions of a duly elected administration.

    The whole business makes me feel as though I’m caught in a circular argument with no good solution, as it seems the system that is supposed to be upholding the laws for our protection and to carry out our will is all too often the same system we need to be protected FROM.

    • BrianR says:

      CW, you actually seem to have missed the crux of my column, which is that no LESSER court than SCOTUS has the power or authority to dictate national policy, particularly as to presidential actions. That goes to the very heart of the separation of powers.

      In the case of Jackson and SCOTUS — and Marshall was Chief Justice at the time — he basically told them to go pound sand. He utterly disregarded their ruling. In fact, Lincoln did the same thing: defied court rulings and suspended habeas corpus during the Civil War.

      The bottom line here is that our republic can only survive if ALL the parties involved operate in good faith. The moment you have any of the distinct three branches of government decide to simply defy the intent of the Constitution, and try to usurp power and authority, we become a banana republic, and the party’s over.

      One more reason why I’ve been writing for years that we’re in the midst of a civil war in this country every bit as profound as the one that took place in the 1860s.

      • CW says:

        Sorry I’m so slow in responding but I left town soon after commenting a few days ago and just got back last night.

        This has been a very intriguing and thought-provoking post for me because I don’t understand how it’s come to pass that thus far (apparently), no one has challenged the overreach of these lower courts that issue nation-wide injunctions. The SCOTUS seems to have never weighed in on the matter, given that it just keeps happening. After letting it roll around my brain for a few days I think you’re right, but I am struggling with it.

        With respect to our civil war did you happen to read the October issue of Hilldsale College’s Imprimis which featured a great speech by Charles Kesler on that subject? He refers to our current situation as a “cold civil war” (vs. a physical or “hot” civil war), which I thought was a very astute way of framing it. It’s good reading, IMHO.

      • BrianR says:

        I have a copy of that issue sitting right here, but haven’t gotten around to reading it yet. I’m looking forward to it.

        I do have to say, when I saw the headline, I thought: “Well, it looks like others are finally, finally starting to get it”.

  3. The Crawfish says:

    Unfortunately, Judge Tigar was 100% correct in his ruling because of a law passed by a Democrat-controlled Congress and signed by Billy Jeff in 1994.

    https://www.law.cornell.edu/uscode/text/8/1158

    • BrianR says:

      Whether Tigar’s interpretation of the law is correct or not isn’t the issue. He had no jurisdiction over the case. It wasn’t within his venue. He had no authority to even accept the case. That’s the point of my column. His jurisdiction — venue — stops at the physical boundaries of his district. It’s not nationwide.

      Cases involving the application or enforcement of federal laws are properly filed in the Circuit Court for the District of Columbia, the reason being DC is the physical location of the various federal bureaucracies. The administration of federal power resides within the boundaries of the District of Columbia, and the only court, other than SCOTUS, that has jurisdiction — venue — on such cases is that Circuit Court.

  4. Grey Neely says:

    I agree Brian. We are in the middle of a “Cold War” between the Left and the Right. And this war can go “hot” just about anytime. I expect the new Democrat controlled US House of Representatives to start pushing with all types of gun control bills and investigations into the Republicans and Trump. These gun control bills and investigations will be helped by every Leftist federal judge that the Democrats can get to support them, whether they have jurisdiction or not.

    I hope and pray that I am wrong; but I can see this “Cold War” going “hot” in about two years (i.e., the year 2020).

    • BrianR says:

      Grey, you and I have discussed this before. I wish I had some convincing example of why I think you’re wrong… but I don’t.

  5. libertarian1970 says:

    Hello, found this blog by accident (was looking for info about Hawaii, lol), have read a few of the articles, the Political Junky in me was intrigued.

    Spot-on article & comments here.

    We live in times where the “mask” is truly coming off…as my name indicates, I’m a “right” libertarian (sad that I have to distinguish it, so, these days) who was born in 1970 (arguably the height of American Power)…my entire life has been lived during the decline of America, but boy is it accelerating now…someone from a small (thanks Roe V. Wade!), forgotten generation-X, squished in-between the bigger, more conservative Baby Boomer & bigger, more liberal Millenial generations.

    I haven’t been too pleased w/the conservative BB’s who have had tremendous electoral success since Nixon 1968, but have effected no real change to the Progressive status-quo & have, imo, given rise to the Millenial Marxists who seem to be ascending…however, the BB’s at least appeared quasi-sane compared to the current batch of numbskulls.

    Trump, God help us, may be our version of Lincoln…someone who will reside over either an American renaissance or the end of America as we know it.

  6. libertarian1970 says:

    I found this interesting:

    Trump hangs portrait of Andrew Jackson in Oval Office

    https://thehill.com/homenews/administration/316115-trump-hangs-portrait-of-andrew-jackson-in-oval-office

    “The Supreme Court has made its decision, now let them enforce it.”

    –Andrew Jackson

  7. An eye-opening post, and very well-written and reasoned.

    Judicial activism has gotten out of control. I’m still waiting for a judge to be fired or suspended for acting beyond their authority.

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