The Judicial Resistance Reveals Itself

Over the past 60 years, the federal judiciary has led a transformation of American society—from mandating enormous expenditures on diversity programs, to requiring the provision of abortion on-demand, to redefining the meaning of marriage itself. No other nation in the world has been subjected to these judicially imposed upheavals.

But the 2016 election, in challenging the wisdom of our ruling elites, has elevated this judicial activism even further, fostering what constitutional law professor Josh Blackman has aptly dubbed thejudicial resistance.” As Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York revealed Tuesday, the judicial resistance will not relent in its zeal to transform America—all under the guise of interpreting the law.

To illustrate the audacity of Judge Garaufis’s order, which holds that President Trump is legally obligated to enforce President Obama’s Deferred Action for Childhood Arrivals (DACA) program, let’s take a quick tour down memory lane.

Recall that in 2010 and 2011, President Obama repeatedly declined to issue an amnesty order dealing with the so-called Dreamers (i.e., illegal immigrants who had entered the United States as minors). As much as President Obama might have wanted to grant amnesty, he recognized the president has a constitutional obligation to enforce federal law. That meant he could not change the legal status of people who had entered the country illegally. He could not grant them federal benefits. He could not give them work permits.

In October 2010, for example, Obama conceded with his famous humility: “I am not king. I can’t do these things just by myself.” Then a few months later he admitted he could not “just suspend deportations through executive order.” And a few months after that he claimed he could not “bypass Congress and change the [immigration] law [him]self,” because “[t]hat’s not how a democracy works.”

But in June 2012, with the election on the horizon, Obama issued the DACA executive order—which not only deferred the deportation of the Dreamers but also granted them employment and other federal benefits. He did this without going through the “notice and comment” procedure—i.e., the administrative process requiring any proposed “substantive” change in administrative rules to give affected parties a sufficient opportunity to express their objections before any action on the matter can be taken. (The Obama Administration’s position was that DACA did not represent a “substantive” change in immigration rules, but rather a statement of enforcement policy, and therefore did not require going through the lengthy and arduous “notice and comment” process.)

Fast forward to 2016: President Trump was elected on an immigration campaign, and critical to his campaign was his pledge to enforce federal immigration laws by securing the border and repealing DACA. This latter part of the pledge seemed easy enough: Since DACA was only an executive order (and arguably an unconstitutional one at that), all Trump had to do was issue an executive order repealing DACA.

At least that’s what any reasonable lawyer would have told you a year ago. But no reasonable lawyer would say that with such confidence now. That is because in the past year federal judges have made it their priority to kill the president’s agenda, especially on immigration.

Consider how when the president issued the so-called travel ban executive order, limiting entry of people from countries deemed likely to present significant national-security risks, lower federal courts decided that this amounted to an establishment of religion, in violation of the First Amendment’s Establishment Clause. Any lawyer making this claim before the 2016 election would have been laughed out of court. Indeed, from the Founding until 1965, U.S. immigration law explicitly favored predominantly Christian (i.e., European) countries. But no one ever suggested that over those 175 years Congress had been violating the Establishment Clause.

With the election of Trump, however, invoking the Establishment Clause suddenly became the preferred legal method for the nation’s top law professors and federal judges to shut down any change to post-1965 immigration policy. As a result, lower federal courts have issued “nationwide injunctions” striking down each of the three travel bans on the ground that regulating our borders somehow amounts to establishing a national religion.

As another example of Trump Derangement Syndrome Jurisprudence, consider the so-called transgender ban decisions. Transgendered people had never served (at least not openly) in the U.S. military until President Obama issued an order on the subject shortly before leaving office. In fact, the term “transgender” was not even part of the popular vocabulary until 25 years ago. But that is enough of a tradition for federal courts to hold that transgendered people are so central to the American experience that they now constitute a “protected class” and therefore may not be excluded from the military. Again, what would have struck any lawyer as an absolutely ludicrous claim just a few years ago is now part of the American constitutional pantheon.

That brings us back to Judge Garaufis. His order on Tuesday held that President Trump has a constitutional obligation to enforce DACA, because President Trump’s decision to rescind DACA was, in Garaufis’s words, “arbitrary and capricious”—administrative law parlance for “absolutely insane.” And that is essentially how the judge characterized Trump’s decision to rescind an executive order that Obama, the author of the order, at one time admitted was undemocratic and worthy of a king, not a president. What reasons must a president articulate for rescinding his predecessor’s admittedly unconstitutional executive order?

What Garaufis’s order means, legally, is that Trump still has the power to rescind DACA; he just needs to convince a federal judge that he does not have “arbitrary and capricious” reasons for doing so. What that means, practically, however, is that there is little chance the federal courts will allow him to rescind it. Because that is what it means to be part of the judicial resistance—to use the enormous, and continuously expanding, power of the federal judiciary and administrative state to further the ruling elite’s agenda.

The federal district court’s ruling will surely be appealed, and it may very well be reversed. But make no mistake—whatever happens with his ruling, this pattern within the federal judiciary will surely continue. And like all efforts to suppress the desires and interests of the great majority of a nation, this judicial resistance is likely to create a resistance of its own.

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About Jesse Merriam

Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.