PRESERVE, PROTECT and CONDEMN
by
FRANK M. GENNARO

"Preserve, Protect and Condemn explores the future of government controlled healthcare in America. The bad news is that you might not have one."

FRANK ON FRIDAY – When Judges No Longer Judge

More than 50 years ago, Bob Dylan sang that the times they are a changing.  Well, the times surely have changed, and not for the better.  There was a time, not so very long ago, when the media, then known as “the Press,” served to keep the government honest.  They doubted, they questioned, and when they uncovered chicanery or deception, they exposed it, on the basis that sunlight is the best disinfectant.  That changed, though.  About 25 years ago, Bill Clinton succeeded in changing the word “lie” to “spin.”  The Media embraced that change.  After that, the same Media which had bemoaned LBJ’s “credibility gap,” no longer was troubled by lies by Presidents of whom they approved.  The Fourth Estate thereupon became a Fifth Column.  From that point on, the truth was supposed to be whatever the Media claimed it to be.  As bad as was that change, however, we still were able to take solace in the law.  No matter what, justice would be done.  Our judges would see to it.  The Latin phrase is Fiat justitia ruat caelum, which means “let justice be done though the heavens fall.”  But, not anymore.  Leftists today seem to like Alexander Hamilton.  Of course, that’s because they only know the Broadway play.  I wonder what the Left would think about the real Hamilton?  In the Federalist Papers, Alexander Hamilton referred to the judiciary as the least dangerous branch of government, stating that judges under the Constitution would possess “neither force nor will, but merely judgment.”  Ah, those were the days.  Judges were to say what the law is, and not make policy.  This is because judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.  The Constitution separated the powers of the government into three parts.  The Congress makes the laws, the President enforces the laws, and the courts ensure that the laws do not run afoul of the Constitution.  This separation was essential, the Founders knew.  James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  There has been conflict among the branches in our history, mostly between the Legislative and the Executive, but now, the Judiciary, Hamilton’s “least dangerous branch,” is disposed to tyranny.  President Trump issued Executive Orders suspending the entry of aliens from 7 nations which present a terrorist threat to America.  The President has plenary (complete) power when it comes to national security.  Congress is empowered to control immigration, but has given the President statutory authority to limit the entry of any aliens he finds to be a danger, and to do this by proclamation.  That is what President Trump did.  The Trump Orders  were virtually identical to Orders issued by Il Duce Obama in 2012 and 2016, and which involved some of the same countries covered by the Trump Orders.  The 9th Circuit Court continued the restraining order against the Trump Orders issued by the District Court in Seattle.  The Court did this without mention of the President’s constitutional authority, and without mention of the statute (8 U.S.C. 1182) that gives him the express and unambiguous authority to issue his Orders.   Instead, the Court said it disagreed with the policy, which is not the job of that Court or any court.  The District Court Judge in Seattle ruled that the government had not presented sufficient evidence to prove the 7 countries in the Orders to be a threat.  Apparently this “so-called” judge does not watch the news.  In so doing, the “so-called” judge was not a judge at all, but rather a partisan, advancing his own agenda.  The “so-called” judge actually quizzed the government’s attorney about how many persons from the affected countries had been arrested for terrorist acts, and concluded that he already knew that there had been no arrests.  Apart from being factually incorrect, evidence as to arrests also was irrelevant.  The government attorney took heat from ignorant critics suggesting that she was unprepared.  She wasn’t unprepared.  She had no information about arrests for two good reasons.  First of all, neither the attorney  nor the judge should be privy to national security information about ongoing threats from people in the 7 affected nations.  And secondly, proof of the existence of such threats was not required to uphold the Orders.  The “so-called” judge decided that he, and not the President of the United States, should be responsible to determine whether national security required a temporary suspension of entry of persons from the specified countries.  As noted above, the Congress has wisely vested this authority in the President.  Moreover, even absent this statutory authority, a President’s inherent constitutional powers, as Commander in Chief, vest decisions of this kind solely in the Executive.   Without expressly saying so, the “so-called” judge in Seattle has ruled unconstitutional both the President’s Executive Orders and the statute explicitly granting such authority to the President.  That would be bad enough, but in doing what he did, the “so-called” judge adopted a standard by which a President may not stop terrorists from entering the United States until or unless a court is satisfied that we already have been victimized by terrorist acts.  The notion that we should not be permitted to close the barn door until after the cow has burned down the barn is a dangerous and absurd view of the Constitution, the law and role of the judiciary.  Simply put, the “so-called” judge in Seattle either is ignorant of his proper role or has ceased to be a judge and now fancies himself a tyrant.  Either way, he should not be sitting on the bench.  He ought to be impeached.

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