Judicial Activism and Progressive Obstruction


Written by Bearing Truth

Once again, judicial activists have legislated from the bench[i] and overturned one of President Trump’s constitutional executive orders. According to an article from Bloomberg Politics:

“A San Francisco judge barred enforcement of President Donald Trump’s executive order withholding funds from so-called sanctuary cities that fail to comply with federal immigration demands by shielding undocumented immigrants[ii].”

The Federalist Coalition previously stated the following in reference to the 9th Circuit overturning previous constitutional Executive Orders on Illegal Immigration[iii].

On a day and week filled with seemingly bigger news, we can’t forget about the judicial travesty that took place earlier…

In his concurring opinion, Judge Richard Posner noted, “We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.”

We find the notion that the Judiciary can reinterpret law based on evolving popular definitions to be flatly false and far overreaching. Regardless of where an individual may stand on the issues … it is a dangerous precedent to allow an unelected body of judges to reinterpret and write law. This type of judicial activism has been increasing in both frequency and scope, and is in direct violation of the Constitution, specifically Articles II and III. The fact of the matter is that the legislative branch is the only branch given the Constitutional authority to write or change law (Article II). If we allow such transgressions to continue to go unnoticed and uncorrected under the guise of “the greater good,” we are undermining the system that has allowed us to pursue the greater good in the first place.

In a previous article, the Federalist Coalition explained:

The key principle, from a Federalist perspective, is not the actual policy, but whether or not the President is exercising his/her executive authority within Constitutional bounds.

What about the Immigration/Travel Ban/Sanctuary City Executive Orders?

The Federalist Coalition article, “Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States: A Federalist View[iv]” explains:

Article II, Sections 2 and 3. of the Constitution vests in the Executive, the primary authority over foreign policy.  This authority was a source of argument between the founders but eventually the view expressed by John Jay in Federalist Paper #64 prevailed. His view was the executive branch should handle foreign policy given the advantage of being able to move quickly and efficiently4.

Multiple years of case law have upheld this plenary power of the President over foreign affairs.  Supreme Court Justice John Marshall was quoted when he was a member of the House of Representatives as stating:

The President is the sole organ of the nation in its external relations, and its representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him5.

The Federalist Coalition is against judicial overreach in all its forms, and rejects this ruling as unconstitutional. We stand by this statement now – as then – and further attest that this most new overreach further erodes the Constitution, and weakens both the rule of law and the national security of the United States of America.

[i] County of Santa Clara v. Trump, 17-cv-00574, U.S. District Court, Northern District of California (San Francisco). Retrieved from the Web April 25, 2017. http://courthousenews.com/wp-content/uploads/2017/02/Sanctuary-Santa-Clara-County.pdf

[ii] “Trump’s Rebuffed in Bid to Cut Funding from Sanctuary Cities.” Kartikay Mehrotra. Bloomberg Politics. April 25, 2017.  Retrieved from the Web April 25, 2017. https://www.bloomberg.com/politics/articles/2017-04-25/trump-s-sanctuary-cities-order-blocked-by-federal-judge?cmpid=socialflow-twitter-business&utm_content=business&utm_campaign=socialflow-organic&utm_source=twitter&utm_medium=social

[iii] Federalist Coalition Policy Stance on the 9th Circuit Court of Appeals overturning President Trump’s Executive Order on Illegal Immigration and Vetting of Refugees. Facebook Statement. April 7, 2017. Retrieved from the Web April 25, 2017. https://www.facebook.com/RealFedCo/posts/287883298309363

[iv] “Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States: A Federalist View” written by @FederalistGwen. FederalistCoalition.com. March 3, 2017. Retrieved from the Web April 25, 2017.  https://federalistcoalition.com/index.php/2017/03/03/executive-order-protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states-a-federalist-view/