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Hawaii Judge's Unconstitutional Overreach Bans Trump's Second Travel Ban

Thursday, March 16, 2017 7:49
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(Before It's News)

By Douglas V. Gibbs

“The principle of the Constitution is that of a separation of legislative, Executive and Judiciary functions, except in cases specified. If this principle be not expressed in direct terms, it is clearly the spirit of the Constitution, and it ought to be so commented and acted on by every friend of free government.” –Thomas Jefferson

Article I, Section 1 of the United States Constitution grants all legislative powers to the Congress, not the judicial branch.  Separation of Powers means that one part of government cannot legally act in a manner that includes exercising the powers of another part of government.  This means that the legislative branch is not supposed to act in an executive manner, nor judicially.  The executive branch cannot legally act legislatively, nor judicially.  The judicial branch has no authority to use powers granted to the legislative branch nor the executive branch.  And, local government has local authorities, and the federal government has its own expressly enumerated powers that it is supposed to limit itself to.
When it comes to “rights,” the Bill of Rights was never intended to be a mechanism giving the federal government the authority to define rights, guarantee rights, nor offer rights to non-Americans.  The Bill of Rights, if you read the language carefully, is a message to the federal government to tell it “hands off” our rights. (First Amendment begins “Congress shall make no law…”; Second Amendment ends “shall not be infringed”; Third Amendment begins “No soldier shall”; and the Fourth Amendment has in the middle the words “shall not be violated”).  However, through a misinterpretation of the 14th Amendment, we now have a system that does the exact opposite.
From the Founding Father’s point of view, the largest threat to our natural God-given rights was a potentially tyrannical federal government, so why would they desire that the federal government, including federal judges, be the final arbiters regarding our rights, or the constitutionality of laws of the United States, or laws of the several States?
When it comes to immigration, or the event of any kind of migrants coming into the United States, in Article I, Section 9, in the same clause that gave the U.S. Congress the authority to establish law to eliminate the Atlantic Slave Trade, Congress was granted to authority to make any laws they deemed necessary to prohibit any persons they choose to from migrating into the United States.  In return, a number of laws exist to do exactly that.
These laws include, but are not limited to:
Article I, Section 9 of the Constitution has given Congress full authority to prohibit anyone they please.  Based on that authority, Congress, long ago, passed a law allowing the President to prohibit persons he believes to be a national security risk.  Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, to protect the American people from terrorist attacks by foreign nationals admitted to the United States.  Section 212(f) of the INA, 8 U.S.C. 1182(f), Section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), Section 222 of the INA, 8 U.S.C. 1222, and Sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351.

The executive branch’s job is to execute the laws of the United States.  Trump’s travel ban executive orders have been geared towards doing exactly that… executing the laws of the United States in an attempt to ensure the receiving population is protected from persons coming from countries with a record of harboring, funding, and promoting Islamic terrorism.

The judicial branch’s job is to apply U.S. Law, as it is written, to the cases they hear.  Their opinion of the law is only an opinion, and it is not their job to modify or strike down law based on their ideological opinion.  Whether or not the judges believe a law to be just, or unjust, constitutional, or unconstitutional, is not supposed to be cause for them to be able to strike down a piece of legislation, nor an executive order specifically executing and existing piece of U.S. Law.  They do not have the authority to legislate.
In Article I, Section 1 of the United States Constitution, it reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Legislative powers are those powers involved in establishing law, modifying law, and repealing law.  Since “all” legislative Powers belong to Congress, that means that the other two branches of government have no authority to establish, modify, or repeal the law.  To do so would be to exercise a legislative power, of which only the legislative branch has the authority over.
Yet, as President Trump signs executive orders specifically designed to protect this country against persons who are determined to cause violence against our citizens, in line with existing federal law that is on the books, federal judges are coming up with anything they can to try and stop the orders.
In other words, since the liberal left Democrats have no way to obstruct this President, and the GOP, through congressional means, they are using the courts to do it, even if their tactics are unconstitutional (and when I say unconstitutional, I mean “illegal”).
Among the latest criminal actions against constitutional authority being exercised by the liberal left is a hold placed on President Trump’s latest, revised travel ban executive order by a federal judge in Hawaii (U.S. District Court Judge Derrick Watson) who claims the order discriminates on the basis of nationality.
“Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court,” Watson wrote in his ruling. 
Think about that, for a moment.
An unelected judge who thinks he’s in there for life has dictated to Congress and the President of the United States they can’t do their job not because of the law, but because he has an ideological beef with it.  What that judge is saying is that if we are at war with a country, for example, we could not place any limitations on any immigration from that country.  The enemy would be free to insert as many spies and combatants into our country as they want, and the Commander in Chief would have no recourse because according to Judge Watson, you can’t limit immigration based on nationality.
During World War II, while we were at war with Germany, Italy and Japan, we had laws on the books limiting immigration from those three countries.  Was it because we were insensitive?  Racist?  No!  It was because we couldn’t tell the good from the bad. . . just like, because of Islamic terrorism, we can’t tell the good from the bad, at this time, when it comes to persons coming from the six countries listed in Trump’s executive order.
This is a national security issue, not a humanitarian issue.  And, it is within the President’s authority to ban persons from certain countries if he feels that such an order is necessary to ensure national security.
Trump, during a rally in Nashville, Tennessee, called the federal judge’s ruling “unprecedented judicial overreach,” and Trump vowed to fight.
The problem is, he wants to fight it out in the courts.
“We’re going to win. We’re going to keep our citizens safe,” Trump said. “The danger is clear. The law is clear. The need for my executive order is clear.”

