Impeachment as Remedy for Lawless Federal Judges

by Jack McMullen

There is a serious and ongoing threat to the rule of law in our country: lawless federal judges appointed for life who have taken to substituting their policy preferences for that of the president of the United States when reviewing his executive orders.

 Below are four egregious examples:

1) U. S. District Judge James Robart whose district encompasses only a portion of the state of Washington (Seattle) on February 4, 2017, blocked Trump’s executive order nationwide for a temporary travel ban on citizens from seven countries of concern with respect to terrorism — as identified by the Obama administration.

2) The 9th Circuit Court of Appeals.  The panel reviewing Judge Robart’s ruling had the audacity to cite the settled Supreme Court law (3 cases directly on point) on the power of the president to expel or exclude aliens and then ignore it by deliberately slow-walking the appeal.  It finally upheld a separate ruling staying the executive order by the Hawaii judge noted below on June 12, 2017.

The  law: From the Supreme Court; The power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (see detailed footnote*). 

The footnote: Courts owe substantial deference to the immigration and national security policy determinations of the political branches —an uncontroversial principle that is well-grounded in our jurisprudence. See, e.g.,Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control”(quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977))); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national   security and foreign relations 

3) U. S. District Court Judge Derrick Watson (Hawaii) blocked Trump’s travel ban on the grounds the executive order discriminates on the basis of religion. (an irrelevant factor when considering the president’s prerogatives in the area of immigration of aliens under clear Supreme Court law).

4) Judge William H. Orrick (U. S. District Court for the Northern District of California) who blocked an executive order taking federal funds away from so-called sanctuary cities.  Constitutional experts, David Rivkin, a former Justice Department official who also served in the White House Counsel’s office, and Elizabeth Price Foley, a professor of Constitutional law, have expressed the view that President Trump’s executive order withholding federal funds from ssanctuary cites would almost certainly pass muster at the Supreme Court.  In Arizona v. United States (2012), the Supreme Court ruled that the removal process for those in the country illegally is entrusted to the discretion of the Federal Government because it touches on foreign relations and must be made with one voice.  Sanctuary policies Balkanize the removal issue with the corresponding potential for diplomatic embarrassment.

What is to be done about these lawless, freelancing federal judges elected by no one who have curbed long-standing clear presidential powers apparently because they disagree personally with policies expressed by the executive orders they reviewed?

Here is my suggestion for the best way to restore respect for the rule of law within the federal judiciary.  These judges have clearly violated their oath of office “to perform all  of the duties incumbent upon me under the Constitution and laws of the United States”

Begin by impeaching one of these District Court judges for his egregious ruling — even if conviction would be elusive in a partisan Senate.  Bringing one before Congress to explain how to square his ruling with his oath of office would send a clear message to other judges, including those cited above, who choose to ignore Supreme Court rulings and impose their personal values in place of the policies being put forth by executive order by the president.  The threat of an embarrassing impeachment proceeding would hang over them all.

Jack McMullen is chairman of the Ethan Allen Institute.

{ 1 comment… read it below or add one }

Mark Shepard June 26, 2017 at 4:11 pm

Very good points. If only Congress would use the tools it has, which are what truly make it the most powerful branch of government. It was no accident that the people’s branch would be the most powerful branch.


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