Posted on 11/29/2018 3:37:26 PM PST by Kaslin
When Donald Trump became president, he swore an oath to uphold the Constitution and enforce federal laws "faithfully." James Madison, who was the scrivener at the Constitutional Convention, insisted on using the word "faithfully" in the presidential oath and including the oath in the body of the Constitution because he knew that presidents would face the temptation to disregard laws they dislike.
The employment of the word "faithfully" in the presidential oath is an unambiguous reminder to presidents that they must enforce federal laws as they are written, not as presidents may wish them to be. Earlier this month, Trump succumbed to Madison's feared temptation, and last week, a federal judge corrected him. Then an uproar ensued.
Here is the back story.
Federal immigration laws, as well as treaties to which the United States is a party, require that foreigners who are seeking asylum here may enter the United States across any border they can reach, whether at a designated portal or not. If they have not entered through a designated portal, they can be brought, without a warrant, to a portal for processing.
The feds must process all asylum applications from migrants who make prima-facie cases for asylum. Once an application has been made, the feds may release the migrant (as President Barack Obama did) into the general population, or they may detain the migrant (as President Trump has done), pending a trial before a federal immigration judge.
At the trial, the migrant has the burden of proving worthiness for asylum. That worthiness can be based only on government animosity toward the migrant or government failure to protect human rights and enforce property rights in the home country. If the migrant prevails at trial, asylum is granted, and a green card is issued. If not, deportation follows.
On Nov. 9, President Trump issued a proclamation directing the Border Patrol to deny entry to all migrants, including those with legitimate asylum claims, unless they come through government portals where Border Patrol personnel are present to address their applications. Though this sounds reasonable, it directly contradicts federal law, which expressly permits migrants to enter the U.S. anywhere.
When groups of migrants challenged Trump's order in federal court in San Francisco, Judge Jon Tigar prevented the government from complying with the president's proclamation. The judge did not make any value judgments, nor was he critical of the president's motivation. Rather, he ruled that the law is clear: Immigrants seeking asylum may enter anywhere, and the president cannot change federal law; only Congress can.
Trump dismissed Judge Tigar's ruling as meritless because the judge was appointed to the bench by former President Obama. The implication in Trump's words was that Judge Tigar ruled against him for political reasons. In reality, Judge Tigar did what any judge would do; he prevented the president from changing federal law and required him to enforce the immigration laws as Congress has written them -- and to do so faithfully.
Trump should not be surprised when judges rule against him when he takes the law into his own hands. He cannot close the border without an act of Congress and a lawful withdrawal from two treaties. He cannot refuse to accept asylum-seekers based on where they enter. He cannot use the military to enforce immigration laws -- his own secretary of defense called this a "stunt" -- without violating other federal laws.
Judge Tigar did not necessarily inject his personal ideology into his ruling (any more than the "Trump judge" who ruled for CNN and against the president did last week); he merely applied long-standing federal law. There is no room for ideology at the trial level. I know that personally from my own experience as a trial judge in New Jersey.
Shortly after Trump publicly blasted Judge Tigar, Chief Justice John Roberts came publicly to Tigar's defense. The chief justice announced that there are no Obama or Trump or Bush or Clinton judges, just hardworking defenders of the Constitution. That comment was met by two more from Trump, who disputed it directly.
Who is correct?
There is no question that many federal judges are nominated by presidents because of shared views on public policy. But though this is ordinarily the case for appellate judges and, in the modern era, is always the case for Supreme Court justices, it is rarely the case for trial judges, of which Judge Tigar is one.
Trial judges do not make public policy. They apply statutes as written by Congress, pursuant to precedent as set forth by the Supreme Court and the intermediate appellate court to which they are subject.
Yet we know that there is a kernel of truth in the president's accusation and that there is a kernel of tongue in cheek in the chief justice's contention. Surely, Justice Ruth Bader Ginsburg would view Judge Tigar's ruling more favorably than Justice Samuel Alito would. Ginsburg, a Clinton appointee, would probably interpret the law literally, and Alito, a George W. Bush appointee, would probably give the president some wiggle room.
Yet the spectacle of the president and the chief justice disputing constitutional values is not a happy one. Here's why. Under the Constitution, the three branches of the federal government -- legislative, executive and judicial -- are equals. Yet the judiciary has the final say on the meaning of the Constitution and the laws. The judicial branch is anti-democratic. Federal judges shouldn't care what the public thinks. Their job is to apply the Constitution and interpret federal laws as they have been written, come what may.
