Judicial Review is not a Suicide Pact

posted at 1:30 pm on October 17, 2010 by J.E. Dyer

This is a brief think-piece on recent jurisprudence and the dangers it poses.  The purpose is to get everyone thinking (I know many people already are) about what we are buying into with reflexive acceptance of unfettered judicial authority.

The first case under discussion is one I wrote about earlier this week:  the ruling of federal district Judge Virginia Phillips that the Don’t Ask, Don’t Tell (DADT) policy is unconstitutional, and her subsequent imposition of an injunction against enforcement of the policy.  My concern in the earlier piece was that she was overstepping her authority in issuing an actionable order to a department of the federal executive.  As I elaborated in an exchange with a reader at my home blog (The Optimistic Conservative), it’s one thing for a judge to rule something unconstitutional.  It’s another for the judge to issue an order that purports to require positive action from the party ruled against.  And it is especially another matter if the party ruled against is an agency of the federal executive – not a state or local entity, but a coequal branch of the federal government.

If you do a little basic critical thinking, instead of simply repeating the “judicial review” mantra we were all taught in school, you will understand that there is more than one way to see this situation.  Does “judicial review” mean that judges have the authority to direct Congress or the executive agencies to change their policies?  Not necessarily.  In fact, a sound case can be made that that’s not what the Framers of the Constitution had in mind.  It is also hard to think of landmark cases that would validate the view that judges are empowered to direct policy.

There is a good argument, instead, that the proper effect of a judicial ruling like Judge Phillips’ is to advise the other branches of government that a policy they are pursuing is unenforceable, that it need not complied with, and that it can henceforth be the basis of lawsuits and the award of damages.  Under this interpretation, the ball is back in the courts of the other two branches to decide how to proceed.  There is even a possibility, if Congress and the executive are agreed on something, and if the people are with them, that they can effectively ignore even a ruling of unconstitutionality by the US Supreme Court.

We don’t have a clear-cut, universal sentiment on this, in the minds of the people or our political class, because it has only rarely and recently come up.  I would not claim that there is any fully articulated or absolutely “correct” view on the matter.  But this is in contrast to advocates who happen to like the decisions made by activist judges, and who simply proclaim that it’s obvious that the power of judicial review confers on judges the power to order the legislature and the executive to take actions.

That’s not obvious, however, and the DADT ruling brings up one reason why.  If DOD were to cease enforcing DADT right now, the default law in effect would require charging announced homosexuals under the Uniform Code of Military Justice (which still has sodomy on the books), whenever the gay servicemembers’ sexual relationships came to the specific notice of the chain of command.  We could get wrapped around whether this is a consequence the judge intends; i.e.,  she wants to strip away DADT so DOD will have no choice but to begin a series of unpopular disciplinary actions, which would function as a political goad.

But the more important point is that, whatever the judge’s intentions, there are foreseeable consequences from compliance with her injunction that would result in tremendous administrative hassle for DOD.  The Department cannot merely “cease enforcement”; it has to do something else.  (And it can’t even decide what that “something else” is; that’s up to Congress.)  If that aspect of the situation is not the judge’s responsibility, then she should not have the authority to bring these consequences down on DOD.  That is simply a basic principle of good government.  Judicial review cannot be a pact consigning us, at the hands of judges with no responsibility for execution, to administrative or legal chaos.  If it is, the people have every right to object to it and set limits on it.

Meanwhile, DOD is in the middle of a study of the administrative requirements for a change of policy.  This too is something the judge should not have the power to simply override.  Where judges have no responsibility for practical outcomes, they should not have authority to order actions.  Their authority lies in interpreting law, not in directing policy.

The DADT injunction is the first major case I can think of in which a federal judge issued an order for action to a federal department.  It follows other cases in which highly questionable orders were issued by the judiciary, but the previous cases of interest did not involve the federal judiciary and the federal executive.  The court-ordered school busing of the 1970s is an obvious example, but it dealt with federal court orders to local school districts.  The 1985 case in which a federal judge ordered Kansas City to raise taxes and spend more on its public school system is another clearly analogous instance, but again, this directive was issued to a local school district and not a branch of the federal government.  At the state level, an obvious case would be the Massachusetts supreme court ruling in 2003 that gay couples had the legal right to marry, and giving the state legislature 180 days to comply with the ruling.

