This is no Longer Judicial Activism. This is Judicial Tyranny.

Michael Galka-Giaquinto

 

In this piece, I would like to make the case that the Hawaii judge’s decision to halt President Trump’s meticulously worded travel ban on 6 Muslim-majority countries constitutes tyranny.  Before I get into tyranny, let us discuss the concept of activism as per the courts.

In conservative parlance, there is a phrase used to refer to judges that rule based on political ideology rather than constitutional law: judicial activism.  The general argument is that judges at the district level or the supreme court level should rule on cases that have a constitutional application, otherwise they would be “activist”.  Conservatives and libertarians would argue that issues like marriage or abortion should not be ruled on judicially, but rather voted on because they are not explicitly defined as rights in the constitution.  However, something such as gun rights should be decided based on a judicial constitutional interpretation because the right to bear arms is a constitutional right.  I would agree that for far too long liberals have tried to achieve their objectives through judicial activism and through taking advantage of judicial review to essentially impose a tribunal tyranny on the American populace.  But the halt on the latest travel ban is beyond activist and rooted in feeling.  I would argue that it undermines the executive branch itself and constitutes actual tyranny.

In the constitution, foreign policy and all other policy related to foreigners is explicitly defined as a function of the legislative and executive branches.  This is absolutely necessary to carry out wars, to exclude dangerous foreigners, and to quell internal treasonous activities with ties to foreign countries.  In fact, when a court breaches this boundary it essentially wipes out our delicate balance of power and imposes foreign policy despotism.  Think about it: now a judge could essentially stop Congress from declaring war!

The Hawaii judge admitted to ruling based on comments Trump made during his campaign, which does not reflect administration policy.  Even if Trump were to keep his harshest travel ban promise (a complete Muslim ban), it is none of the court’s business since foreign policy is explicitly delegated to the executive and legislative branches.  This is judicial tyranny.  Not judicial overreach, not judicial activism, but judicial tyranny.  Judges are appointed by the president to rule on constitutional matters regarding rights as explicitly defined in the Bill of Rights as well as rights embedded in amendments passed after the Bill of Rights.  One branch of government does not have the right to usurp the powers delegated to another branch of government, especially when that power is about controlling America’s relations with the rest of the world.  Here we have a district judge, with no top secret information, no connection to any foreign policy abroad either through diplomacy and negotiations, or war, unilaterally deciding how a country should approach the rest of the world.  Put it this way: imagine that America gets invaded and a hypothetical judge rules ‘oh no, defense against invasion is discriminatory because you made mean comments during the campaign season’.  Seems ridiculous, doesn’t it?  Of course it is- because foreign policy is appropriately vested in the branch that deals with foreign powers!

It’s time for all Americans, liberal or conservative to defend the constitution against a judicial tyrant who wants to control America’s destiny despite it not being a power delegated to him, or a power appropriate for him to rule on for it seals the fate of the existence of the country itself.

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