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.

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.

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48 responses to “The Judicial Resistance Reveals Itself

  • When the Warren court ruled against segregated schools in 1954, that threw the door open to all sorts of mischief. Sixty four years of judicial interference and “social justice” legislation has led to this. To put this witch’s brew back in the bottle will require a counter-revolution.

    • A few minutes ago I addressed a similar instance of the overweening judiciary in a post over at Law & Liberty and came to the same conclusion as yours.

    • I certainly agree that the judiciary has become lawless.
      But is Brown v Board of Ed the right case to present as evidence of such lawlessness?
      1896 Plessy v Ferguson said the Constitution did not forbid de jure segregation.
      1954 Brown v Board of Ed said the Constitution did forbid de jure segregation.
      1970s Boston school busing case said the Constitution required de jure segregation.
      All three decisions were based on the same Constitution, no intervening relevant amendments.
      All three decisions contradicted each other.
      But Amendment XIV says “No State shall make or enforce any law which shall abridge the privileges or immunities
      of citizens of the United States”.
      Surely de jure segregation is an example of a law abridging privileges or immunities?

      • That is the kind of thinking which leads to the sort of social meddling now running riot in the courts. It looks very “constitutional” on paper. In reality, this is part of the disaster we’re now suffering through.

      • Then what would you consider a legitimate example of “abridging privileges or immunities”?

      • Look, Mr. Natoli, if I have to go into the nitty-gritty details of why jumping into social issues involving race and gender are a fool’s errand, then why bother having this conversation? It is the pathway to destruction and should never have come before our court system. It is an issue for states and localities to resolve. The very fact that you raise it gives rise to concern about your understanding of this nation. Freedom of association trumps everything else in our constitution. It is so vital that it should be sacrosanct. If a man cannot be denied service based on skin color, why should a person be denied service based on sexual preferences? Or if he wants to dress like a woman and visit the women’s restroom? Or marry his dog? Or be forced to buy health insurance? The answer is clear from the modern court’s rationale: he can’t. Thus the door to irrational behavior being foisted upon the rest of us is now wide open. As I said before, only counter-revolution will solve this. I hope you will be on the right side.

      • Read you loud and clear. Amendment XIV mention of “privileges and immunities” has not one real world relevant matter. The Congress that proposed the amendment, and the 3/4 of the states that approved it, included those words as wasted filler. Got it.

      • Wasted filler? Hardly. But they could not foresee the damned fools who would end up interpreting the constitution for the entire planet. They thought they were speaking to “our posterity.”

      • And get the government out of the marriage business and literally none of those things have anything to do with me and I Couldn’t care less about any of them

      • The concept of marriage is religious. Government was not involved in marriage until they could collect a tax for being allowed to marry.. If religions don’t wish to accept same sex marriage they should be free to make that decision based on the 1st Amendment. The government can collect their tax and the couple is legitimate civilly.

      • So, you are not a Jew and since they only came for Jews you should do nothing?

        I couldn’t care less about you. If the government starts forcing you to do things against your will, they will try it with me next.

  • Democrat judges have exposed a severe fault in our Constitution, the supreme law of the land: the judiciary is not subject to the checks and balances that executive is versus legislative and vice versa. We must infer that the Founders never dreamed that judges would make themselves supreme, lifetime, uncheckable legislators. The President can veto a bill from Congress. The Congress can override the President’s veto with super-majorities. But neither executive nor legislative can check the judiciary. Even a Constitutional amendment might not survive this judiciary’s scrutiny, witness the California Supreme Court declaring a California referendum amending the California state constitution unconstitutional.
    Mark Levin, in his set of proposed Liberty Amendments, proposed giving a super-majority of the Congress, and even better, a super-majority of the state legislatures, the authority to declare a SCOTUS decision null and void.
    We need that ASAP.

