SCOTUS travel ban decision casts critical eye on activist judges

July 27, 2018

SCOTUS travel ban decision casts critical eye on activist judges MitchellShapiroPhotography / CCL

The Supreme Court decision last month to uphold the Trump administration’s travel ban will have sweeping implications that extend far beyond matters of immigration and border security. By ruling in favor of President Donald Trump, the justices were putting activist judges who use their authority to unconstitutionally thwart the president’s agenda on notice: if the “judicial resistance” continues, the Supreme Court will be “duty-bound” to remove these obstructive judges for corruption.

Taking back America’s courtrooms

A senseless and illogical phenomenon beginning in the early days of the Trump administration has gradually transformed into the primary means of resistance from a minority Democratic Party. Rather than addressing the GOP agenda head-on in the polls by convincing American voters to elect them to office, Democrats have determined to skirt procedure (and the U.S. Constitution) by using the federal court system to legislate.

Progressive lawmakers seeking to upend presidential policy must simply lobby a carefully shopped district judge to issue a national injunction against the president’s orders. In the case of Trump’s travel ban, for instance, a single district judge from Hawaii had the power to shut down a key component of the president’s national security policy.

Contributing editor Rich Lowry described in Politico Magazine how these national injunctions hurt America and challenge the basic foundations of our democracy:

In this dispensation, other presidents — especially Democratic presidents — get a pen and a phone. They get to exercise the full panoply of sweeping powers of the imperial presidency. Trump, on the other hand, gets a judicial veto — even when he is simply trying to undo the unilateral moves of his predecessor.

That is precisely what happened when Trump sought to rollback the Deferred Action for Childhood Arrivals (DACA) program in 2017 that was passed by executive decree under Obama. U.S. District Court Judge John Bates in the District of Columbia ruled that the administration must continue granting DACA permits unless officials came up with a better reason for ending the program.

With a snap of his magisterial fingers, a lower district judge, brought to the bench by appointment, unilaterally vetoed the duly-elected president of the United States.

Legislating from the bench

However, Bates’s judicial overreach seems petty and inconsequential in comparison to that of U.S. District Judge for the District of Hawaii Derrick Watson. The Trump administration’s travel ban went through three radical revisions, mostly to placate Watson’s fussy and insatiable critiques.

It was Watson who first issued a nationwide halt to the second version of Trump’s executive order on March 15, 2017, even after Trump removed a subsection of the order to satisfy the judge’s objections. And when the Trump administration rewrote the entire executive order, this time adding non-Muslim majority countries, Watson issued another nationwide injunction, writing that the new version “suffers from precisely the same maladies as its predecessor” and “plainly discriminates based on nationality.”

When the Supreme Court finally intervened to uphold the travel ban and end the debate, Justice Clarence Thomas spent the majority of his concurrence excoriating the lower courts for abusing their authority. Thomas accused district judges of applying their rulings way beyond the subjects of their litigation.

Rather than temporarily permitting the litigants who were challenging earlier version of the ban to enter the U.S. until higher courts could intervene, Watson shut down the whole program. Daniel Horowitz explains for the Conservative Review:

As long as the tens of thousands of immigration lawyers can continue to challenge any long-standing immigration policy before a carefully shopped district judge and immediately secure a nationwide injunction on that policy, the categorical ruling of the majority will have a limited effect.

“Duty-bound” to act

Thomas ultimately concluded that “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

Rather than hold Watson and other district judges accountable for their judicial overreach, however, the court left that fight for another day. Writing his own opinion, Justice John Roberts asserted that his “disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court.”

However, that day may be here already. On the same day that the Supreme Court validated the president’s travel ban, a coalition of sixteen states and the District of Columbia sued the president for his border security policies.

The time has come to remove judges who are determined to legislate from the bench and ignore the Constitution.


Benjamin Baird

Benjamin Baird is a senior staff writer for the Conservative Institute. He is a veteran infantryman of Iraq and Afghanistan with over 1000 days in combat and holds a degree in Middle Eastern studies from the American Military University. Ben is a regular contributor at the Middle East Forum and has written for dozens of conservative publications, including The Daily Caller, American Spectator, American Thinker, New English Review and Yahoo News.