It has only been within the span of my lifetime that we have become accustomed to judges issuing rulings that require the people’s money to be confiscated and spent, executive departments’ regulations to be changed, and legislatures to take action to “comply.”  Judicial rulings have been important tiebreakers throughout the life of the Republic, but in landmark cases from Marbury v. Madison to Dred Scott, Schechter Poultry Corp. v. United States (the “sick chicken” case that brought down the New Deal) to Roe v. Wade, Engel v. Vitale (school prayer) to Kelo, such rulings have been intended to set a legal and judicial environment in which the other branches of government know their limitations and requirements.  This is a very different thing, in its concrete effect, from the judicial branch directing specific actions – and especially actions that amount to the making of policy and the coercion of the people and their representatives.

It’s in this context that we have to consider the Michigan federal judge’s decision this month that the Obamacare insurance mandate is constitutional.  Whether it is or isn’t, what’s increasingly alarming is what judges might do about what they consider constitutional or unconstitutional.  Judge George Steeh’s argument in the insurance mandate case is summarized by AP thus:

Basically, … we’re all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they’re required and none of us will be denied essential services if we can’t pay… That being so, the feds can regulate how those services are paid for.

… what the court is saying [is] “because you’ll eventually decide to avail yourself of life-and-death services that can’t be refused you, the federal government can make you help pay for them”…

… if we’re all necessarily “active” in health-care commerce at all times, theoretically there’s no limit to what sort of further activity can be mandated in the interest of spreading costs.

There are problems with this line of reasoning, of course, but we’re thinking too small if we think only in terms of whether Congress will take it too far.  What about judges?  If they can order the people to be taxed and agencies from the coequal executive branch to revise their policies, what can’t they do?

Consider the prospect of a judge combining the principles of the Phillips DADT injunction and the Steeh insurance mandate ruling.  Make the issue retirement funding.  By the principle of the insurance mandate ruling, everyone in America will participate at some level in “retirement commerce.”  All we have to do is fog a mirror, and continue to do so after the designated retirement age.  Therefore, the federal government, in the interest of regulating how this is paid for, can make us help pay for it – and it is not constrained to work solely within the framework of Social Security to do so, any more than it’s constrained to work within the framework of Medicare to make us help pay for health care.

Adding the principle of the DADT injunction to this one, we have the prospect of a judge issuing an order that goes beyond findings of constitutionality and requires federal agencies to take action.  The most likely basis for such an order would be a finding of “disparate impact” on different population groups relative to private-sector retirement earnings.  Disparate impact (racial, in that case) was the basis for the federal judge’s 1985 decision requiring Kansas City to raise taxes and spend more on schools.

Can you see how the judicial precedents may already be in place for the federal courts to order the confiscation by executive agencies of all private 401(k)s, as a means of eliminating the “disparate impact” of people’s different work choices on their retirement benefits?  It’s not just a matter of what Congress can do to us.  We also have to worry about judges ordering action by the legislature or the executive departments, based on the reasons those judges have used to award the other branches the authority to regulate and impose mandates on us.  Basically, if the government has the authority to impose a requirement on us, a judge can exercise that authority.

The appeals process for the DADT injunction and the first insurance mandate case will be of exceptional importance to our future.  If these rulings are not overturned on appeal, it is only a matter of time until a federal judge orders coercions of the people that even our legislative representatives would fear to enact.  Longheaded analysts foresaw this kind of prospect decades ago, as judicial activism extended its reach incrementally and in seemingly minor ways.  But now we are two appeals processes shy of a tremendously vulnerable condition: one in which nothing stands between us and autocratic judicial rule except a major constitutional crisis between the federal branches.

My own opinion is that the current Supreme Court will reverse the insurance mandate ruling, and could very well invalidate the injunction issued by Judge Phillips regarding DADT.  We need not despair of where we are today, but we have to learn from it.  Judicial precedent can be the most dangerous quantity in our form of government, and we the people must change our own mindset about what it means, what judicial review means, and what authority we have, through Congress and the office of president, to define and limit it.  It has always been the case that ceding absolute power to the judiciary would lead to judicial autocracy.  We can no longer afford to pretend it’s not happening.

Cross-posted at The Optimistic Conservative.

This post was promoted from GreenRoom to HotAir.com.
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Too many folks look at judges as all-powerful referees enforcing the rules as the GOP opposes the Democrats on the field. Parties have nothing to do with the proper role of judges.
You’re right, J.E., the Executive Branch, the Legislative Branch, & the Judicial Branch are equal in authority.

itsnotaboutme on October 17, 2010 at 1:36 PM

What happened to yesterdays thread posts on this?…anyway, I have a coupe of questions…one concerns geography…a District Judge is the lowest rung on the federal court levels. There are 94 districts and about 680 Judges. Can a single Judge at this level issue world wide demands for actions as the good Judge did here? Next, why does this Judge believe she can issue orders beyond finding a law unconstitutional to a coequal branch of government? Her own action is on its face unconstitutional. I do not believe the Executive can let this sort of power grab go without appeal.

