Law & the Courts

Obama’s Judges Continue Thwarting Trump

President Obama at a White House press conference in 2016. (Carlos Barria/Reuters)
To the Lawyer Left, elections represent a policy choice only when Democrats win.

As I write on Friday, the restraining order hasn’t come down yet. But it’s just a matter of time. Some federal district judge, somewhere in the United States, will soon issue an injunction blocking enforcement of the Trump administration’s restrictions on asylum applications.

The restrictions come in the form of a rule promulgated jointly by the Departments of Justice and Homeland Security, and a proclamation issued by President Trump. In conjunction, they assert that an alien who wishes to apply for asylum in the United States must act lawfully: An alien who is physically present here and wishes to apply must be in the country legally; an alien outside the country who wishes to apply must present himself at a lawful port of entry — not attempt to smuggle his way in or force his way in as part of a horde (i.e., no invasions by caravan).

Of course, what used to be assumed is today deemed intolerable. It is no longer permitted to expect of non-Americans what is required of Americans — adherence to American law while on American soil.

Therefore, the fact that the administration’s action is entirely reasonable will not matter. No more will it matter that, contrary to numbing media repetition, the rule and proclamation derive from federal statutory law. Nor will it make any difference that, in part, the president is relying on the same sweeping congressional authorization based on which, just four months ago, the Supreme Court affirmed his authority to control the ingress of aliens based on his assessment of national-security needs.

Just two things will matter. The first is that the asylum restrictions represent a Trump policy that reverses Obama policies — specifically, policies of more lax border enforcement, and of ignoring congressionally authorized means of preventing illegal aliens from filing frivolous asylum petitions (with the result that many of them are released, evading further proceedings and deportation). The second is that, precisely to thwart the reversal of Obama policies, President Obama made certain that the vast majority of the 329 federal judges he appointed were progressive activists in the Obama mold.

The media-Democrat complex will tell you this is “the rule of law.” In reality, it is the rule of lawyers: the Lawyer Left on the front line of American decision-making, a line that runs through courtrooms, not Capitol Hill.

You can already hear the retort: Conservatives do the same thing — put conservative judges on the bench to dictate conservative results. Au contraire. Conservatives really do want the rule of law, as in the laws that Congress passes and the president signs. That is, we want the country run by accountable office holders who answer to us, whom we can remove if they make bad decisions. We are willing to live under laws we oppose, provided that we have a fair opportunity to repeal or amend them. To take an obvious constitutional-law example: Though we oppose abortion, we are not looking for robed right-wingers to “discover” a prohibition of abortion in, say, the due-process clause. We think it is a matter for legislation, primarily at the state level. 

That is not what the Lawyer Left is doing. They talk a good game about “ground-up democracy,” but the actual goal is top-down control. Those judges — their judges — are in place to dictate policy outcomes, not to let democracy happen.

The people of the United States, through their elected representatives, have empowered the president to suspend or impose conditions on the ingress of aliens if he finds their entry would be “detrimental to the interests of the United States.” How can it be denied that the illegal entry of aliens — which patently undermines the rule of law — is detrimental? Yet, there is certain to be a race to be the first judge to issue a restraining order, to champion an imaginary right of aliens to seek asylum however they damn well please.

Just as the administration was readying the new asylum standards, a three-judge panel of the Ninth Circuit ruled that Trump is powerless to reverse Obama’s DACA policy (Delayed Action on Childhood Arrivals). You’ll be shocked, no doubt, to learn the panel’s composition: two Obama judges and one Clinton judge who was on Obama’s short list for elevation to the Supreme Court.

DACA effectively amended deportation law, a presidential usurpation of legislative power. Obama imposed it unilaterally despite several times conceding that he lacked the authority to do so. (If you don’t remember, my friend Hans von Spakovsky reminds you here.) But the judges are enshrining it nonetheless. Mind you, DACA is not even a regulation, much less a law (indeed, Congress declined to enact such a law). Obama decreed it by having his homeland-security secretary issue a policy memo.

Yet the judges would have you think it was engraved on tablets pried from the Ark of the Covenant. The court’s opinion often reads like a bad novel — as if jurisprudence has become Sonia Sotomayor’s world, and we’re just empathizing in it. Otherwise, it reads like a policy memo that borrows liberally from Obama’s policy memo. Bottom line: The Ninth Circuit says Trump did not provide a good enough explanation for changing Obama’s policy.

Do you suppose there would ever be a good enough explanation for the Ninth Circuit?

On the same day, an Obama judge in Montana issued an injunction blocking the Keystone Pipeline. This toed the Obama line, the former president having halted construction of the pipeline — which would transport oil from Canada to Nebraska — in obeisance to his green base and as an exhibition of American global leadership on climate change.

Trump ran against these policies in his presidential bid. He sought to convince the public that the promotion of economic development was essential to national prosperity and would not harm the environment. He urged voters that Obama’s conception of global leadership was to preen while developing countries ignored his greenhouse-gasbaggery and developed countries made commitments that were “aspirational” (translation: economically ruinous) and that they had no intention of trying to keep.

You may have been under the impression that Trump won the election, and that choosing among competing policies is what elections are about. That is how it is supposed to work in our free, constitutional republic. But day by day, the space for free choice is shrinking. To the Lawyer Left, elections represent a policy choice only when Democrats win. The rest of the time, the courts are there to consolidate the Left’s gains, to repel democratically driven policy shifts.

Like his colleagues on the Ninth Circuit, the Obama judge in Montana says Trump did not provide a good enough explanation for changing Obama’s policy. The administration is weighing an appeal. Did I mention that appeals from the District of Montana go to the Ninth Circuit?

The Trump administration has done a great job filling vacancies on the federal appellate courts, but there are still eleven slots open, and 111 open seats on the district courts. There is not going to be much legislating done with Democrats now controlling the House. So let’s use the time wisely. The Republican-controlled Senate, having increased its majority, must prioritize the conveyor-belt confirmation of Trump nominees.

If the courts are to be prevented from dictating an ideological agenda, rather than allowing the nation to govern itself, rule-of-law judges must be installed. If not, you can elect Republican presidents to govern, but you’ll be ruled by the Lawyer Left.