One could say that perhaps certain members of the judicial branch of the government established in Article III of the Constitution have forgotten about our system of checks and balances and the separation of power doctrine so unique to our system of government. According to Lawctopus.com, our tripartite model of governance has its origin in ancient Greece and Rome but our founders also studied the enlightenment philosophers John Locke and Charles Montesquieu who had a profound effect on the democratic government the founders produced.
Still from Lawctopus.com, under Montesquieu’s theory government powers are of three kinds: legislative, executive and judicial “and that each of these powers should be vested in a separate and distinct organ, for if all these powers, or any two of them, are united in the same organ or individual, there can be no liberty.” What emerged from this theory was a system of government in which its powers are divided between multiple branches, each branch controlling a different aspect of government none of which are to infringe upon the powers of the other.
The role assigned to judges in our system is to interpret the Constitution and lesser laws, but not to make laws from the bench — and unless judges are bound by the text of the Constitution, we become of a government of the men and women who are judges, and not a government of laws.
In a very recent ruling U.S. District Court Judge John Bates in Washington D.C. demonstrated that it appears we are no longer a government of laws, but of men with their own personal ideologies and opinions. Executive orders are not allowed to create new law and do not bind successive presidents. President Obama’s DACA (“Deferred Action for Childhood Arrivals”), executive amnesty for illegal aliens violates both federal law (8 USC 1225(b)(2)) and the United States Constitution. Shockingly, Bates ruled that President Trump is prohibited from repealing this DACA executive amnesty and furthermore ruled the President must continue this illegal amnesty in the future. This is judicial overreach and a slap in the face to the separation of powers doctrine and definitely threatens our liberty.
Interestingly, under Article III federal judges are not guaranteed positions for life but only during “good behavior.” This ruling by Judge Bates unless and until challenged will somehow be considered good behavior regardless of the fact that he has seized the role of policy maker. Members of the judiciary have become untouchable and actions like this make it more likely judges will consider themselves untouchable. Sure they can be impeached, but rarely are. Of thousands of federal judges, only one Supreme Court Justice has ever been impeached, though not convicted, and only 14 lower court judges have been impeached with only seven convictions.
I just do not see that much “good behavior” from judges these days. Rita Dunaway writing for Convention of States has said “Thanks to the idea that we live under an ‘organic Constitution’ whose meaning changes with the times, many federal judges today are not so much neutral arbiters as they are linguistic contortionists, twisting the black-and-white words of our Constitution to accommodate shape-shifting societal values.”
Remember, the Constitution and especially the Bill of Rights were written to protect the individual and limit federal power. In the hands of federal judges like Bates, the Constitution cannot effectively limit government power or protect our individual freedom.
The two federal judges who blocked the president’s travel order are another example of this overreach and the Supreme Court will soon likely set them straight in that matter. Imagine as well the thinking that persuaded a judge to sign off on a warrant to seize the records of the attorney of a sitting US president.
The Judiciary must be checked. As always, the first step in solving a problem is to acknowledge its existence, and I’m not sure as a country we’ve done that yet.
As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U.S. Constitution go to: www.freeconstitutioncourse.com.
Mikie Kerr is a constitutional enthusiast who lives in Waikoloa and writes a monthly opinion column for West Hawaii Today.