JIMV on October 17, 2010 at 1:43 PM

I question the timing so close to the mid term elections. One. they are pandering to the Gay Base. Two. they are scared and jumping the gun thinking it’s now or never. They are insecure folks in power right now….and in their defense they should be. They are really really unpopular probably because this minority is the polar opposite of the majority.

Do they really care if Don’t Ask Don’t Tell is overturned? Is it about Constitutionality? Or is it just more legislating from the bench?

If you don’t trust your Government, in it’s current incarnation, you question all their would be ulterior motives.

Dr Evil on October 17, 2010 at 1:45 PM

Obama shouldn’t have a standing army, but if he’s going to have one, it should at least be feminized and respectful of transgender rights.

Spathi on October 17, 2010 at 1:48 PM

We here in Israel are being ruined by “judicial autocracy”.

Stop it cold in its tracks.

Shy Guy on October 17, 2010 at 1:51 PM

Judge is trying to help Barry in the election. Didn’t work.

tarpon on October 17, 2010 at 1:57 PM

Conservatives should watch the judicial retention election in Iowa next month. A couple of years ago the State Supreme Court legalized gay marriage by unanimous vote. Now three of the justices face a vote to retain their jobs. This is happening because of a long standing constitutional requirement that the electorate vote periodically on whether justices shall be retained. There is a campaign to remove them by gay marriage opponents. There is a lot of screaming by gay marriage supporters about how a vote to remove the justices is tampering with the system and endangering judicial independence. It will be interesting to see if the justices are removed and what the fallout will be if they are.

nkviking75 on October 17, 2010 at 2:01 PM

Jefferson noted the problem of an out of control court long ago…..

“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.” –Thomas Jefferson to Edward Livingston, 1825. ME 16:114

JIMV on October 17, 2010 at 2:01 PM

We here in Israel are being ruined by “judicial autocracy”.

Stop it cold in its tracks.

Shy Guy on October 17, 2010 at 1:51 PM

Yep, also much worse in Kanada and Europe. In the Geert Wilders case we see judges telling prosecutors what they must charge and prosecute on. In these countries judges are also appointed with much less involvement of the legislative branches. In Kanada, the appointment process for Supreme Court Justices is a joke.

slickwillie2001 on October 17, 2010 at 2:02 PM

” … ceding absolute power to the judiciary would leads to judicial autocracy. We can no longer afford to pretend it’s not happening.”

In addition to which, let us remind ourselves that absolute power corrupts absolutely.

The core concept of our form of government was that we should rule ourselves … not be ruled by “philosopher-kings” in black robes.

RedPepper on October 17, 2010 at 2:04 PM

nkviking75 on October 17, 2010 at 2:01 PM

If the three judges in Iowa get voted out. Watch then try and declare the law that voted them out unconstitutional.

Tommy_G on October 17, 2010 at 2:04 PM

Mark Levin wrote a great book on this called “Men In Black”. I read it a couple years ago, but it’s still relavent. Check it out.

The Expert Knows
http://theexpertsblog.blogspot.com

HotAirExpert on October 17, 2010 at 2:10 PM

The major concern to me is the idea that judges can order the military to do anything is extremely dangerous and unconstitutional.

The Constitution explicitly gives regulation of the military to the President and Congress. Just as power of the purse is given explicitly to Congress.

If the judicial branch, which is unelected, were to gain authority over the military it would create an incredibly dangerous violation of the balance of power between the branches of government.

There are very few checks on the judicial branch. In the Federalist Papers this is explicitly defended on the grounds that the judiciary has no military power, and no power to spend money.

It is quite easy to imagine a development in which the judiciary that first demands the military accept gay members could then move to demands that the military provide accelerated advancement for gay officers to mitigate previous discrimination. This would have the effect of placing the advancement of officer’s careers under the influence of judges.

Such a situation would completely undercut the Presidential control of the military. Officers would owe their advancement to the judges that promote them. Surely the dangers of this are obvious. Not that it would happen overnight, but what happens after 20 or 30 years of judges controlling which officers advance and which ones don’t?

Yes, I’m making a slippery slope argument. But that doesn’t mean we shouldn’t worry about it. The whole concept of traditional Constitutional separation of powers was to head off any dangers to free government before they became a clear and present danger.

