Judicial Politics Writ Large

UPDATE: For the second time the 9th Circuit has reversed District Court Judge Jon Tigar. The U.S. Supreme court also just found in Trump’s favor on Immigrant Asylum. The have to seek Asylum in the first country the step into. That will usually mean Mexico.

A long-standing rule of Constitutional and Common Law jurisprudence is that courts may hear and decide only cases and controversies. Political issues and questions are beyond a court’s jurisdiction. Political issues belong to the political branches of government. In America that is the executive and the legislative branches, i.e., the President and Congress.

I’m glad I went to law school in the 1970s. Believe it or not politics was not centerstage back then. Now it’s everything, everywhere, every time. You’d think this new world order of everything being political would have greatly reduced the docket of most courts, since courts have no jurisdiction over political questions.

Alas, that’s not what has occurred. The courts, especially federal courts, have jumped right into the political fray and now make ruling after ruling that would have never stood scrutiny a few decades ago.  A few decades ago Justice John Roberts would have come under fire for re-writing Obamacare so it would pass Constitutional muster. As written the individual mandate was unconstitutional. Congress has no authority to force anyone to buy anything they don’t want. Roberts got around that by claiming the mandate was actually a tax even though Obama and his minions had publicly claimed it was not a tax.

Roberts thus showed himself no different than any other renegade judge willing to help one party in a contract dispute by interpreting the contract in a way that patently contradicts what the parties had mutually agreed upon at a time before the dispute arose. Clearly the drafters of Obamacare did not intend the mandate to be a tax. Obama said as much. That didn’t stop Roberts from taking a politically partisan stance to read into the document something other than what was actually written.

Justice Roberts, you may recall, started a fight with Trump over his referring to some judges as “Obama Judges.” Roberts said there are no Obama Judges or Bush Judges, or Trump judges, just hard working public servants trying to do their job. Roberts was appointed to the Court by George W. Bush, so he was a Bush Judge if all that label does is identify which president appointed him.

Roberts can now be referred to as an Obama judge in the sense Trump said it because he overstepped his authority to sustain Obama’s signature legislation. A bit of irony there, Justice Roberts claiming there is no such thing as an Obama Judge when he now is an Obama judge.

Roberts would have been correct if he had said there should not be any Obama Judges or any other sort of judge if it means he will misinterpret the law in order to find in favor of which ever side of the dispute he personally favors. That always means the judge is following and being guided by something other than the rule of law.

If judges were impeached for such conduct we’d be in danger of running out of judges. No, we would not. If judges were impeached for such conduct they would not engage in that conduct, or more likely they’d find a way to hide it. Some try mightily to do that now.

Let’s go back to the 1970s and why I say it was not such a political quagmire as we see presently. Back then, so long ago it seems, there was a sacred rule that what a court does without jurisdiction was a nullity. No one was bound to follow a judge’s order if the judge lacked jurisdiction to make that order. This reminded me of the military where the troops are not bound to follow an illegal order from an officer who outranks them. Of course, you must be correct about the order being illegal.

There are two kinds of jurisdiction, both of which must be present in every case.

Subject matter jurisdiction says that the court must have jurisdiction over the subject matter of the case or controversy. Some courts have general jurisdiction on a wide range of claims and issues. Other have limited jurisdiction that extends only to specified matters. Such a court cannot hear a case involving subject matter beyond its jurisdiction. The U.S. Tax court cannot decide divorce cases. A state court of general jurisdiction cannot decide a case involving an IRS claim against a taxpayer.

The second is personal jurisdiction. No court can hear a case against an individual or a corporation unless that individual or corporatation can be found within the state where the court is located. If the individual or corporation resides outside the state but because of his own voluntary actions he has significant contacts with that state, then the court may have personal jurisdiction over him.

What does this have to with political questions and matters? We know courts are not supposed to take cases that involve political questions. Is that a jurisdictional matter, specifically is it subject matter over which the court must be able to lawfully assert jurisdiction? I say it is. Since the court cannot legally claim jurisdiction over political questions, every time a court rules on political issues that are the sole province of the political branches, any such ruling should be held a nullity. It can therefore be ignored.

Why do courts want to take cases involving political questions? Because if no one objects they will, with their rulings, enacted policies that their friends in the Democrat party can’t because they don’t have the votes for it. That makes the courts complicit in Democrat corruption.

All bar associations tend to be liberal. They all say they support an independent judiciary. No, they don’t. They support a judiciary that will help them win political battles they would otherwise lose. That’s not an independent judiciary. That’s a judiciary steeped in partisan politics. And that’s a corrupt judiciary.

If the court is not supposed to hear a case involving political questions then the court has no subject matter jurisdiction over such a case and should decline it. Of course, if there are other issues in the case the court can hear and decide those issues but only if the judge is willing to keep the political questions out of the case, and only if that is possible.

America’s asylum laws say that a person seeking asylum on grounds of persecution in another country must prove they have been or will be persecuted in one of five ways:

  • Race.
  • Religion.
  • Nationality.
  • Membership in a particular social group.
  • Political opinion.

Almost none of the illegal immigrants streaming across the Southern border are eligible for asylum in the United States because they cannot show persecution under one the five categories. Seeking economic advantage is not grounds for asylum.

Because illegals must be given a hearing which might not occur very soon they are given a date for which they must return to have their asylum claimed adjudicated. Once released into the USA most never return for their hearing.

Trump rec’d approval to use the European Union Asylum law to force asylum seekers to apply in the first country they entered after leaving their home country. There was a court challenge which Trump won in the 9th Circuit Court of Appeals.

Judge Jon Tigar

After winning a decision in 9th Circuit, renegade Federal Judge Jon Tigar in Oakland has blocked the Trump Administration’s asylum reform on a national level. Thus, a border jumper from Central America seeking asylum in the U.S. cannot be made to seek it in the country they first stepped into. i.e., Mexico.

This is clearly a matter of asylum law. Federal officials have discretion to make rules and regulations at the border as they deem necessary to protect our borders. Making an asylum seeker go the first country he entered is reasonable if that country is a country in which he will not suffer persecution. Mexico qualifies, it does not persecute asylum seekers.

Judge Tigar made his ruling applicable nationwide. Did he have the jurisdiction to do so?  Here is what Attorney General William Barr recently wrote in the Wall Street Journal:

… Under Article III of the Constitution, courts are supposed to apply the law to the parties before them – not to thousands or millions of third parties. The Framers rejected the idea that the courts should act as a “council of revision” with sweeping authority to reach beyond concrete controversies and rule on the legality of actions taken by the political branches. Moreover, the power of federal courts to issue injunctions derives from English practice, which allowed courts to restrain a defendant to the extent necessary to protect the rights of the plaintiffs in the case. Nationwide injunctions are a modern invention with no basis in the Constitution or common law.

Nationwide injunctions are also inconsistent with the mechanism the law recognizes to provide relief to nonparties: a class action, in which class members are bound by the result, win or lose, unless they opt out. Nationwide injunctions, by contrast, create an unfair, one-way system in which the democratically accountable government must fend off case after case to put its policy into effect, while those challenging the policy need only find a single sympathetic judge…

So Judge Tigar is wrong on two counts. He had no jurisdiction is the first place because asylum laws are made and enforced the political branches. Secondly, he has no power over anyone not a party to the case that was before him.

It’s time to tell renegade judges to stay within their jurisdictional boundaries and to stop trying to be dictators. Judge Tigar, by the way, is an Obama Judge.

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