Posted by: Floyd J Fernandez, J.D. | July 17, 2017

July 16, 2017–Hubris and Honor


When justice doesn’t care, where does that leave us?

HUBRIS AND HONOR:   The U.S. Constitution, in Article III, provides for the creation of the Supreme Court, “and such inferior courts as Congress shall so authorize.”  The same article mandates that the appointment of federal judges whose appointments are authorized under Article III should be authorized to serve for life, subject to impeachment.  This has been carried out since 1789, without a break, with ever increasing establishment of federal judgeships, made to meet the increased demand of a population that grew from barely 4 million in 1789 to some 330 million persons living in the USA now.

These judges (and Justices) have been appointed by Presidents of each of the major parties and approved by the U.S. Senate, composed by majorities of each of the same parties.  That provision for appointments for life have ensured that the judiciary was able to administer justice outside the immediate changes of the moment in American politics.  The individual judges certainly engaged in decision making and legal interpretation that mirrored their own philosophies and usually reflected that of the Presidents who appointed them, but frequently exceptions to that pattern occurred (Felix Frankfurter against Franklin Roosevelt, William Brennan to Eisenhower, Byron White to Kennedy, Harry Blackmun to Nixon, Anthony Kennedy to Reagan, David Souter to Bush 41), and the general body of the actions of the judiciary have served as that check upon the elected branches of government the Founding Fathers envisioned.

However, since, I would say the 1970s, the general movement has been to buck that trend, rather dramatically.   Those appointed by Democratic Presidents have generally acted in virtual lockstep with a left-of-center bias, while Republican appointees engaged in frequent bucking of their appointers’ intentions.  Beginning in the 1990s, Republicans, however, were more typically likely to hew to a right of center bent, and especially so since 2001.  The confirmation process, formerly a respectful review of the intellectual qualifications and temperament of the appointees, has become something resembling an ideological food fight.  The judicial system is now as political as the other two branches.  Long standing legal custom, legal precedent, long-understood rules of legal interpretation, statutory interpretation, jurisdictional limitations, are freely ignored when serving the fancy of the individual judge or collection of judges (or Justices).

The situation is most pronounced now, in the age of Donald Trump.  On June 26th, the U.S. Supreme Court announced that the injunction stopping the Trump administration from executing the March 6, 2017 Executive Order 16780 was for the most part lifted. The order, which stopped refugee traffic for individuals from Syria, Iran, Sudan, Yemen, and Libya, until such time as needed until the U.S. State Department and Department of Homeland Security has created a new and reliably accurate program for “vetting”, which refers to background checking those who seek visas to ensure that there are no connections between the applicant and a terrorist organization or state sponsor of terrorism, had been stopped–enjoined by four U.S. District Courts and the Ninth and Fourth U.S. Courts of Appeals.  And those who believed that President Trump’s Order was but a thinly veiled attack against Muslim immigration to the USA, borne out of a racist hatred against that religion, were confident that the U.S. Supreme Court would uphold their decision.

Their arrogant confidence was not only misplaced but grossly so.  The High Court did not simply overrule the combined orders of the courts, they obliterated them.  And it was a unanimous decision.  The Court accepted review of the decision, and decided that they would hear oral arguments for the next term, which begins, Lord willing, on October 1st.  In the meantime, most importantly, they lifted the injunction and allowed the Trump administration to proceed with the program while the case was under review.  In the case of who would be allowed into the country with non-immigrant travel visas, the High Court held that those with a significant relationship with a U.S. Citizen or permanent resident or business or educational institution would qualify.  The Court allowed the Trump administration to define the limits of that “significant relationship.”

On June 29th, the U.S. Department of Homeland Security (DHS) issued the rules governing the interpretation of those relationships, along with the other elements of implementation of EO 16780.  The rules limited the accepted relationships to spouses, children, parents, siblings, and shortly afterward, to fiancees.  Those possessing visas already issued were still allowed to enter the USA, but the limitations were affixed to pending applicants.  The rules issued by DHS were in exact accordance with normal limits for those who would be receiving visas for permanent residence, not just for immediate relatives but those who would be required to stay on a lengthy waiting period.  The categories are exactly those that are allotted those U.S. Citizens and legal residents who are petitioning on behalf of green card applicants.  The new DHS directive blocked those who were a laundry list of relatives who present law would deem not qualified: grandparents, grandchildren, in-laws, aunts, uncles and cousins.  But the immediate effect of the DHS directive was to make probably thousands more than before to be qualified to enter the country.