    • In 1996, in the case of Romer vs Evans, SCOTUS ruled that a voter-passed amendment to Colorado’s State constitution preventing the State and its political subdivisions from establishing preferences based upon sexual orientation was unconstitutional. In other words, interested parties could petition to amend the State constitution to establish new protected classes; but other interested parties could not petition to amend the State constitution to deny protected class status to the same interested parties.

      There are checks on the judicial branch; but no one in Congress or the Presidency has yet shown the political will to exercise those checks. Congress has the sole power to determine what cases the lower federal courts can decide. The President can refuse to obey or enforce judicial legislation.

    • The primary check on the federal judiciary is impeachment. Congress can also pass a law limiting their jurisdiction.

      But there are no Republicans with the courage to do either.

      • Worthless concept?! Removing RBG because of her disdain for the Constitution is a “worthless concept”?!

        I upvoted your comment calling impeachment fantasy because it is so unlikely but as a concept it is utterly necessary to the balance of powers which is why the lack of it’s use has so unbalanced government power.

      • The solution is – all judges elected to limited terms. All judges. Judges are politicians, they have to face political consequences. They have to be held politically accountable for their decisions. The idea of judicial impartiality is a myth. Judges rule on their personal political biases.
        Impeachment is a myth. It will never happen.

      • I tend to agree with you Doctor. While politicians are not overtly politicians (you’re right we still lend to the myth that they are impartial), it is clear that some (and I would say most liberal activist judges) do rule based upon political biases. I also agree that they should have limited terms, either elected or appointed – I haven’t yet decide which.

      • I might add that I don’t believe a lowly federal district judge should so easily be able to overturn an executive order. That, like some other things, should be solely within the jurisdiction of the SOTUS. Or, the rule should be that even if the district court decides it is unconstitutional, it remains in place until the suing party appeals up to the SOTUS. So, in other words, only the SOTUS can overturn.

      • I suggest that you look up Alcee Hastings. He was a federal judge who was impeached. Rare, sure, “never”? Absolutes are so rarely correct.

  • Way past time for POTUS to ask the Andy Jackson questions regarding how many battalions of troops does Judge X command in making his order stick. The time for allowing the slow roll should be over.

      • It is getting very close. Idiots like this ‘judge’ need to be at the front of the long lines of lawless traitors leading to public gallows which may be the only way to restore respect for law and order and for the importance of taking your oath to follow the law seriously.

      • Tough talk, no doubt.
        Exactly how is this hanging to be done though?
        Too many folks can’t even tie a bowline, much less a hangman’s noose.

      • They’re seditious traitors. Who cares if they swing for an hour before they expire. Hell, garrote them. Most of us wouldn’t care less one way or the other. This silent coup needs to be ended. Yesterday.

  • Who needs a king when you have hundreds (thousands?) of activist judges, all of whom share the Liberal/Progressive Social Justice Agenda?

    Who needs Law…or even a Constitution….when Judicial Fiat (which clearly trumps Executive Order) is so readily at hand?

    • Without states rights and the respect for freedom of association, there is nothing to stop these people.

  • Judge’s take oaths to support and defend the Constitution, like other federal office holders,

    Wrong opinions alone do not violate that oath. But willfully usurping the power of the executive, with knowledge that the constitutional excuse is fabricated, does.

    The only way to really reign in these autocratic judges is to impeach them when they go this far. Too bad the congressional GOP is filled with political cowards.

    • I believe GOP leadership is mostly blackmailed. And they’re more concerned about continuing to collect their ‘campaign donations’ than the benefit to the country from having someone who isn’t owned by Obama (or ???) in the job.

      • “Impeachment (judicial) is a worthless fantasy.”

        Not with a sufficiently “woke” electorate.
        Trump demonstrates the old paradigms are not as bullet-proof as Deep State wants you to believe.

      • Please do not use that filthy racist word.
        Impeachment has never worked and will never work.
        The electorate has no say in impeachment.
        Impeachment is only available to gutless worthless politicians.