Now does this mean that the military regulations and policies are completely immune to judicial review? No. However, the judiciary must be limited to declaring the regulations unconstitutional, and then returning the matter to the President and the Congress, allowing them to decide what to do about it.

And you know what? If the Congress and the President decide to tell the Supreme Court to take a hike, and ignore them- well that’s what we have elections for. If the people support the President and Congress against the Supreme Court- then maybe the Supreme Court is wrong.

We must never forget that ultimately all constitutional powers are derived from the consent of the governed- “We the People” as the Constitution puts it. We are not governed by wise philosopher kings whose dictates we must follow regardless of the wishes of the people.

Sackett on October 17, 2010 at 2:15 PM

It’s interesting how people’s opinion of the judiciary, and particular judiciary actions, track exactly with their political predispositions.

The SoCon tirade about “how can she DO that!?!?!” conveniently tosses aside that following the inherent checks and balances established by the founders, that’s her job. If she makes the determination, on the merits of the case before her, that a policy or law is unconstitutional, then she is specifically empowered to order the suspension of same. My point being that I suspect that the SoCon right would be cheering ecstatically if the topic were Skippy’s health care fiasco, or some other liberal/progressive sacred cow getting treated like the water buffalo in Apocalypse Now.

Oh, and let’s not forget, strident kids, that she is not the FINAL word on ANY subject – she is merely the first step in a process, as is any Federal Circuit Court Judge.

Calm down, and stop wearing your hypocrisy on your sleeves so proudly. Taking a more pragmatic approach is so much more fun. DADT is really a pretty bad policy, the result of Billy Jeff trying to make things up as he went along, ovverstepping his Executive authority in the first place, and then ending up with DADT as a compromise with the Congress, which was responding to the mood of the nation. Watching Skippy and his pet toady Eric squirm because they’ve been forced into a position that puts them at odds with their base AND one of their precious special interest groups is actually a schadenfreude laden cornucopia of political goodness, if you’d sit back down on the couch and pass the freakin popcorn.

Unless you’re unable to because all things ‘teh ghey’ just make you totally loose your freakin minds, which does appear to be the case.

Wind Rider on October 17, 2010 at 2:20 PM

But now we are two appeals processes shy of a tremendously vulnerable condition: one in which nothing stands between us and autocratic judicial rule except a major constitutional crisis between the federal branches.

nothing stands between us and autocratic judicial rule

Nothing except our second amendment or, possibly, a power hungry 3 or 4 Star.

BowHuntingTexas on October 17, 2010 at 2:27 PM

What is interesting is that Nicholas Rosenkranz took on the concept of what is or is not Constitutional in his piece on The Subjects of the Contitution. The concept he examines is that the structure of our language defines actions which are taken by actors, and that there must be an agreement on the subject, verb and object of any action so as to define who it is that acted unconstitutionally.

As is pointed out the current ruling puts the ball back into ‘both courts’ of the Executive and the Legislative branches, and yet that must not be the case. Why is that?

Policies do not come from nowhere: they do not spring into being on their own. They are created by actors. Thus the policy of DADT can be unconstitutional on one of two grounds.

The first is that the President acted unconstitutionally in creating this policy. As this policy is derived from the UCMJ created by Congress, then the President is the one not following the will of Congress and must adhere to the laws set by them. In this case it is the policy that is unconstitutional, not the underlying law passed by Congress. Thus the Executive is in violation of the Constitution by not adhering to the laws passed by Congress when it acted to create the policy of DADT.

The second is that Congress acted unconstitutionally when they passed the law that allowed the creation of DADT. Then the law is unconstitutional and Congress is the actor who passed the law. Thus the unconstitutional action was when Congress passed the law.

Policy must have basis in law, and the law is passed by Congress. If it is the instance of policy, not the law, that is unconstitutional, then the President is at fault. If the law, itself, is unconstitutional, then nothing the President has done can be considered as the law is the action taken by Congress. Presidents granted clemency when such laws were enforced and penalties were meted out when this has happened.

From this the unconstitutional action must be taken by an actor: the Congress or the President. It cannot be both, because if the law itself is at fault, then it was Congress’ fault for passing it, not the Executives for enforcing it. If it is the Executive then the law stands and policy is found to be at fault as an action by the President. It is one or the other, it cannot be both.

Policy is an enforcement of the law. It may not be the proper enforcement as directed by Congress.

If the law is at fault, say so and say that Congress was wrong and cite what parts of the Constitution they transgressed.

