Skip to comments.The Chief Justice Takes On the President
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.
His kids were adopted from Ireland via somewhere in Latin America.
It’s ILLEGAL for people not residing in Ireland to adopt kids from there, see..? That’s why they did it that way, the technically illegal way. That’s why they had the two Irish mothers FLY out of Ireland, to use the Little Kid Black Market.
Roberts and his wife were vulnerable on that, that’s why they say he switched his Obamacare vote.
He was blackmailed.
Trump. These anti-Constitutional "judges" need to be removed.
I would say that he is still being blackmailed.
IIRC, this all started when a judge in Hawaii ruled against Trump for trying to enforce the exact same immigration law Obama used — separating parents and children when the parents were detained.
That ruling finally got to the SC which sided with Trump against the Hawaii judge.
Jumping on the opportunity of criticizing Trump had no risk and will get him much praise from the media.
All this guy cares about is appearances and his legacy or he would have stayed silent like he did with the previous POTUS.
What deal are you talking about?
The author overlooks the fact that the POTUS can deny entry of any group of persons he sees fit, the SCOTUS has already confirmed that. Trump is just exercising that power by designating central and south Americans who come across the boarder illegally as a group. And when you have tens of thousands of them crossing at once and overwhelming the system, it must be brought under control. The law was never intended to allow us to be invaded and not defend ourselves.
As usual, Town Hall blows it!
Judge Nap has a few inaccuracies. For one, Sec Def did NOT call it a stunt. Mattis specifically replied to a Reporters question asking if it was a stunt, by stating that WE DON’T DO STUNTS.
In addition, under the UN/Int’l rules the asylum seekers are supposed to ask for asylum in the first country that they enter - that would be Mexico, not USA. Some Freeper did a lot of research and posted this a few days ago.
Also, not mentioned is the fact that we are still operating in a state of emergency since 9/11 and a couple of other national emergencies which involve illicit border crossings, hence I’ll be surprised if POTUS doesn’t have the right to do this-since rules change to give POTUS more authority in emergencies, and he already has plenty in regards to who gets in and who doesn’t.
Roberts needs to shut up. If there weren’t Obama Judges and Trump/Conservative judges, we wouldn’t have had to endure high tech lynching of Thomas and Kavanaugh.
The Gay Judge speaketh. But...
Section 212(f) of the Immigration and Nationality Act states plainly: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
ection 215(a) of the Immigration and Nationality Act similarly states: Unless otherwise ordered by the President, it shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.
“any aliens or of any class of aliens...impose on the entry of aliens any restrictions he may deem to be appropriate.”
Words ae just inadequate.
That ruling finally got to the SC which sided with Trump against the Hawaii judge.
That right. Needs to be repeated .
“Judge” nap doesn’t quote any statutes when he says the radical leftist judge upheld US law. I’ve heard plenty of lawyers on TV quote the statutes that Trump was enforcing, and the recent SCOTUS ruling in support of that enforcement.
Also, there is the basic premise that someone seeking asylum must stop in the country (Mexico) where it is first offered.
Everyone knows this commie judge will be overturned on appeal.
I used to like judge nap sometime ago but now he’s nothing but a Trump hating butt head. Replace him with Judge Jeanine.
Judge Nappy is ALWAYS wrong. Just like most of the other tards at FOX he was given the orders to march left, hard left.
I remember seeing him when he very confidently determined that President Trump could not appoint Whitaker as a temp AG. Of course he was wrong on that one, too, but it doesn’t matter.
People see him say that stuff and they are convinced President Trump is wrong.
I just watch Fox Business. Maria B. S. Varney but mostly Lou Dobbs.
That's the theory and the job description.
But in actuality, many do overstep their charter and make, or attempt to make, public policy by stretching or reinterpreting the written word of laws and the US Constitution.
The judges that decided that President Trump does not have the authority to end Barack Obama's illegal DACA act.
I think we should let all those refugees with TB, lice, respiratory infections go to the Judges chambers to stay until their cases can be heard. He didnt have any problems with them exposing Americans to those diseases so he should be fine with it.
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