Quote:
Originally Posted by JohnR
We are mostly in alignment. As for the 5 judges that can interpret, that is their wheelhouse.
|
Problem is that they have expanded their wheelhouse. Originally, the power to interpret was confined to application of the Constitution. Now the scope of their wheelhouse doesn't seem to have any bounds.
Just as one tiny example of the many SCOTUS decisions which expanded the power of SCOTUS, there is the current injunction against Trump's travel ban.
The Fourth Circuit has ruled that his foreign travel ban "appears" to discriminate based on religion and that the administration’s argument that the order was needed to protect national security was a “pretext” offered in “bad faith.”
But shouldn't the ruling be whether or not the President has the power to do so, not whether he is pretending something he doesn't mean? Where does this judicial power to interpret someone's mind rather than interpreting law come from? And where does this judicial power to interpret what a law "appears" to do rather than ruling on what it specifically states?
The judges in the majority said they did not buy Trump's assertion that the ban was needed because of the threat of terrorists arriving from the specified countries. They did not "believe" that was the true purpose behind the executive order. Chief Judge Roger L. Gregory said that Trump’s order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination”. And he said the order conflicts with the 1st Amendment’s ban on “laws respecting an establishment of religion.”
Again, where does this power come from to rule by personal opinion, personal belief, rather than by interpreting law? Was Judge Gregory's allusion to a context dripping with religious intolerance, animus and discrimination any less vague than his characterization of the words re national security in the ban? Aren't Gregory's words "dripping" with intolerance? Are there actually any words in the ban which drip of "intolerance, animus and discrimination"?
Well, no, such words are not in the ban. But the "context" and words to which Judge Gregory refers occur elsewhere. Those words happened well before the Executive Order was created. They happened during his campaign for President and some after he was elected. He said various things about Muslims. Gregory said those “statements, taken together, provide direct, specific evidence of what motivated” the travel order . . . "President Trump’s desire to exclude Muslims from the United States.”
So, apparently, it is not the EO that is questionable. It is Trump's motivation for it. If the same order had been drafted by Obama or Hillary the EO would be OK. They didn't say the same words about Muslims that Trump did, so they could have drafted exactly the same order.
And, contrary to what Judge Gregory says, the EO does not conflict with the 1st Amendment’s ban on “laws respecting an establishment of religion.” It does not establish a religion. Nor does it prohibit the free exercise of Islam, neither in this country nor elsewhere. Somehow, the Judge "interprets" what is not actually in the EO, nor does the EO even imply such an interpretation.
Furthermore, the EO doesn't, as Judge Gregory "interprets," exclude Muslims from the United States. The vast majority of Muslims worldwide would not be excluded. And the "ban" would apply to non-Muslims as well as Muslims from the specified countries.
Judge Gregory goes on to say “Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.” Talk about being vague! How has the EO gone beyond Trump's constitutional power? Where does the notion of being absolute come from? It might be a nice verbal throw in to make the Judge's opinion sound high minded or even plausible. But what is there to be checked? What is this vague "irreparable harm to individuals across this nation"? This is verbal gibberish to give the Judge's vague opinion the color of justice. But it is not about law. It is not about constitutional interpretation, nor legal interpretation. It is about appealing to emotion rather than law.
Our laws apply to this country and the citizens of this country. Those who are not citizens have limited rights that we have granted them. They don't legally or constitutionally have a right to come here.
The three dissenters faulted the majority for ignoring Supreme Court rulings that called for deference to presidential authority over immigration.
Judge Paul Niemeyer also derided the majority for “fabricating a new proposition of law” that allows judges to use campaign statements to decide on the president’s actions in office. The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.".
He was equally scathing in accusing the majority of “radically extending” Supreme Court rulings on the Constitution’s guarantee of religious freedom in ways that would limit the president’s power over foreign affairs.
So the judicial wheelhouse has gotten a lot larger. Actually this progressive mode of adjudication is limited only by the imagination of a majority of sitting judges. Actual law can be irrelevant when it is confronted by nice sounding opinion.