Policy does not come from nowhere, does not create itself and is not considered in isolation from the actor who created it. Subject, verb and object all must agree in this, and policy is a verb, it is an action, not a subject. Subjects are people, verbs are actions and objects is what is acted upon. Actors create law and policy to act upon an object… state if it is law or policy and you then state the actor as they are determined by the type of action, and when the action is unconstitutional is then determined by the actor as it is when they took the action.

ajacksonian on October 17, 2010 at 2:36 PM

The SoCon tirade about “how can she DO that!?!?!” conveniently tosses aside that following the inherent checks and balances established by the founders, that’s her job. If she makes the determination, on the merits of the case before her, that a policy or law is unconstitutional, then she is specifically empowered to order the suspension of same. Wind Rider on October 17, 2010 at 2:20 PM

She has the power to rule a law unconstitutional…she does not have the power to order a remedy when she is ordering another branch of government coequal to her. All she can do is express her opinion and let the branches involved seek the remedy.

JIMV on October 17, 2010 at 2:48 PM

ajacksonian on October 17, 2010 at 2:36 PM

A better approach to describing what’s going on behind the MSM and other partisan smokescreens trying to drive the PR game on the issue, AJ, so let’s take a look at where the lines got ‘crossed’ that led to the judge’s determination of unconstitutionality.

As I mentioned earlier, the entire issue came to a head with BillyJeff attempting to carry through on his campaign promise to end the prohibition of gays in the military by executive order alone. But, whoops, turned out this was so blatantly unconstitutional on its face, that it didn’t even need to make it into the courts. Thus, Congress, as you so helpfully clarified, in their role as the creators of law, which is the basis for the UCMJ, hit upon the ‘sweep it all under the rug and pretend everything is fine’ solution of DADT, which was actually passed into law.

It is this law that the judge ruled on, because of the case brought by the Log Cabin Republicans. It’s also that law that Scary Harry effectively torpedoed in such a manner as to be able to hang it around the necks of Senate Repubs by joining it to the DREAM act (among other things), which served as an effective poison pill they were unable to swallow.

One of the several take away lessons here is that we should all probably thank our lucky stars that the Dims are such hapless and nearsighted incompetent partisan hacks, or we’d probably be living in progressive paradise at this point. They’ve had four solid years to work on it, the last two with majorities in Congress, and have screwed up about everything except Health Care, but then again that’s debatable, as the manner that they did it is quite unlikely to survive the very same judicial review that quite a lot of SoCons are busy denouncing in the case of DADT.

Politics. It’s a circus. Only there’s no bars seperating the wild animals from the audience.

Wind Rider on October 17, 2010 at 2:58 PM

If DOD were to cease enforcing DADT right now, the default law in effect would require charging announced homosexuals under the Uniform Code of Military Justice (which still has sodomy on the books), whenever the gay servicemembers’ sexual relationships came to the specific notice of the chain of command.

The ruling wouldn’t be against the Executive order that is DADT, but against the US law that congress passed that makes it illegal for the military to allow homosexuals to serve.

Count to 10 on October 17, 2010 at 3:00 PM

My wish, and I think the founders, would be that she can declare the law unconstitutional and send it back or declare it void. She should not be able to “re-interpret” it or order it done differently – that is congresses job by revoking or passing a new bill. Judges should not make law!

rgranger on October 17, 2010 at 3:21 PM

rgranger on October 17, 2010 at 3:21 PM

Uhm, exactly how is she ordering it ‘done differently’ – other than ‘stop that, it’s unconstitutional’?

Wind Rider on October 17, 2010 at 3:27 PM

Again, she has the power to declare a law unconstitutional…she ha no power to order a remedy from a coequal branch…

JIMV on October 17, 2010 at 4:01 PM

Uhm, exactly how is she ordering it ‘done differently’ – other than ‘stop that, it’s unconstitutional’?

Wind Rider on October 17, 2010 at 3:27 PM

It’s not the judicial branch’s job to enforce law. To strike down a law, on the basis of unconstitutionality or for whatever other reason, you have to be exercising executive powers.

gryphon202 on October 17, 2010 at 4:57 PM

Why does no one seem to understand that…I am amazed how many folk seem to have no idea what the separation of powers in the federal government means…

JIMV on October 17, 2010 at 5:17 PM

I have had past dealings with judge Phillips, and she’s as lying and devious as they come. Until congress gets a wild burr up their butts to clean en mass the federal bench with impeachments, nothing will ever change. The constitutional tool is there, but to try to make congress, who many are lawyers do it, is another vexing question as to who do they actually represent?

