Judicial Activism

I’m back from skiing in one piece and with all limbs in the right place, so can now get back to blogging.

Probably the biggest thing that happened while I was away was the ruling by the 9th Circuit Court of Appeals in the US that Trump’s Executive Order suspending immigration from certain countries could not be reinstated following the earlier declaration of a Seattle judge that it was illegal.

This decision surprised me for several reasons. The first is that I couldn’t understand how, in a nation in which states’ rights have been steadily eroded to the point that a farmer growing wheat to feed his own cattle is the business of the Federal Government, a regional judge could call a halt to a federally-mandated immigration policy. But then I’m not a lawyer.

Then there were the three things raised in this article at the National Review, which is worth reading in full:

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.

I always assumed a judge’s role in this context was to determine whether something is illegal or not, whereas the above extract simply asserts that some people – and by extension the states of Washington and Minnesota – will be disadvantaged in some way. Well, I am disadvantaged in some way by my tax bill and speed limits: can I therefore ask a judge to rule them unlawful? This is bizarre. Then there is this:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart

The judges appear to be saying that the US Constitution, or at last due process, applies to hypothetical people who were in the US without proper migration papers but might want to come back in the future. In other words, non-Americans who have not migrated to the US and are not currently in the US are entitled to due process under the Constitution. Who knew?


The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.

This is the strangest of them all, for two reasons. Firstly, I assumed a judge’s role is to determine whether something is lawful or not, but here they seem to be ruling on whether the Executive Order will be effective based on criteria they seem to have dreamed up on their own. Secondly, the ruling suggests that the United States government is not permitted to put in place temporary restrictions on people coming from war zones unless and until one of their countrymen has committed a terrorists attack. In other words, the US security services are not allowed to respond to developments around the globe.

I have said before in the context of the gay marriage ruling that the judiciary in the US has become politicised to the point that it is no longer merely interpretting the law, but actually making up the law as they go along according to the personal wishes of the judges in question. This latest farce only serves to show how deep the rot has set in. Had the judges ruled the Executive Order illegal by citing the law as it is written, or even expressed concern over the fact that such matters, and others, are being handled via Executive Order in the first place then I would have no complaints. But to this untrained eye it looks as though judges in the United States believe they can rule any way they like without any meaningful basis in the law they are supposed to interpret or uphold, and take on the role of political opposition to any policy they don’t like.

A lot of people are celebrating this decision and are citing it as proof that the Judiciary is keeping the Executive in check, as it is supposed to. Personally I think this is setting an appalling precedent, and this will become apparent to those celebrating at some point in the future when they find a judge who is not on their side simply hands down a ruling out of thin air which is not to their advantage. As we have seen with Executive Orders and unprecedented Presidential powers, a lot of people never seem to think that the wrong people might be in charge one day.


4 thoughts on “Judicial Activism

  1. Indeed. Even from a great distance and with not a great deal of interest in this it seems to me to be absolutely clear that the President is within his rights to make this order. There is then the question of whether it conflicts with some other element of the constitution, e.g. due process. Then there is the issue of whether constitutional protections including due process apply to either only citizens, or/and only those resident in the US. My view is that due process rights should benefit citizens wherever they may be, and all those within the US or her territories (I’d probably verge towards saying it applies also to illegals) as they would fall within the domain of the US authority.

    That said, the order may be legally proper but it is also pretty dumb (except perhaps as a political device.)

  2. The US is kind of like fake everything, you have to wonder about their so called military might being fake as well, judging by how badly it failed their people in their most guarded home locations on 9/11.

  3. Just another part of the ongoing establishment fight against a democratically-elected president.

    Somewhere on his ‘to do’ list Trump should have ‘hire some people to find out which White House staffers are leaking against me every day and fire them’.

    I also note that the anti-Trumpists have gone so far over the full retard event horizon that they have made Piers Morgan right.

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