Judges are out of control, and our Constitution provides means to reign them in. It’s time we start.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article III Section 1
Constitution of the United States
The months since Donald Trump assumed office have seen multiple abuses of judicial power. District judges have issued injunctions on presidential executive actions, including reductions in force of multiple executive agencies, ending so called “diversity, equity and inclusion” programs, and deporting illegal aliens back to their home country.
I’m glad to see the administration has basically told many judges to (politely) “pound sand,” it shows how a major issue is brewing. What are the limits of judicial review of the other branches of government?
No where in the Constitution is “judicial review” established or defined. The doctrine was established by the Supreme Court in the 1803 case Marbury v. Madison. Then Chief Justice John Marshall led the court in ruling newly inaugurated President Thomas Jefferson must honor the appointment of multiple justices made by former President John Adams as he was leaving office. Writing for a unanimous court, Chief Justice Marshall“ held that the validity of a commission existed once a president signed it and transmitted it to the secretary of state to affix the seal,” that Marbury had a right to the commission as it was approved in accordance with the law at the time.
A clear concept, but the courts have shown themselves unsteady guardians of the rights of the people. In Plessy v. Ferguson, a majority of the Supreme Court affirmed racial segregation as long as it was “separate but equal.” That abuse of the 14th Amendment’s guarantee of “equal protection of the laws” was not remedied until 1954’s Brown v. Board of Education, which specifically said, “the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The Korematsu v. United States decision affirmed the power of then President Franklin Roosevelt to intern Japanese Americans and Americans of Japanese descent for the crime being Japanese Americans and Americans of Japanese descent (which was repudiated in “Trump v. Hawaii (2018), the Supreme Court…effectively overturned the Korematsu decision, characterizing it as ‘gravely wrong the day it was decided’ and ‘overruled in the court of history.’”
So courts are not infallible. Just surprising, they are composed of fallible men and women, far too many come to the courts not to judge if an action is within the limitations of the Constriction, but to impose a leftist agenda. That brings us to one of the latest abortions of law,
An O’Biden appointed jurist declared people have a “right” to serve in the armed forces. By that, Ms. Ana Reyes (I will not insult honest jurists by referring to this charlatan as a judge) agreed with the plaintiffs that the “ban on transgender service members violates the Due Process clause of the Fifth Amendment by discriminating against people ‘based on their sex and based on their transgender status.’”
Looking at the 5th Amendment, ensuring the rights at trial, the pertinent clause is, “…nor be deprived of life, liberty, or property, without due process of law…” I can say un-boastfully I have a journeyman’s knowledge of the Constitution, plus I have a decent ability to read, write, and comprehend the English language, so I’ll ask the question. How has a transexual “person” been denied “life, liberty or property” by not being allowed to serve openly in the armed forces?
There is no “right” to serve in the armed forces. The military multiple requirements for service, such as minimum and max ages, limits on physical ability, or certain medical conditions (e.g., Asthma, Diabetes, heart conditions, certain mental health disorders. or being too tall or short). Yes, “gender identity dysphoria” is a mental illness (changed under pressure to “gender dysphoria” in 2013). Therefore it’s within the purview of the Pentagon to say it’s a disqualifying condition for military service.
Not that it impressed Ms. Reyes. For a woman who has never served in the service, she seems to know what is best for it, and what doesn’t hamper it. From Law and Crime’s report on the court hearing:
“At one point, the judge (Ana Reyes) asked (US DOJ Attorney Jason) Lynch to explain how the use of pronouns would impact military readiness or capability.
The lawyer essayed a quick: ‘I don’t —’
But Reyes immediately cut him off.
‘Because it doesn’t,’ the judge said, according to the Washington Post. ‘We all have a lot bigger problems than pronoun use. We have a military that is incompetent, if that is the case. Any common sense rational human being knows that it doesn’t. It is pretext. It is frankly ridiculous. If you want to get me an officer of the U.S. military who is willing to get on the stand and say that because of pronoun usage the U.S. military is less prepared [ …], I will be the first to give you a box of cigars.’”
Gee Ms. Reyes, you seem rather “partial” in your view. I think the American Bar Association should have an issue with you. From the ABA’s Model Code of Judicial Conduct (emphasis mine):
CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Ms. Reyes, I think you have gone well beyond “the appearance of impropriety.” I think you’ll give used-car salesmen and shyster real-estate agents a bad name.
But back to the beginning of the article, the Constitution does not give the Judicial branch any authority over military matters of the United States. Article I gives Congress the power to “To declare War,…raise and support Armies, To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;…” Article II states the President “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The Uniform Code of Military Justice allows servicemembers to appeal criminal convictions because the Congress authorized that.
If the staffing of the armed forces is subject to military review, what else should be then? Was the declaration of war not proper on December 8, 1941? Is Congress spending too much money on the Pentagon, or not spending it property? Are the race and sex quotas (not hyperbole, General Brown is gone, but his minions are still there) set by the Pentagon not enough? Can a judge invalidate a treaty negotiated by the president and approved by 2/3s of the senator’s present? Nothing says a court can’t, right?
Ms. Reyes’ abuses of power is just the latest in a long streak of usurpations by the judicial branch that must be handled. What is to be done? Congress can limit the ability of courts to review these matters by legislation. Congress can simply remove the court from the judicial system and declare the previous rulings void, and this action not reviewable. But judges must be brought back to their jobs of determining if an executive or legislative action specifically violations one of the restrictions, not “find” rights (see Roe v. Wade) or engaging in judicial gaslighting (e.g., the Obamacare ruling).
There is an implied tension in the Constitution between the Congress and the Presidency. Who is first among equals? That is proper as the government ebbs and flows, and different times call for more assertion from the legislative or executive branch.
However there is no question of who least among equals, and that is the judicial branch. Both the Congress and President have to face the voters regularly and as such, they are answerable to the people. The courts have no such restriction and therefore are not as answerable for their abuses of power (the last federal judge was impeached in 2010 for falsifying financial statements), or to the citizens who confer power upon the government. Legislative actions (e.g., passing laws that are not reviewable by the courts, modifying or eliminating courts) or constitutional limits (term or age limits for judges) are just some of the ways we can restore balance to the government from judicial tyranny.
Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.
Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.
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