Most judges hide under the a make believe and self invented cloak of “judicial independence.” When people begin to put that phrase together, they than will better understand why judges are so Constitutionally crooked, and get away with what they do.

I always find it strange that Constitutional lawsuits are always against the Amendments, heard by the courts, and never against Article I, II, or III. If a citizen files a suit against the legislative, or executive branch, the court flips them off as NOT having standing. Note that no lawsuits are ever successfully filed against the judicial branch, I wonder why (eyes rolling)!

IMO, the whole federal judicial system is a sham, scam, and rubber-stamp monetary rip off, and is in dire need of an extreme overhaul.

Most people are oblivious to the fact, that in 1946, the federal courts stripped away the “grand jury” clause of the Fifth Amendment, and deviously incorporated it into the the Federal Rules of Criminal Procedures. Just ask the American Grand Jury who indicted Barack Obama, and made a present to a federal judge in the DC circuit, who then mocked them by saying, sure you have that right, but our rules trump you, and the Constitution. Where’s the congressional outrage?…Do I have to say anymore?

byteshredder on October 17, 2010 at 5:37 PM

“The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson to Abigail Adams, 1804. ME 11:51

JIMV on October 17, 2010 at 5:45 PM

To further poke fingers into the public’s eyes, I understand law school professors are teaching their students to NOT READ the Constitution, but instead, TO READ Supreme Court case law. That in itself should be a red flag as to how bad our Constitution has been usurped by the federal courts. Again, where’s the congressional outrage?

byteshredder on October 17, 2010 at 5:46 PM

Congress fears the Court, as the public believes the court can do anything at all, make any ruling. It is like picking a fight with the press…

JIMV on October 17, 2010 at 5:52 PM

Wind Rider on October 17, 2010 at 2:20 PM

Get a grip, Wind Rider. If you’re addressing me, you’re well off base. I have been at odds with the conservative position on more than one judicial ruling, precisely because I think the most important thing for the judiciary is staying within its bounds of authority.

On the rulings this summer not to lift the injunction on Obama’s moratorium on offshore drilling, I disagreed with the injunction and with the two rulings that refused to lift it. I thought that trend in jurisprudence was overstepping the judiciary’s bounds. But I agreed with the policy position represented by the judicial decisions.

Likewise, I agree with conservatives that the Kelo case was one in which eminent domain was misued. But I concur with SCOTUS in ruling narrowly on that, because it is NOT the job of the course to define the proper use of eminent domain. That’s the job of the legislatures. The court said as much in its majority opinion, and I agree with that, even though the original use of eminent domain in the Kelo case was egregiously wrong, from the standpoint of both morality and trustworthy government. The Court was right to decline to assume a definition of “public use” on its own authority, when the legislature had never defined it.

I notice, for my part, that the left was horrified by the supposed judicial malpractice of the two rulings against Obama’s drilling moratorium in the Gulf. But if it’s perfectly fine for a federal district court judge to order DOD to stop enforcing a policy, then it’s perfectly fine for a federal district court judge to order DOI not to enforce a moratorium. By that reasoning, Obama should have actively lifted his moratorium in June, after the first ruling, and ordered his agencies to cooperate fully in the resumption of offshore drilling.

J.E. Dyer on October 17, 2010 at 6:19 PM

the judiciary does not have the right in the constitution to judge the constitutionality of laws. they usurped that power with marbury v. madison.

its why we live in a judicial oligarchy, not a republic.

right4life on October 17, 2010 at 6:47 PM

So, so much fail in this topic. Fun read though.

crr6 on October 17, 2010 at 8:20 PM

The country needs to decide what it wants more, rule by elected officials or rule by our Robed Masters…as long as the public believes anything at all is OK if blessed by a Judge, the Constitution will be hit or miss…

Someone on another forum asked a simple question…when was the last time a court was told no when it overstepped its bounds or ruled illegally (I do not mean from other Judges through appeal, but by other branches of government).

As I cannot think of a single case I must assume that (1)such an instance of improper over reach has never occurred, or (2) It has happened but everyone else in government is too scared of the Courts to do anything about it.

Perhaps it is way past time to remind the court that they are also operating inside the limits of the Constitution.

JIMV on October 17, 2010 at 8:53 PM

It’s really interesting that everyone keeps repeating “she can’t dictate a remedy”, yet no one has pointed out exactly what remedy (other than to stop acting on a law she has ruled unconstitutional) was prescribed. He injunction against this would be no different than an injunction to stop collecting a poll tax (if that were the issue at hand). The ruling does not direct ‘do X instead of Y’ which would fit the definition of ‘remedy’.

