What Happens When the Judiciary Gets Too Hot?

A District Court Judge in Hawaii unilaterally expanded the Trump travel ban nation wide.  This even after the Supreme Court enjoined the same judge’s decision striking down the initial ban.  This isn’t the first time in our history that a member of the Judiciary has conflicted with the Executive.  The Judiciary wasn’t created to be the almighty checkers of executive and legislative authority.  Sometimes the checkers need to be checked.  And when they are the consequences are heavy.

Justice Taney’s Decision That Sparked The Civil War

Justice Taney is the infamous Judge that wrote the majority opinion for the Dread Scott case.  If you’re unfamiliar with the case, Dread Scott was a man who escaped escaped slavery in the south by running away to Illinois.  His former master brought suit to regain his ‘property,’ but Scott claimed that he and his wife were free since slavery was illegal in Illinois.

The Supreme Court ultimately decided that blacks weren’t citizens of the United Stated, thus nullifying the Missouri Compromise and unilaterally deciding the question of slavery for the whole country. The 13th Amendment was even made to permanently reverse this horrible Supreme Court decision.  Oh and the country had to fight a Civil War.

This wasn’t the only time Justice Taney clashed with the Lincoln.  In Ex Parte Merryman Taney held that the writ of habeas corpus could be suspended only by legislation and not by presidential order.  Thereby limiting the powers of the executive.  Lincoln pretty much ignored this court oder and Taney died old and broke.  His name forever remembered as the author of the most racist court decision in American history.

The Hawaii Court Order

A judge in Hawaii summoned the spirit of Taney when he not once, but twice, overturned the President’s travel ban!  Even though the President’s authority came  directly from congress via 8 U.S. Code Section 1187.  The Judges reasons?  Because Trump said in his campaign that he would institute a moratorium on taking in Muslim refugees.

The Hawaii judge was forced to use this reasoning since the executive order itself mentions nothing about religion.  Oh and apparently the Constitution applies to non-United States citizens.  Except when it comes to torture or habeas corpus.

Perhaps President Trump can avoid an all out civil war by applying tactics used by President Roosevelt.

The Fight Over The New Deal

When FDR became president the United States was amidst a sever financial depression.  The people elected him in hopes of pushing America back into stable financial times.   FDR had a major roadblock in his way however.  The Supreme Court.

The President became frustrated when the Supreme Court struck down several key pieces of New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority to the executive branch and the federal government.  He the pushed Congress to add to the number of Supreme Court Justices, thus enabling his agenda.

The Supreme Court were threatened and ultimately upheld the National Labor Relations Act and the Social Security Act. The Judiciary officially gave the green light  on an expansion of Executive Authority.  This was just the beginning however, since by 1942 all but two of the justices were his appointees.

What would our founding fathers say if they knew that a District Court Judge could contradict not only the Executive, but the Legislature?  History does not suggest the Judiciary will be proven right, after all, the Executive is the one with an army.

No court is higher than the times. But the judiciary is quickly losing touch with the country.  Federal Judges may be appointed for life, but it is usually the President that’s closer to the people.  And it will be the people who decide our immigration policies.

Lincoln and Taney

  • Demetria