The democrats are making my head hurt. Initially we had a constitutional challenge to the travel ban. The legal argument for that was that the intent of the ban should be gotten not from the text of it nor from the statements of the government regarding the executive order but rather from statements made on the campaign trail and by a friend of the President. Now we have a constitutional challenge to the executive order requiring agencies to remove two regulations for every new one they put in place. The legal argument being that the order might remove a regulation that should stay in place. No mention of any specifics. The constitutional challenge is that the executive branch no longer has the right to repeal regulations that the executive branch itself put in place. This is not the end of it. There will be more nonsense coming up.
In an effort to oppose Trump democrats are manufacturing constitutional crisises that don’t exist. The legal arguments against the executive orders are so bad that under normal circumstances they would never have been made, with good reason as they go against every established practice in law. Yet because the Democrats are hell bent on opposing Trump no matter what the cases will go to the Supreme Court and they will be forced to decide on it.
There is a dirty secret to constitutional law that nobody wants to admit. I can make any argument I want against any statute or order I want and I will find a court that will agree with me on it. That is not a question. This is not limited to democrats either. There are liberal courts and there are conservative ones. It all depends on finding the right court. The ninth circuit for instance has 83% of its decisions in cases the Supreme Courts hears overturned. If they had that rate of accuracy in law school they would never have graduated.
The democrats have control over a significant portion of the media which means that they are able to portray these cases as legitimate no matter how stupid they actually are. It then puts the Supreme Court in a position where it either has to side with Trump giving the impression that it is caving to him or oppose him overturning every legal precedent out there which they will not do. Worse partisan hacks on the democratic side will be forced to create a dissent to agree with these views. Ginsberg will be forced to defend why the executive no longer has the right to repeal its own regulations and Sotomayor will defend why it is proper to ignore the statute and instead focus on public statements for statutory construction. Note that I am not saying partisan hacks on the right do not exist either. These dissents will now be part of jurisprudence and can be used by hacks on the right and the left in the future.
The public seeing these things will reach one of two conclusions. Either the democrats cry wolf all the time and should not be listened to or that the Supreme Court has no will to stand up to Trump and will just rubber stamp everything he does eroding trust in the court. When an actual legitimate constitutional crisis does come up Trump will be able to point to all these decisions as well and say that the issue of the day is just another nuisance lawsuit. Except at that point it will not be a nuisance suit and a valid legal question. Anyone has the right to challenge the constitutionality of the executive and legislative and it is a vital part of our checks and balances. Used incorrectly it weakens the very thing that we need.
When Gorsuch was first brought up I initially said I was ambivalent towards him. In another article I said that I did not vote for the Supreme Court and it was much more important to me that the other members in the Trump coalition who did vote for the Supreme Court pick were happy with the choice. I have now come to realize that we need Justice Gorsuch badly.
Gorsuch once wrote “American liberals have been addicted to the courtroom relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education, This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
This is exactly the kind of attitude that we need right now. One of the justices needs to stand up to the left and tell them enough is enough.