Immediately the conglomerate of left-wing organizations and Muslims and other activists, along with the leftist Attorney General of Hawaii, sued, ignoring the fact that they just had a U.S. Supreme Court Order allowing the program to continue!  They demanded that the District Courts that first ruled in their favor, in Washington and Hawaii, reimpose the injunction, by widening the list of excepted categories to include every single category that DHS had excluded, which meant that those included would be….everybody!  

The District Judge in Seattle, Washington demurred, citing the Supreme Court’s Order.  But District Judge Derrick H. Watson of Honolulu, Hawaii, in a decision that, in my 29 years as an attorney, has to go down as the most bizarre act of judicial hubris I have ever heard of, struck down the DHS Order, ruling that DHS was violating the letter as well as the spirit of the Supreme Court order, even though the Court had given precisely that discretion to DHS!  He superimposed every one of the forbidden categories, plus allowed refugees who were sponsored by non-government organizations (NGOs), who had themselves not been vetted by the U.S. State Department (DOS) consular personnel.  These refugees (or ISIS plants) were the very ones that President Trump had in mind in his order to put a hold on new admittances to the USA.  But that was exactly what Judge Watson had in mind to stop, which he believes he did, in an order which, in his capacity as a federal district judge dealing with pleas for injunctive relief against the federal government, had complete authority over the entire United States!

However, Judge Watson is operating under an illusion, born of his arrogance.  He believes that he can hairsplit his way to violating the terms of a Supreme Court order lifting an injunction.  He has forgotten that when a higher appellate court chooses to set aside an injunction, or stay enforcement of an injunction until appellate review is complete, that means that his Order is not in force!  He has violated, in issuing his order, a basic principle of judicial review.  For that matter, the Attorney General of Hawaii acted in defiance of a direct order of the highest Court of the land.  Anywhere else that would land that state AG into contempt of court.  In any other situation that judge would be told two things: 1) he has no jurisdictional right to issue that order, and; 2) his actions would be turned over to the Administrative Office of U.S. Courts, to be considered for disciplinary action, and possible referral to the speaker of the U.S. House for possible impeachment proceedings.

Judge Watson no longer has jurisdictional authority to rule, much less make this of nationwide breadth.  The President, through the Secretaries of DHS and DOS, has exclusive plenary authority over determining the definition of the terms of that Supreme Court Order, assuming that the spirit and letter of the Order of June 26th is agreed to.  It is.  Frankly, the truth is that there never should have been a submission to the original lawsuit against President Trump’s Executive Orders, especially not the March 6th Order, which revamped an earlier related one.

Therefore, President Trump should be issuing this statement to his administration.  “Enough is enough.  The administration will pursue the appeal before the Supreme Court, and will appeal this illegitimate order to attempt to get it set aside by regular means.  But as of now, we consider this order as lacking jurisdiction or any authority whatsoever.  I will not allow Judge Watson to strip this Supreme Court order of any ability to be applied.  His order is void, and will not be obeyed, for it has no binding authority.  I order all members of DHS and DOS and the Justice Department to implement this Executive Order, as defined by the Supreme Court’s Order, and according to the Directive of June 29th, 2017.  Any U.S. Marshal, U.S. DHS or DOS member, U.S. Justice Department member, or any other member of the Executive Branch who attempts to follow the non-Order of Judge Watson, or who fails to follow the Directive of June 29, 2017, will be summarily fired for insubordination.  As Andrew Jackson said about a similar situation. ‘Judge Watson has issued his paper order.  Let him try to enforce it.’  Oh, and Attorney General Sessions is ordered to inform the staff of Judge Watson, ‘You are all reassigned to other jobs within the U.S. Court and justice system. Let’s watch Judge Watson conduct business without a staff.”

Will it create a constitutional crisis?  Yes.  Will Trump win it?  Watch and see.  But it’s time to tell the political left, and the entrenched members of the federal government who believe that they are untouchable that they are not.  The Constitution is not a toy, it is the foundation for the Republic, and defending it is long overdue.  It is time to tell the Left that we can “resist”, too.

—Consigiliere Pacifica—


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