For these reasons, federal judges and justices have life tenure. They do not need and should not seek public approval. And they should not enter public disputes -- other than by their judicial rulings -- for by doing so, they can appear as political as those in the other two branches.
Trump should not have called it a Executive Order, he only needed to explain as the law written in 1952 says, he was making a proclamation. He shot himself in the foot, it was a rookie mistake for sure.
Well, I did say “hope” LOL!
Would sure improve the whole Judicial Branch if some of the four feudal, anti-constitution SC Justices would go.
Not meaning to get involved in a dispute between Freepers but just stating the facts.
Napolitano is a homo(albeit a barely closeted one) but these articles cannot be interpreted in any other manner.
Where he puts his pecker is not my concern but only God can judge him.
IMHO
Thank you for the apology. I don’t KNOW about Judge Andrew Napolitano, but I think it is plausible. I don’t believe John Roberts is gay or being blackmailed. I think he just cares more about his popularity with his fellow judges and DC than he does about the US Constitution.
If that had been done in the past we wouldn't now be dealing with some stupid and un-American decisions that have come out of that arrogant body.
Agreed. He should have remained silent instead of making comments like he did about President Trump's comments.
<b>yields this</b>
Lets say this is 1930. The The Immigration Act(The Johnson-Reed Act) was passed in 1924 which limited the number of immigrants allowed entry into the United States through a national origins quota. The quota provided immigration visas to two percent of the total number of people of each nationality in the United States as of the 1890 national census. It completely excluded immigrants from Asia. Before in 1917, there was an Act that required that required immigrants over 16 years old to demonstrate basic reading comprehension. That comprehension was to be determined in a test given at Ellis Island. A tax was exerted from each immigrant upon arrival and new requirements had to be met before one was allowed in. The total number of visas available each year to new immigrants was set at 350,000. The screening process was in full effect. Of course, the Johnson-Reed Act was racist. It caused an increase in illegal immigration. It was also anti-Catholic and the KKK rose up to eliminate Catholic immigrants. It became the law of the land until the quotas were eased in the Immigration and Nationality Act of 1952 and replaced in the Immigration and Nationality Act of 1965.
But imagine it is 1930. Suppose fifty ships filled to the max with Irish Catholics left Ireland’s Dublin Harbor and headed to New York Harbor. Instead of landing at Ellis Island, they unloaded en-mass in New York Harbor. What do you think would have happened then? It was a time of the Great Depression. Herbert Hoover was President. Illegal immigration was increasing. Increasing unemployment was at a crisis. Hoover reacted by launching a wave of raids and deportations affecting as many as 1.8 million men, women and children. The idealized notion that immigration in our past was a humane bright spot in our nation’s history is a myth.
About the same thing that happened to the Bonus Army.
Indeed it would be an improvement. I’ve had it with black robed tyrannical despots.
A great find. I was searching for an example like what happened to the Bonus Army. Not being a history buff, my search only covered the deportations caused by the rise of illegal immigration. I can imagine the Great Depression world wide. There would have been a huge pressure for people in affected countries to do anything to get to America. I have a great Irish grandfather who stole away on a ship to get into America.
“I would say that he is still being blackmailed.”
I would say that the blackmail issue never will end. You can’t un-adopt two kids. The crime has been committed and he is dealing with it. Because he’s dealing with it, we all must suffer.
The report of the Committee on detail on August 6 already had the provision that the President "shall take care that the laws of the United States be duly and faithfully executed..." I don't know whether Madison was a member of this committee.
And I would say that you are correct.
Does Judge Napolitano really expect us to believe that the Framers of the Constitution intended that Anyone illegal entering the United States has a right to remain here for what is in REALITY indefinitely ?
“Links or it’s nothing but fake news.”
A photo of Roberts and two guys was posted a couple days ago. It’s one of those things that makes you go, “Hmmmm...” You know — like that pic of Obama and his butt boy cozying up in the middle of a sofa with plenty of space on either end of the sofa.
“Napolitano’s longtime friend James C. Sheil “
IIRC, Nap had referred to Sheil as his “partner”. I could be wrong, but I think he did.
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