Sorry if it’s really irritating that I’ve pointed out such a minor detail and spoiled all the tantrum fun.

The ‘remedy’ still remains the responsibility of the legislative and executive branches.

But, g’head, continue to insist I need to get a grip for saying that the world has not been turned upside down and vigorously shaken, which seems to be the point of a great deal of the exercising going on here.

Oh, and J.E – yeah, I guess we differ on the rulings about the drilling ban – the judge pointed out that the administration was speeding, partially by being in violation of their own procedural regs for such an action.

Sheesh, the strictures that BOTH the left and right would clamp on the judiciary when things don’t go their way would effectively render them about as useful to the operation of the government than, ida know, random commentors on the internet.

Wind Rider on October 17, 2010 at 9:32 PM

Someone on another forum asked a simple question…when was the last time a court was told no when it overstepped its bounds or ruled illegally (I do not mean from other Judges through appeal, but by other branches of government).

As I cannot think of a single case I must assume that (1)such an instance of improper over reach has never occurred, or (2) It has happened but everyone else in government is too scared of the Courts to do anything about it.

JIMV on October 17, 2010 at 8:53 PM

It has happened but it’s been a very long time. The Lincoln Administration did it in response to Writs of Habeas Corpus issued by the Court on behalf of civilians seized by the Union Army as traitors during the Civil War. I think the most famous case is Ex Parte Merriman, but I’m not sure.
The Jackson Administration also did it when the Cherokee Nation took the Federal Government to court to force them to honor a treaty signed by a previous administration. The Court ruled in favor of the Cherokee but Jackson simply ignored them with the sneer “Justice Taney has issued his writ, now let him enforce it!” or similar words. He then ordered his army to remove the indians to the west and thereby created the atrocity that went down in history as “The Trail of Tears”.

Lew on October 17, 2010 at 9:56 PM

The judiciary branch is wholly dependent on moral authority. It is technically the weakest branch of government if push comes to shove. If we can’t reign it in it will lose the authority it has.

Not good.

As J.E. pointed out, I have heard before that any two of the three branches of government working together are capable of overwhelming the third. I wonder if that is what we have here?

scotash on October 18, 2010 at 12:06 AM

To further poke fingers into the public’s eyes, I understand law school professors are teaching their students to NOT READ the Constitution, but instead, TO READ Supreme Court case law. That in itself should be a red flag as to how bad our Constitution has been usurped by the federal courts. Again, where’s the congressional outrage?

byteshredder on October 17, 2010 at 5:46 PM

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Perhaps because those rulings are the law in our common law system. You can’t study law or constitutional history without studying the rulings. The constitution is usually memorized by any serious law student.

Also, the judge ordered an injunction… it’s not like an arbitrary command as J.E. suggests in the DADT ruling. There is nothing unusual about a federal judge doing this and the history of such rulings is a longer than J.E. suggests. Even oral sex between a married couple is against the code which forbids sodomy so it’s rather funny that the sodomy rule is rolled out as potential issue related to the matter. The code itself is under review and I would think they will need to craft something a little more realistic.

lexhamfox on October 18, 2010 at 1:42 AM

I am not a lawyer, only an inquiring mind that wants to know:
1) are all federal judges appointed? can they be un-appointed, if so, for what reasons? would it then fall to the people ie., the governed to petition for removal? how does that work?
2) chain-of-command ie., commander-in-chief; does this still apply? especially with congress’s approval?
3) as to the sodomy thing, didn’t the supreme court rule on this on the Texas case? if I’m right about TX, does the SCOTUS’s ruling then apply nationally? even militarily?

All very interesting comments. It’s been an education. Thanks.

valianthunter on October 18, 2010 at 2:50 AM

The courts and judges used to stay out of the military way, but not anymore, it seems. If they can force soldiers to read Miranda to terrorists and force foreign-enemies into civilian courts in the U.S., than they have more power than the President who is supposed to be the Commander In Chief of our forces. Since he is such a goofball, it looks likes all bets are now off!

shorebird on October 18, 2010 at 4:00 AM

Judges and lawyers have become mystical high priests.

Who in hell gave them this kind of authority, where they strike down law as if they were divine?

The Constitution is not difficult to understand and it was written that way, for a purpose. So that we, the people could understand the law of the land.

No more. We have mystics who hallucinate nonsensical rulings and they fully expect us to comply with them.

How many divisions does the judiciary have? We may soon find out.

