By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

Federal Judges are unelected and cannot be removed by any means other than death, resignation, or removal by Congress because of bad behavior.  Yet, the liberal left believes these are the people who are the final say on all things constitutional.  If you ask a liberal how it is that the judges received the authority of judicial review (which, according to the left, gives the judges the authority to be a check against Congress and the President by reviewing legislation and executive orders, and striking them down if they feel they are bad), they will tell you Marbury v. Madison (which means they believe the courts gave themselves the authority through a judge's opinion).

Authorities are granted, and when they are granted, there must be a grantor and a grantee.  During the Constitutional Convention in 1787 it was established that the delegates represented the States, so it was the States who were the authors of the United States Constitution.  In the Constitution, certain powers were granted to the federal government, and the ones not vested in the new government were retained by the States.  Prior to the writing of the U.S. Constitution the States held all of the authorities on all issues, therefore, any authorities being granted to the federal government were being surrendered by the States so that the federal government could have that power.  In short, as the contract-makers and authority-grantors, the States are the parents over the federal government, so any final say regarding the social contract we call the U.S. Constitution actually belongs to the States, and We the People.

John Jay, the first Chief Justice of the United States, resigned his post to become the governor of the State of New York.  After his term as governor ended, during which time two other persons had held the chief post on the United States Supreme Court, John Adams asked John Jay if he would serve as Chief Justice again.  Adams had just lost the latest presidential election, and his big government Federalist Party had lost both Houses of Congress.  To preserve some vestige of statism in the U.S. Government, Adams began appointing "midnight judges."  As Thomas Jefferson put it, "The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them."

Jay turned Adams down, complaining that the Court lacked "energy, weight, and dignity which are essential to its affording due support to the national government." He added, "Hence I am induced to doubt both the propriety and the expediency of my returning to the bench under the present system." (Source)

In other words, the fact that the Judicial Branch was the weakest of the three branches made it not worth holding a position, according to Jay.  However, he ended his comment with the words "under the present system," which means he was a believer that in the future the court would expand its power.

The commissions for the midnight judges were not all delivered.  The Secretary of State who had been working to deliver them wound up appointed as the fourth Chief Justice of the United States.  His name was John Marshall, and he was a big government statist with even more desire for a stronger judiciary than John Jay had.

When Thomas Jefferson took office, he told his Secretary of State, James Madison, not to deliver the remaining commissions.  As far as Jefferson was concerned, they were unlawfully appointed. One of those potential judges, William Marbury, who had been appointed Justice of the Peace in the District of Columbia, petitioned the Supreme Court to force the new Secretary of State, James Madison, to deliver the documents.

They ruled against Madison, indicating his refusal to deliver the commission was both illegal and correctible. However, the Court could not order Madison to hand over Marbury's commission because enforcement of the law is a power held only by the Executive Branch, and since it was the President who ordered Madison not to deliver the commission, there was nothing the court could do to ensure Marbury received it.

Chief Justice Marshall wrote the opinion of the court.  In his opinion he wrote that when Congress passes legislation that is not constitutional, those laws are not technically law.  The Courts, in those cases, are bound instead to follow the Constitution.  This affirmed the concept of judicial review, a concept that conflicted with the principle that the States were the final arbiters of the Constitution, but supported the idea that there would be no point of having a written Constitution if the courts were unable to act as a check against the legislature to ensure Congress was not acting in a manner outside the Constitution.  Marshall also argued that the very nature of the judicial function required the court system to do more than merely apply the law.  Marshall pointed out that judges were required to recite an oath requiring them to uphold the Constitution, and the Supremacy Clause in Article VI. of the Constitution lists the "Constitution" before the "laws of the United States" making the requirement of upholding the Constitution more important than applying the law as it is written.

Thomas Jefferson was quick to question Marshall's reasoning.  Jefferson accused Marshall of considering "judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps."

As did most of the early political figures during the founding of the United States, Jefferson recognized the folly of trusting human nature, and was even more critical of giving that kind of power to judges who were not elected, and unless removed for bad behavior, could remain in office for life.

When one returns to the original text of the Constitution itself, there is no language in the Constitution authorizing the Federal courts to nullify the acts of the other two branches of government.  Nonetheless, since Marbury v. Madison, judicial review has been accepted in the American legal community, and the public now views the court system as being the final say on anything legal, or constitutional.

Now, as John Adams' Federalist Party colleagues did in 1801, the statists have retreated to the stronghold of the courts and they control roughly 70% of the judicial positions in the inferior courts.  The Democrats are now using that liberal majority in the judicial branch to attack President Trump's actions, using their version of the law as the basis of their rulings.

When the Democrats say rule of law, they mean "case law", which is the historical web of judicial opinion.  When the Democrats say "constitutional," they also mean case law.  The original intent of the Constitution, nor any of the definitions regarding the rule of law by the Founding Fathers, are ever considered, unless they believe it can be twisted to support their narrative.

President Donald Trump issued a number of executive orders that are under attack by the Democrats, with the main attacks being launched against his limitations on immigration and entry into the United States.  The liberal left is saying that the orders are unlawful and unconstitutional for various reasons, even though the laws the orders execute are clearly established and provided in the executive orders.

In a ruling a little less than a week ago, U.S. District Judge James Robart in Seattle ruled that Washington state and Minnesota had standing to challenge Trump's order limiting persons from entering the United States from seven Muslim-majority countries.  Therefore, a restraining order was issued, neutralizing Trump's executive order as the case works its way through the courts.

Washington Attorney General Bob Ferguson responded by saying, "The Constitution prevailed today.  No one is above the law — not even the president (even though it has been shown that his executive order is lawful, and executes laws currently on the books).

In the executive order, itself, Trump lists the laws his order is acting to execute.

Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, to protect the American people from terrorist attacks by foreign nationals admitted to the United States.  Section 212(f) of the INA, 8 U.S.C. 1182(f), Section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), Section 222 of the INA, 8 U.S.C. 1222, and Sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351.  The pieces of legislation listed authorizes the President to limit or prohibit immigration of groups of people he believes them to be a danger to National Security.  Barack Obama, in fact, did the same in 2011.  Obama's, however, lasted six months, as opposed to Trump's 120 days.

The pieces of legislation in question were written under the authority of Article I, Section 9 of the United States Constitution which gives the Congress the authority to write legislation regarding immigration, and the authority to prohibit persons from coming into the U.S. for any reason.

Understanding that their executive order is completely legal, the Trump administration is railing against the judge's order, which was upheld by the 9th Circuit just the other day.

White House Press Secretary Sean Spicer released a statement saying, "the Department of Justice intends to file an emergency stay of this outrageous order and defend the executive order of the President, which we believe is lawful and appropriate." ("outrageous" was omitted when the statement was reissued.)

"The president's order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people," the statement said.

Despite the White House's refusal to accept the federal decree, Bob Ferguson shot back, "This decision shuts down the executive order immediately."

He added, "The law is a powerful thing — it has the ability to hold everybody accountable to it, and that includes the president of the United States."

Washington Governor Jay Inslee praised the judge's decision saying, "Thank you to AG Ferguson and his team for making the case that no person - not even the president - is above the law."

In an interview with KOMO News late Friday, Governor Inslee said, "We're not going to allow anyone in Washington, D.C. to trample on our rights as Washingtonians, President or otherwise."

He went on to say the judge's decision is a, "great example of American democracy of checks and balances."

First, we are not a democracy, and second, the checks and balances are being applied in an unconstitutional manner.

"Washington has a profound interest in protecting its residents from the harms caused by the irrational discrimination embodied in the order," Ferguson said in a brief filed in U.S. District Court.

The lawsuit says Trump campaigned on a promise to ban Muslims from coming to the U.S. and kept up that rhetoric while defending the travel ban. To support that claim, lawyers pointed to dozens of exhibits of speeches and statements Trump has made.

"The executive order effectively mandates that the states engage in discrimination based on national origin and/or religion, thereby rescinding the states' historic protection of civil rights and religious freedom," the complaint said, calling it a violation of the U.S. Constitution.

The lawsuit ultimately seeks to block parts of the executive order that suspend immigration from the seven Muslim-majority countries, put the U.S. refugee admissions program on hold and halt entry of Syrian refugees.

Ferguson said the order is causing significant harm to Washington residents, businesses and its education system. It will reduce tax revenue and impose significant costs on state agencies, as well as make it impossible for some state employees and students to travel, he said.

A U.S. appeals court then subsequently denied the Trump administration's request to restore the provisions of the executive order allegedly neutered by Judge Robart.

In short, the Democrats and liberal judges are saying that it doesn't matter what the law says, the executive orders must be stopped because they are mean and unfair in the opinions of the leftists.

In addition to the immigration laws listed above, some readers have also informed me that they believe "the McCarran-Walter Act of 1952 signed by President Truman make President Trump's immigration ban legal."

The McCarran-Walter Act of 1952 was not signed by President Truman.  He vetoed it, but Congress had enough votes to override his veto.  The 1952 Act later was adjusted to become the Immigration and Naturalization Act of 1965.  The provision is listed in Trump's executive order as 8 U.S.C. 1182(f).

President Jimmy Carter used the same provision to announce sanctions against Iran in 1980, including the cancellation of visas for Iranian citizens.

James Madison wrote in 1835, “[I]n the case of naturalization a new member is added to the Social compact …by a majority of the governing body deriving its powers from a majority of the individual parties to the social compact.”

Congress was given the authority to legislate immigration policy.  The courts have absolutely no jurisdiction to second-guess the legislature or executive officials on any immigration decision.  Immigration authority had been transferred from the States, to the Congress, partly with the intention of ensuring the States were not flooding their jurisdictions with endless flows of dangerous or costly immigrants in order to bolster their representation in Congress and thereby negatively affect the entire union.

Roger Sherman, the only Founding Father to sign all four founding documents (Articles of Association, Declaration of Independence, Articles of Confederation, U.S. Constitution) noted during the House debate on the Naturalization Act of 1790 that “it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner.” Sherman was emphatic that federal control was designed to “guard against an improper mode of naturalization,” and prevent individual states from flooding the country with immigrants based on “easier terms.”

As for the liberal hypocrisy regarding the States' roles in the discussion, The courts prevented the Arizona government and Sheriff Arpaio from enforcing existing federal immigration law, yet they have green lighted sanctuary cities.  The courts have blocked Texas from preventing illegal aliens from obtaining birth certificates, thereby disenfranchising and stealing the sovereignty of American citizens. Yet, they have allowed Chicago to ignore ICE detainers.  The courts called Mississippi’s grievances against Obama’s illegal DACA amnesty “speculative,” but have readily welcomed Washington State’s illegitimate grievances demanding more immigrants.

Justice Scalia back in 2012 was clear on this topic, writing in his opinion of Arizona v. United States, a State’s “power to exclude from the sovereign’s territory people who have no right to be there” is “the defining characteristic of sovereignty” and that the “Constitution did not strip the States of that authority.” “To the contrary,” wrote Scalia, “two of the Constitu­tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782).”

President Trump, in the end, has one of three choices to make.  Either he can use the courts and continue to have his executive order blocked until it likely survives a down-the-road date with the Supreme Court, ignore the courts and receive the wrath of an angry media out to shut him down, or rescind the current order and reissue it with bulletproof language conceived by the lessons learned on this first executive order.

I suggest the latter.

-- Political Pistachio Conservative News and Commentary

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