On March 6, 2017 President Trump signed EO 13780: “PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES.”
This order was immediately tied up in litigation and as I recently explained activist judges completely ignored the Constitution and laws and unlawfully blocked the implementation of the order. So the Administration issued a new more narrow order thus avoiding the confusing implementation of the January order and attempted to protect national security without getting blocked again by lawless judges.
It didn’t work. On Friday March 10th 2017 U.S. District Judge William Conley substituted his judgment for that of the Commander in Chief. Judge Conley, a 2009 Obama appointee, ruled (without a hearing) that the new order could not be enforced against a Syrian family claiming refugee status looking to move to Wisconsin.
The federal judiciary has seemingly come unhinged from reality and is behaving like it is ignoring the separation of powers.
Here’s a primer on why Judge Conley (and other activist judges) is ignoring his oath of office, in my view, and operating well outside the judiciary’s bounds.
Article 1, section 8, clause 4 gives plenary (absolute and not subject to review) power over naturalization to Congress. Congress has delegated that power broadly to the President. (Obama used it 19 times over 8 years) Immigration laws are also passed by Congress. 8 U.SC. Section 1182(f), states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”
Further, article 2, section 3 says the President “shall take care that the laws be faithfully executed.” Section 1182(f) is a law.
Here’s the problem: Federal Judges Serve For life.
Federal Judges can only be removed from office via impeachment as set out in Article 2 – since they are considered “civil officers” on the United States. That means that once they get in office, the have to commit a “high crime or misdemeanor.” Incorrect legal rulings hardly qualify under that standard and these judges know it. That means they basically can do whatever they want.
Here’s the solution: Do away with life tenure and provide for congressional oversight.
It won’t be easy and would require a constitutional amendment to do away with life tenure. Article 3 section 1 grants life tenure “during good behavior.” There is precedent for removing a judge for something less than a “high crime or misdemeanor” and using lack of “good behavior” instead. Judge Robert Archibald was removed from office in 1913 for improper business dealings which were deemed less than “good behavior.” Even so “bad behavior” is a nebulous term and would require considerable political will to impeach a judge on that basis.
There is only one Federal Court created by the Constitution and that is the Supreme Court. Article 3 section 1 grants Congress the sole authority to create lower federal courts. It stands to reason that Congress can do away with lower federal courts by statute or simply not provide for additional judgeships. Federal Magistrate Judges – who are not appointed for life – could be used more to decrease the workloads of Article 3 judges. It also stands to reason that Congress might more specifically define what “good behavior” means for lower federal judges. After all – what Congress giveth – Congress can taketh away.
I believe Article 3 section 1 can be a constitutional basis for some degree of congressional oversight. Even if I am wrong, something has to change. Courts must objectively follow the Constitution and laws even if it means a judge’s decision isn’t popular or politically correct and even if the judge has to ignore his or her own political beliefs. When judges feel free to ignore their oath of office because they know there won’t be any consequences the rule of law means nothing – and when that happens, the courts and the courts alone can run the country. Congress and the Presidency would be meaningless and that my friends is anarchy.