In a statement released late Wednesday night the Department of Justice said they strongly disagreed with the ruling and called the move “flawed both in reasoning and scope.”

“The President’s Executive Order falls squarely within his lawful authority in seeking to protect our Nation’s security, and the Department will continue to defend this Executive Order in the courts,” said DOJ Spokesperson Sarah Isgur Flores.

Screw the courts.  The judge acted outside the Constitution.  The Congress needs to send a Federal Marshall to Hawaii to fetch Judge Watson so that he can answer for his actions before Congress.  Then, on the grounds that his unconstitutional behavior is in violation to his oath to the U.S. Constitution, remove the judge from his position.  Then, Congress needs to propose legislation nullifying these unconstitutional rulings as per the Exceptions Clause in Article III of the Constitution, and then another law putting into plain language what the President can do in the name of National Security so as to fully support his executive order.

More than half a dozen States are trying to stop the ban, and federal courts in Maryland, Washington State and Hawaii heard arguments about whether it should be put into practice.
Hawaii also argued to the court that the ban would prevent residents from receiving visits from relatives in the six countries covered by the order. The State says the ban would harm its tourism industry and the ability to recruit foreign students and workers.

That would be like you complaining that after a DUI it would prevent you from visiting relatives because of the time behind bars, and the time you must suffer through regarding a suspended driver’s license, and then arguing the fine would hurt you financially.  Therefore, the arrest and fine was unlawful.

Really?  Have we gotten that stupid?
In Maryland, attorneys told a federal judge that the measure discriminates against Muslims, as did the prior executive order.

No, it doesn’t.  It says that persons from those countries, which so happen to be Muslim majority countries, for the time being until we can figure out how to better vet the migrants so as to remove the terrorist element from the group, can’t come here.  We want to protect our receiving population from terrorist attacks, and other threats such as disease and criminal activity.

I lock the door to my house to protect my family, and I will not open the door for someone who I do not know and cannot give me a convincing argument to let them in.  Why?  Because I love my family, and I want to protect them.  In a manner of speaking, this country is our house.
Besides, as Jeffrey Wall argued for the Justice Department, the executive order “doesn’t say anything about religion. It doesn’t draw any religious distinctions.”
Attorneys for the ACLU and other groups said that Trump’s statements on the campaign trail and statements from his advisers since he took office make clear that the intent of the ban is to ban Muslims.

“President Trump’s second executive order is just a Muslim Ban by another name – with the same unlawful and unconstitutional goal of discriminating based on religion and national origin,” said New York Attorney General Eric Schneiderman in a statement.

Are we now prosecuting thought crimes?  If the Democrats say you are thinking something, you are guilty despite the evidence, apparently.  Besides, if President Trump wanted to specifically ban Muslims for the sake of the fact that they are Muslim, wouldn’t he have targeted ALL Muslim-majority countries in his travel ban?
Let me repeat what I said earlier.  This is not a humanitarian issue, it’s a national security issue, and this latest executive order takes that exact tact in the way it was written.  It is narrower and eases some concerns about violating the due-process rights of travelers, applying only to new visas from Somalia, Iran, Syria, Sudan, Libya and Yemen and temporarily shuts down the U.S. refugee program. It does not apply to travelers who already have visas.

“Generally, courts defer on national security to the government,” said U.S. District Judge Theodore Chuang. “Do I need to conclude that the national security purpose is a sham and false?”

For the liberal left Democrats this is a last gasp attempt to stand in the way of the new President.  Their narrative is so hateful and out of control that they are doing whatever they can to continue the temper tantrum about losing and doing whatever they can to stand in the way of any potential successes this President may be able to achieve.

The Democrats and liberal press were beside themselves when Rush Limbaugh said he hoped Obama would fail, yet they are doing all they can here to make sure Trump does.  Just a twinge of hypocrisy?
It is disgusting, and reveals much about the liberal left.  The thing is, I think by them doubling down on their hateful and rabid attacks, the Democrats are actually killing their chances of gaining ground in the mid-term elections of 2018, or having a snowball’s chance to dislodge Trump in 2020.
Looking back in history, I remember the story about how angry the big government Hamiltonian Federalist Party folks were when they lost the White House to Thomas Jefferson, and both Houses of Congress to Jefferson’s Republican Party.  During the final moments before Jefferson’s inauguration, Adams appointed a mess-load of midnight judges, hoping that the Federalist Party would at least be able to maintain some semblance of power through the judicial branch.
Thomas Jefferson said of the big government leftist retreat to the court system, “The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them.” — Thomas Jefferson to Joel Barlow, 1801. 
Oh, by the way, Judge Watson, the federal judge in Hawaii, was an Obama appointee.

– Political Pistachio Conservative News and Commentary

Doug’s Book: Concepts of the United States Constitution has chapters on both Judicial Review, and Separation of Powers.

Doug’s Book: The Basic Constitution breaks down the text of the Constitution and also goes deeply into these issues.


Source: http://politicalpistachio.blogspot.com/2017/03/hawaii-judges-unconstitutional.html

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Total 2 comments
  • Just me

    EO’s can only facilitate EXISTING laws. They cannot legally or constitutionally CREATE law. If Obama had done this you’d all be up in arms. But you casually allow Trump to abuse his executive powers. Mark my words – it will come back to bite you in the butt.

  • raburgeson

    Doesn’t he know who has jurisdiction? Trump is not creating law, he is using existing ones.

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