Thursday, May 4, 2017

Geese and Ganders

Donald Trump is furious at the federal courts, particularly the left-leaning Ninth Circuit Court of Appeals. He’s telling the world that he will find a way to break up that court into two or three smaller circuits, where, not-so-coincidentally, he will get to appoint enough new judges to turn the resulting appellate circuits into rubber stamps for his policies… or so he believes. We’ve been here before.
“On February 5, 1937, President Franklin Roosevelt announces a controversial plan to expand the Supreme Court to as many as 15 judges, allegedly to make it more efficient. Critics immediately charged that Roosevelt was trying to ‘pack’ the court and thus neutralize Supreme Court justices hostile to his New Deal.
“During the previous two years, the high court had 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. Flushed with his landslide reelection in 1936, President Roosevelt issued a proposal in February 1937 to provide retirement at full pay for all members of the court over 70. If a justice refused to retire, an ‘assistant’ with full voting rights was to be appointed, thus ensuring Roosevelt a liberal majority. Most Republicans and many Democrats in Congress opposed the so-called ‘court-packing’ plan.” The Senate, including a number of FDR’s supporters, thought this was a terrible idea and rejected the plan by a vote of 70 to 22.
During the Obama administration, in an effort to contain what too many Republicans felt was an imperious president addicted to over-reaching executive orders, the GOP turned to the self-same federal courts – yup, the same courts that have rejected Trump’s Muslim travel ban and usurped his attempt to cut funding to sanctuary states and cities that did not play ball with his executive orders to detain immigrants accused of violating any laws regardless of seriousness. By all accounts, those anti-Obama GOP efforts were pretty successful.
Republican officials had great success under President Barack Obama in persuading judges to block or complicate his efforts to expand health care, shield immigrants from deportation and protect transgender students. Now Democratic officials are using the principles established in those cases to frustrate President Trump’s efforts to limit travel from predominantly Muslim countries and to punish so-called sanctuary cities.
“Both sides have shown remarkable dexterity in their understanding of the law, abruptly switching positions on issues like whether states have standing to sue, whether individual federal judges may issue nationwide injunctions and whether a federal threat to withhold funds can amount to a constitutional violation.
“Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. ‘Whatever California can do to resist immigration law,’ Professor Blackman said, ‘Texas can do to resist environmental laws.’…
“[On April 25th], Judge William H. Orrick of Federal District Court in San Francisco relied on a 2012 Supreme Court decision allowing states to opt out of the Affordable Care Act’s expansion of Medicaid. That ruling, which added major complications to the rollout of the health care law, was popular with conservatives.
“The decision, National Federation of Independent Business v. Sebelius, was best known for sustaining a central provision of the law, its individual mandate. But the court also ruled that Congress may not impose significant new conditions on existing federal funding, a position pressed by states led by Republicans.
When the case was argued, Justice Antonin Scalia, who died last year, highlighted the political realities of the opposition to the Medicaid expansion. ‘Is there any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?’ he asked… ‘There’s a correlation, Justice Scalia,’ said Paul D. Clement, a lawyer for the states challenging the law, to laughter.
“On Tuesday [4/25], Judge Orrick said the principle established in 2012 applied to the Trump administration’s threat to withhold federal money from localities that refuse to aid efforts to deport undocumented immigrants… ‘The Supreme Court concluded that the Affordable Care Act’s threat of denying Medicaid funds, which constituted over 10 percent of the state’s overall budget, was unconstitutionally coercive and represented a ‘gun to the head,’ ’ Judge Orrick wrote. ‘The executive order threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on which the counties rely. The threat is unconstitutionally coercive.’…
“In cases concerning Mr. Obama’s initiatives on immigration and transgender rights, individual judges in Texas concluded that nationwide injunctions blocking them were warranted… Republicans embraced those rulings. Now they are less certain that individual federal judges should be able to wield such power. ‘Once again, a single district judge — this time in San Francisco — has ignored federal immigration law to set a new immigration policy for the entire country,’ the White House said in a statement released Tuesday [4/25].
“Mr. Trump’s first travel ban was also halted by a nationwide injunction, entered by a judge in Seattle, and his revised travel ban was blocked by nationwide injunctions from judges in Maryland and Hawaii… That last order did not sit well with Attorney General Jeff Sessions, who criticized Judge Derrick K. Watson of Federal District Court in Honolulu — ‘a judge sitting on an island in the Pacific,’ as Mr. Sessions put it — for issuing a ruling that would apply to the whole nation.
“But Judge Watson relied on a 2015 appeals court ruling blocking Mr. Obama’s immigration program that said such nationwide injunctions were required to ensure uniformity. The court affirmed an injunction issued by a single judge in Brownsville, Tex., who said Mr. Obama had exceeded his authority… As a senator, Mr. Sessions cheered that ruling, saying it was ‘an injunction that stopped the Obama administration from proceeding with its lawless immigration system.’” New York Times, April 27th.
The pendulum will swing back and forth, but the ultimate reality is that judiciary, the congress and the presidency are supposed to be independent of each other and act as checks and balances to each other. The system is doing what it is supposed to do, with or without presidential support. And for those Democrats who may be gloating now…
I’m Peter Dekom, and that “what’s good for the goose is good for the gander” seems to continue to apply.

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