Our superlegislature

Supreme_Court_of_the_United_StatesNeil Gorsuch was sworn in, informally, and has joined the Supreme Court.  A more ceremonial swearing in will take place later.  But he is already on the job, in time to hear some important cases.

In a column on the “nuclear option,” Charles Krauthammer observes that the Supreme Court has been turned into a “superlegislature.”  Liberals especially are looking to the court to achieve their political ends.

Liberal judicial theory says that the courts should honor “evolving social norms.”  But surely, Krauthammer says, elected representatives are in a better position to reflect evolving social norms.  Constitutionally, the judicial branch should instead be keeping all of these evolving social norms within the parameters of the Constitution. [Read more…]

Judge blocks Trump’s new travel ban

Derrick_K._WatsonPresident Trump’s new travel ban, revised to eliminate the legal difficulties that a judge found in his first order, has also been thrown out by a federal judge.

A Hawaii federal court blocked the ban, which was to go in effect today.

The judge said that Trump’s campaign comments about Muslims show that the restrictions on travel or immigration from six terrorist-infected countries have the true purpose of discriminating against a religion.

But if the target is Muslims, why aren’t Muslims from the rest of the world blocked?  Why just those six countries?

It seems strange to me that a judge insists on interpreting a policy according to  campaign rhetoric.  This, even after the policy was revised to remove the apparent connection.  What if the president had a complete change of heart about things he said in the heat of the campaign?  Would his policies still be interpreted according to what he said back then?  I just don’t understand how legally the effusions of a campaign speech can have the force of law in determining the meaning of a statute.

Photo of Judge Derrick K. Watson, by United States District Court for the District of Hawaii [Public domain], via Wikimedia Commons

[Read more…]

Overriding Obama’s veto so victims can sue Saudi Arabia

Congress passed a bill allowing 9/11 victims to sue Saudi Arabia for enabling some of its citizens to carry out the attacks.  But President Obama vetoed the measure, saying that it would violate the principle that sovereign nations are immune from foreign lawsuits by private citizens and will open the United States to similar suits.

Yesterday, in a rare show of bipartisan unity, Congress overrode the veto.  That requires 2/3 of the vote, but this override was 97-1 in the Senate and 348 to 77 in the Senate, as Democrats voted against their own president.

That’s satisfying emotionally, but is it wise for Congress to interfere in foreign relations, traditionally the domain of the Executive Branch?  And is it wise to throw out sovereign immunity?  Won’t this jeopardize American military, intelligence, and diplomatic operatives, as well as claims from foreign citizens who don’t like us against the nation as a whole?  Or is it worth the risk to get back at Saudi Arabia? [Read more…]

Congress approves war with ISIL with little debate

Congress signed off on President Obama’s plan for an air war against the Islamic State, both in Iraq and in Syria.  The war authorization was attached to a budget bill, and it passed both the House and the Senate on a bi-partisan vote with virtually no debate.

The last two times we entered a war in Iraq, Congress held extensive hearings and debates.  But not this time. [Read more…]

Supremes reject Obama’s “recess” appointments

The Constitution’s balance of powers is re-asserting itself.  President Obama had been appointing officials that need Senate approval by doing so during holidays when Senators were out of town.  Since the Constitution allows for temporary appointments when the Senate is in recess (back when the Senate was a part time body with long periods between sessions), the President claimed these short holiday breaks constituted a “recess,” even though the Senate was still in session.

The Supreme Court has ruled–unanimously!–that these appointments  are illegal.  The Judicial branch is reining in the Executive Branch in its attempts to exert its power at the expense of the Legislative branch.  The Constitution still works. [Read more…]

When the president does it, it’s not illegal

Those who oppose Obamacare may well be glad that the President keeps delaying the implementation of parts of the law (namely, the employer mandate and the limits on out-of-pocket expenses).  But there is a deeper issue:  The law says that these measures are to go into effect in 2014.  But now the President says, “no they won’t.”  By what authority can the President just change a Constitutionally-enacted law?

George Will says that the President’s increasing habit of by-passing Congress, ignoring laws, and legislating by Executive fiat is an example of the flagrantly unconstitutional principle affirmed by Richard Nixon :  “When the president does it, that means it is not illegal.” [Read more…]