    • There have been essentially no effective impeachments of federal Justices in US history and certainly not for anything less than criminal conduct by the Judge so impeachment for wilful and subversive incompetence is not going to fly (although you could possibly get a Judge side-lined for perceived and apprehended bias).

      I think the solution will present itself once the Supreme Court weighs in finally on these matters (and it will be apparent to the majority on that bench now that anything less than a pedantic stating of the obvious (ie enumerating exactly chapter and verse what is legal) will be necessary in order to head off idiot lower court judges trying to work around Supreme Court judgments after the ruling).

      It is also possible to effect change by altering the composition and functioning of the Court. Appoint a slew of new judges with a more reliable temperament is one option greatly expanding the size of the court. This, however, is expensive. You could look at creating an entirely new Court to handle certain specific jurisdictions and move only reliable Judges onto it leaving the rest with the original court to deal with less contentious work. Sidelining miscreants is probably cheaper and more effective (and they would feel like progressive martyrs for having been so identified – much as these judicial rulings are like virtue signalling – broadcasting to their fellow progressives just how IN the club they are).

      • Alcee Hastings?

        The irony being that after he was impeached he ran for and was elected to Congress where he remains today. So I guess “essentially no effective impeachments” is correct.

    • Yes to impeachment.
      It is the first step in process of removal of oath violators.
      But to actually _remove_ an ideologue judge, the impeached must be _convicted_
      So lace up your voting boots folks and stomp into 2018 elections like you mean it.
      Clear majorities will be required to actually begin cleaning up our judicial mess.

  • Just as Cloward and Piven wanted to overwhelm the welfare system, Leftist rogue judges want to overload the Supreme Court with voiding their lawless decisions. The idea is to hold up progress pending Supreme Court action. If Roberts were a man, he’d figure out some judicial preemptive strike on these nudniks. Why does Trump need to act as if these judges could dictate to the Executive Branch with no basis?

  • Simple solution, ignore the court and start impeaching lawless judges.

  • The Democrats took the judiciary route a long time ago because they knew they would never win at the voting booth especially if there radical agenda ever came to light. As usual, the GOP was impotent or incompetent in stopping them until only recently and then it may still be temporary! George Soros is backing left-wing state AG’s across the country and if you don’t see the connection by now, you never will!

  • Get rid of the federal judiciary. It is perhaps the gravest threat to the shreds of freedom that still remain. Un-elected, un-accountable, un-American.
    I will say this for Bath House Barry Soetoro. He knew how to handle the federal judiciary. He simply ignored them. Relegating the black-robed tyrants to a mere advisory body would be a good first step toward eliminating them.

  • In fact, it is the ruling by Judge Doofis that is capricious and arbitrary, demanding the enforcement of an unconstitutional executive diktat. that was first promulgated by His Supreme Majesty, Bronco Bummer the Great.

  • Simple solution: file lawsuits and get judges from OUR side to overrule THEIR judges.

    • No. Empowering parasite attorneys (but I repeat myself) is most certainly a big part of how we got here. A lawyer hunting season with a no bag limit would be much more effective.

  • At the federal level, all the tools are Constitutionally outlined for the disbandment of courts and the removal of judges who take the law into their own hands. All that is required is the Congressional willpower to do so.

  • Obama’s humility? Obama and the DNC held the Presidency and super-majorities in both chambers of Congress, AND DID ZERO. Why?

  • I don’t believe a lowly federal district judge should so easily be able to overturn an executive order put in place by an elected president. That, like some other things, should be solely within the jurisdiction of the SOTUS. Or, the rule should be that even if the district court decides it is unconstitutional, it remains in place until the suing party appeals up to the SOTUS. So, in other words, only the SOTUS can overturn.

  • The president should stand up to these lawless judges. “Nobody elected you president. TRY to stop me from doing what I was elected to do. I am ignoring your unconstitutional order and proceeding as planned. And have a nice day!”

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