If it is unconstitutional to raise his head out of a cannibal’s pot, is a lawful man compelled to keep it there? Most may not realize it, but that question varnished in varying legalese is going to eventually dominate discussions from Main Street to Pennsylvania Avenue.
As the Enumerated Powers and 10th Amendment grew faint over time, jurists found themselves increasingly unable to even discern the text at all. Thus the robust states’ sovereignty enshrined in those parts eventually became buried under a blizzard of court decisions backed by federal bayonets. This establishing a new rigid demarcation line between state and national authority: states can decide which bird they want on their license plates, with the federal government having jurisdiction beyond.
But the snowdrifts haven’t ceased there. Over time both the executive and judiciary branches have consistently encroached on legislative functions to the point where the pomp of Congress has become largely ceremonial. Real rule entails real political risk. And unable to tolerate even thimblefuls of that, legislators have consistently ceded painful decision-making to branches more enthusiastic about bearing it. As a result, Congress increasingly finds itself as irrelevant to the true conduct of power as the states before it. Maybe they’ll retain the small dignity of deciding between pheasant and turkey for a mural on the north side corridor.
Though even that became the purview of charity once the Supreme Court generously granted itself the power of judicial review. This being the authority to make final pronouncement on what actions are “constitutional.” The quotes being necessary to highlight this as the pretext to judicial supremacy it has manifestly become. Go far enough up any organization, and you’ll eventually reach one man. That man is either going to be the President or Chief Justice. Though I can recall only one of these two subjecting himself to an election by the people he is committed to ruling.
Though on the matter of immigration, you are aware by now of the intervention by a Washington state federal judge in halting Trump’s immigration order. I would like to assure you that no framer of the constitution anticipated an unelected and unknown district judge roosting somewhere West of the Cascades would be endowed with the authority to peremptorily alter federal immigration policy, much less make the preposterous implicit claim that the constitution grants foreign nationals a universal right to reside here. But since I have not been entrusted with issuing personal preferences under banner of words that nowhere appear, I won’t presume to say for sure. The constitution may not actually opine on the mandates of abortion, gay marriage, infinite black uplift, and Somali colonization, though you’ll simply have to trust us in knowing it’s there if you know where not to look.
For those with a stomach too delicate for lengthy rationalizations I have excerpted only the most germane passages from judge James Robart’s order to the president.
As an initial matter, the Court finds that it has jurisdiction over federal defendants and the subject matter of this lawsuit.
I can imagine many of us long for an occupation in which the power to define its contours resides strictly with ourselves.
Hey wait, you’re only a mailman, you can’t just take my car!
As an initial matter, the Delivery Facilitator finds that it can.
Following this unimpugnable explanation, judge Robarts proceeds to present the plaintiffs’ merits:
Specifically, for purposes of the entry of this TRO (temporary restraining order) the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The EO adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the states by virtue of their roles as parents patria of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the EO has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.
It’s unfortunate for Britain’s King George that the Constitution hadn’t yet been conceived. Otherwise one of Robarts’ loyalist predecessors could have offered the exact citation in shutting down General Washington’s operations. Though I have serious doubt GW would have given such a eunuch more notice than a blowfly.
But to address the matter more contemporarily, the judge is stating–with a straight bow-tie–that American public finances and education are “irreparably” injured by a curtailment of Sudanese squatters. This being the sort of fantasist jabberwocky that belongs on Tumblr blogs or the Washington Post, not publicly-sanctioned courtrooms.
Apparently somewhat sheepish about the government hierarchy he has just placed himself atop, Robarts goes on to provide a helpful description of the judiciary’s restrained constitutional role. A statement that must have left many reeling with vertigo from the order that just preceded it.
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.
The wicked explain when no man asketh. So it was with that embarrassing civics lesson coda. Robarts is repeating the rules he has just openly flouted as camouflage for his misconduct. It’s not a particularly uncommon tic. Having coveted it from afar, I’ve been thinking about swiping my neighbor’s mower. If he notices me using it later, I’ll just immediately commence with fundamental to the work of this lawn care provider is a vigilant recognition that he is but one laborer among many. And that it is not his authority to usurp another man’s zero-turn tractor, but to simply ensure (by possession) that such implements are being used in ways that comport with safety precautions, local ordinances, and Our Constitution. If my neighbor isn’t a nazi, he’ll understand.
But understanding is in unfortunate short supply. Such as precisely what element of the Constitution Robarts is alleging to preserve. Or similarly what laws have been offended by Trump’s actions. Was it 212(f) of the Immigration and Naturalization Act?
Or Section 207 of that same legislation?
Except as provided in subsection (b), the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.
Some bagel-faced bols are claiming the Immigration and Nationality Act is no longer even in force, having been dissolved by the later passage of Hart-Cellar. If that is true, 52 years later our federal immigration services have still not yet been informed.
Though citing statutory justification for black-robe policy preferences is nothing more than an exercise in esoterica. As actual words have been entirely unnecessary to achieve the Courts political objectives. Practically the entire leftist platform has advanced behind emanations and penumbrae alone. If there were no constitution whatsoever these raw exercises in undemocratic judicial rule would all be performed in the nude. Instead, Anthony Kennedy advises us the Constitution mandated “gay marriage” some 220+ years after it was ratified by a people who would have found the premise abhorrent if they even possessed the imagination to conceive of it.
And the same document now reportedly prohibits even modest limitations on migration from a region that was attacking and enslaving Americans even as pen was being put to paper. Should we believe the founders’ furtive intentions were for their posterity to cede the country they had bled to secure to the Barbary Coast tribes they were bleeding to defeat? No wonder libs aren’t much for originalist doctrine.
And I’m not much for turning on a spit with an apple in my mouth. Eventually a president, a congress, or just millions of citizens casting ballots in judicially discarded referenda are going to have to feel the same. Because any effort to exit the pot is going to be called unconstitutional. I hope it will take more rope than that to hold us under the boil.