Political campaign comments should not be subject to judicial review
The background to this post includes recent comments or rulings from judges in the 9th Circuit, district and appeal level. The circuit is a reliable “go to” judge shop venue for liberals looking for a favorable ruling. Judges there have sought to thwart President Trump’s immigration law enforcement agenda. The articles linked to below provide more particular background as to the effect (mixed) and legal implications of the statements and rulings. We presume readers are in the know about the general effort by liberal activists, which includes judges, to thwart Trump’s appropriate efforts. Our comments follow.
Andrew McCarthy writes: A Ruling about Nothing (excerpt)
A showboating federal judge in San Francisco has issued an injunction against President Trump’s executive order cutting off federal funds from so-called sanctuary cities. The ruling distorts the E.O. beyond recognition, accusing the president of usurping legislative authority despite the order’s express adherence to “existing law.” Moreover, undeterred by the inconvenience that the order has not been enforced, the activist court — better to say, the fantasist court — dreams up harms that might befall San Francisco and Santa Clara, the sanctuary jurisdictions behind the suit, if it were enforced. The court thus flouts the standing doctrine, which limits judicial authority to actual controversies involving concrete, non-speculative harms.
Although he vents for 49 pages, Judge William H. Orrick III gives away the game early, on page 4. There, the Obama appointee explains that his ruling is about . . . nothing.
That is, Orrick acknowledges that he is adopting the construction of the E.O. urged by the Trump Justice Department, which maintains that the order does nothing more than call for the enforcement of already existing law. Although that construction is completely consistent with the E.O. as written, Judge Orrick implausibly describes it as “implausible.”
Since Orrick ultimately agrees with the Trump Justice Department, and since no enforcement action has been taken based on the E.O., why not just dismiss the case? Why the judicial theatrics? . . . McCarthy goes on to eruditely explain.
The same day we read John Donald O’Shea column in the Argus Dispatch regarding an earlier ruling from another activist liberal district judge from the 9th Circuit:
How Judge Watson blindfolded the president (excerpt)
Hawaiian Federal District Court Judge Derrik Watson has entered a temporary order restraining President Trump from enforcing his revised executive order dealing with immigration from six Muslim countries.
Judge Watson concedes that the “exercise of discretion” embodied in Mr. Trump’s order was “admittedly neutral on its face.” Normally, that would end the matter. Not so. To get where he wanted to go, Judge Watson had to find that the “primary purpose” of President Trump’s order was animated by the president’s hatred of Muslims, and not by the president’s desire to keep the country safe from terrorists coming from Syria and five other war-torn countries.
To support his conclusion of “religious animus,” the judge set out seven brief excerpts from hundreds of speeches President Trump has made on the stump and since becoming president. . . . .
But if the plaintiffs are to be allowed to attack the “primary purpose” of the order by rummaging through the president’s earlier speeches to find brief excerpts tending to show “intent to discriminate,” why wasn’t the president afforded the right to adduce his evidence of “historical context” and “sequence of events” to show that the threat of terrorists from those six countries was genuine, and that he was truly acting to prevent terrorists from entering and killing here? How can any judge determine that plaintiffs “are likely to prevail on the merits,” and “the equities favor the plaintiff” from only one side’s affidavits? The ruling makes reference to no counter-affidavits.
Both articles in part describe efforts by the judges to assert that campaign speeches or comments made by Trump as discerned and understood by the judges reveals intent. If the judge thinks the claimed intent is improper then any action taken by Trump as regards any aspect of the subject matter becomes suspect and perhaps even subject to preemption. The concept these judges employ, among so many faults, is an assault on free speech. It is so ridiculous that it would seem that all that would be necessary to intellectually hamstring such ham-headed nonsense is a global disclaimer by all politicians while speechifying to the effect ~~ “I intend to do good by the Constitution and only the Constitution and this covers and limits all other comments made in any and all speeches or actions”.
Of course they do that when they take the oath office, the only relevant intent as a matter of law.
To us the concept of “intent” raises the importance of the judicial philosophy of textualism, which emphasizes what law/regulation/statutes actually say, not what some judge thinks the intent was, or the verbiage should say. Word meaning of the day and even legislative history, (not speechifying at the time), can enter into the judicial analysis but first, foremost and controlling, is the text and its undergirding constitutional authority. This limits the implementation of tyrannical judicial policy preferences or misinterpretation.
Politicians can change their opinions about matters, develop nuances, become better informed once in office. Something said on the campaign trail, sound bites, out of context and even uninformed comments must not be the subject of judicial analysis, because that is them involving themselves in political interpretation. It is dangerous to even make a politician’s actual hoped for intent subject to judicial review. It is the written terms of the contract, so to speak, which are the only thing subject to scrutiny.* Any policy as implemented is subject to ongoing political give and take, but not preemptive judicial review as long as the activity is authorized under the Constitution. R Mall
*Indeed that is the gist of a common disclaimer in contracts of any sort.
