Biased federal judges are the biggest threat to constitutional order

Robert Robb:

There has been a lot of careless commentary about the alleged threat that President Donald Trump poses to the constitutional order, that he is a budding despot.

During his nearly two years in office, Trump has occasionally attempted to stretch presidential powers, such as his promised executive order to abolish birthright citizenship. However, no more so than did President Barack Obama, and arguably considerably less so.

So far, however, Trump has accepted the checks on his ability to act imposed by Congress and the courts. He has operated within the constitutional order.

In fact, the greatest threat to the constitutional order during his tenure has actually come from the federal bench. Judges have relegated Trump to being a second-class president. Because the judges disapprove of Trump’s character and behavior, they hold that he cannot exercise the authority that the constitution and federal law grant to his office.

The latest example is the decision by the Ninth Circuit Court of Appeals regarding the Deferred Action for Childhood Arrivals policy.
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The decision is pained to claim that it is not in fact so holding. That it is merely finding that the way in which the Trump administration went about abolishing the program, and the reasons that it gave, were defective.


The pettifogging in which the decision engages to erect this façade is almost laughable. The policy wasn’t issued pursuant to the Administrative Procedures Act, but it can be challenged under it. Litigation risk from a challenge to DACA couldn’t be considered a grounds for the action since it wasn’t explicitly stated as such — although such a challenge was pending, was cited in advice given by the attorney general, and was included in a background section in the policy declaration itself.

The decision ponders deeply the difference between citing “discretion” in taking action, compared to citing “authority” to do so. The Sophists had nothing on federal judges.

The game, however, is given away at the end. A concurring opinion, by Judge John Owens, agrees that the Trump administration is barred from rescinding DACA, but not for the pettifogging reasons. According to him, Trump and his administration have exhibited “racial animus” and thus cannot take this action.

In a footnote, the other two judges on the panel write: “We do not disagree with the reasoning of Judge Owen’s concurring opinion.”

In other words, it would not matter what process the Trump administration used or what reasons it cited. According to the judges, Trump is a bigot and therefore cannot be permitted to take action another president would be permitted to take.
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This looks like some judges who should be candidates for impeachment.  What is likely to happen is that the Sup[reme court will do what it does most of the time with the Ninth Circuit opinions and overturn their ridiculous ruling.