NoDonkey on October 18, 2010 at 8:07 AM

the judiciary does not have the right in the constitution to judge the constitutionality of laws. they usurped that power with marbury v. madison.

its why we live in a judicial oligarchy, not a republic.

right4life on October 17, 2010 at 6:47 PM

I’ve been preaching this for years. The general public simply assumes that it is the “job” of the judiciary to determine what is and what is not constitutional. This is NOT a power given to the judiciary by the Constitution – which is supposed to be the foundational document setting forth how our government is supposed to work.

The “power” to interpret the constitution was usurped by the judiciary in Marbury vs. Madison and had not really been challenged since that blatant power-grab was handed down in the form of a judicial “ruling”. Unfortunately, this has given the unelected, unaccountable, federal judiciary what is, for all practical purposes, the power of an absolute oligarchy. This has left the “people” with no real way for their representatives (congress) to actually carry out the will of the people – which is a fundamental requirement of a republican form of government.

It can be legitimately argued that SCOTUS acted in defiance of the Constitutional guarantee of a republican form of government by taking for itself the ultimate power of “interpreation”, (a power more properly wielded by Congress – which is subject to the will of the people in the form of elections!). Until the public is educated (not likely to ever happen), or until Congress finally has had enough and says no to the Supreme Court, we will live under an oligarchy and NOT in a Democratic Republic (as was the original intent behind the founding of this nation)!

Fatal on October 18, 2010 at 12:56 PM

It’s really interesting that everyone keeps repeating “she can’t dictate a remedy”, yet no one has pointed out exactly what remedy (other than to stop acting on a law she has ruled unconstitutional) was prescribed. He injunction against this would be no different than an injunction to stop collecting a poll tax (if that were the issue at hand). The ruling does not direct ‘do X instead of Y’ which would fit the definition of ‘remedy’.

Wind Rider on October 17, 2010 at 9:32 PM

If I show up at your house and tell you to stay inside under threat of punishment, have I ordered you to do something? How is it different when a court does the same thing with as little legal enforcement power as I, Joe Citizen has? Your distinction is without a difference…ordering another branch of government to do or not do something is beyond the scope of that Judges power under the Constitution.

JIMV on October 18, 2010 at 1:19 PM

Well, the executive can do what President Jackson did and ignore the decision or the legislative branch can impeach the judge. Impeachment is not used enough in cases where judges overstep their bounds and mis-interpret the Constitution. Perhaps this should be the first act of the new Republican Congress.

federale86 on October 18, 2010 at 2:09 PM

This has to be the most ridiculous article that I have ever seen on here and to be honest anyone that manages to make it though this pos should realize it. It is a far cry from a judge ordering that something is unconstitutional to a judge ordering the implementation of retirement funds. For the first thing a federal judge is well within their legal boundaries to try the constitutionality of a federal law (which DADT is) nor should it concern any citizen that they can do this. After all that is their sole purpose, than their rulings are reviewed and if need be appealed. Should all congressional law be sacrosanct? Any review of history will show you a plethora of stupid, illegal, unconstitutional, and down right discriminatory laws. The purpose having the rights that we have enshrined in as rights and not laws is that the laws must bend to them, not the other way around.
A judge does not have to make the rules or explain how you are going to solve a problem, especially in this venue, a judge was tasked with trying the constitutionality of a particular law, that law was found to be in violation and she invalidated it, if the judge was a true activist judge they would try to make a different plan but that is not their role.
Now after reading all of your post here I have just one question, where did you learn about the law?

Zekecorlain on October 18, 2010 at 3:16 PM

Now after reading all of your post here I have just one question, where did you learn about the law?

Zekecorlain on October 18, 2010 at 3:16 PM

I could tell you that I learned about the law while graduating Summa Cum Laude from a top 10 law school, actually being a professor of constitutional law (unlike our President) and then practicing law for nearly 20 years, but there is no way for me to prove that to you, is there?

For the first thing a federal judge is well within their legal boundaries to try the constitutionality of a federal law (which DADT is) nor should it concern any citizen that they can do this.

They are withing their “legal” boundaries only because SCOTUS says they are, not because the constution delegated this power to the federal judiciary. Since it is not a constitutional delegation of authority, I would disagree that citizens should not be “concerned” that they can do this. I am very concerned since the only unelected (and nearly unaccountable) branch of government bestowed upon themselves ultimate power – giving themselves the ultimate veto and denying the citizens of this nation a true Democratic Republic despite the best intentions of the founders.

Nothing to see here folks, no reason to concern yourselves, move along, move along – oh look, a new I-Phone!!

Fatal on October 18, 2010 at 6:06 PM