Posted in #kateslaw, #nationalsecurity, #theconstitution

Is Judicial Activism Unconstitutionally Limiting Powers Granted to the Executive Branch?

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The separation of powers among our three branches of government has devolved into very blurry lines over the years and to make it worse, about the only time any elected representative of the people cries foul is when that overreach or crossing of the line does not line up with their own personal political agenda.  

Most of us, those that are familiar with the Constitution and the purpose behind three distinct branches of government tend to be leery of Executive Orders issued by any President; however, there is some constitutional basis to EO’s, they have been issued by every sitting President back to and including George Washington.  Many, probably most of them, are not constitutional and are an overreach by the executive branch.  The problem is, I do not recall Democrats screaming and suing over the numerous (276 to be exact) executive orders issued by Barack Obama, or  the whopping 364 issued by Bill Clinton.  In fact, how many of you remember Obama’s threat wherein he stated he had a cell phone and he had a pen?  Following the Constitution should not be dependent upon whether or not the issue at hand supports your ideology or your agenda, following the Constitution should be your agenda or you are not qualified to represent the people of this republic.

Every thinking person in America knows that the 9th Judicial Circuit is a joke, and has become the perfect place for liberals to run with every action of President Trump that they do not like.  The legality and constitutionality of matters are not at the forefront of decisions made in the 9th Circuit, they do not even attempt to hide their bias or judicial activism.  The latest action that has landed in the 9th Circuit is Trump’s executive order that would withhold funding to sanctuary jurisdictions.  Although I am not a fan of executive orders, generally speaking, as legislation is supposed to be within the scope and responsibility of Congress, the legislative branch of our government, I wanted to look at this particular Order through the lens of the Constitution.  

First of all, the Executive Branch is tasked, by the Constitution, with taking care that the laws of this nation be faithfully executed.  Now, the founders for whatever reason did not see fit, or find it necessary to be more specific regarding how the President was supposed to ensure that the laws of our republic were executed or followed.  However, it stands to reason that if one is tasked with overseeing adherence to a set of rules or laws, that they would hold some authority to take action when those laws were being broken or simply ignored.  While the federal government has most certainly overstepped its authority as given by the Constitution, almost completely obliterating the concept of state’s rights, national safety and control of our borders is absolutely under the authority specifically given to the federal government.  It seems we have established that immigration and security of the border are the responsibility of the federal government and they have the authority to legislate regarding such matters.  We have also established that the executive branch, the President, is tasked, by the Constitution, with ensuring that federal laws are followed.  

What would be the purpose of tasking the executive branch with responsibility of ensuring federal laws were followed if the President has no power or authority to act when these laws are not being followed?  The left has argued that only Congress has authority as to budgetary issues.  They have also cited Amendments V and X in their arguments to the 9th Circuit.  Judge Orrick, of the 9th Circuit, concluded the following:

“The Constitution vests the spending power in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Furthermore, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

Notice that he proffers that funding cannot be threatened merely because a jurisdiction chooses an immigration strategy of which the President disapproves?  A bit of an understatement.  These sanctuary jurisdictions are blatantly disregarding federal law and placing this nation and her citizens in danger.  Does the name Kate Steinle ring a bell?  Her death is a direct result of San Francisco’s blatant disregard for federal law.  Yes, the Constitution vests spending power in Congress, but wait a minute, this executive order is not authorizing any spending is it?  It is merely applying sanctions to jurisdictions in violation of constitutionally supported federal laws, over which the executive branch is responsible for enforcing.  This may seem a bit like splitting hairs, but words matter.  Think about it, all police powers in place to ensure adherence to laws involve either coercion (fines) or force (imprisonment).  If the executive branch, the President, had no power or authority to use some form of punishment (coercion) or force if necessary, what would be the point of specifically tasking him with responsibility of ensuring the laws of this nation were faithfully executed?  Giving one the responsibility of ensuring a certain behavior with no recourse would serve no purpose and anyone who has studied the Constitution and the process of its birth knows that the founders put nothing in it that did not serve a purpose.  Can you imagine as a parent, being responsible for the actions of your child yet having no authority to discipline that child in any way?  

Common sense tells us that in making the executive branch responsible for adherence to this nation’s laws, that requires authority to act against non-compliance with those laws.  I do not believe anyone, especially myself, is advocating that the President has carte blanche in enforcing the laws of this nation, but how can one argue that he has no authority whatsoever to act?  And if not by financial coercion or force, what recourse could the founders have possibly imagined?

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