American Family Association radio host Bryan Fischer posed a question to AFA supporters yesterday: “Why Does Trump Let Judges Push Him Around?” Fischer is furious that a federal judge in Hawaii extended his injunction against President Trump’s executive order banning travel from targeted countries.
Of course, there is a long tradition of Religious Right activists denouncing as “judicial activism” rulings they disagree with. And some right-wing activists have been pushing state officials to nullify – to ignore and defy – federal court rulings on abortion and marriage equality.
Fischer is fully on-board with nullification. He wants Trump to ignore the judge and other “black-robed oligarchs.” As precedent, he cites the probably apocryphal response of then-President Andrew Jackson to a Supreme Court ruling on the rights of Indian nations: "John Marshall has made his decision; now let him enforce it!” That attitude, if not the exact language, led to the brutal forced migration of the Cherokee Indians in the Trail of Tears.
Fischer is outraged that a federal district judge would presume to rule on the constitutionality of a presidential directive on immigration.
The mere fact that a bottom-rung judge would have the presumption to wrest that power from the president and arrogate it to himself is beyond disturbing. The only thing more disturbing is that we are letting him get away with it. It’s absurd that the only figure who is allowed to dictate immigration policy “by proclamation” is the one figure who has no authority whatsoever to do it.
It must not be forgotten that this toxic activism will not be confined to this renegade judge. Other minor-league judges will take note that one of their colleagues has taken control, all by himself, of a major area of American policy, is dictating policy to the president, and everybody is letting him get away with it. Some judges will certainly tell themselves that if Judge Watson can do it, what’s stopping me from doing the same thing in another area of public policy? The result will be total chaos, with an entire nation in the grip of ego-driven junior league judges routinely exceeding their authority and wresting complete control of American policy from our elected officials.
I, for one, do not welcome our new judicial overlords. And neither should President Trump. If the president were to ignore Judge Watson’s tyrannical edict, on the grounds that the judge has no more legal authority than a traffic court judge to issue it, what could Judge Watson do about it? If the president were simply to go straight on ahead and begin implementing his perfectly constitutional policy, what could Judge Watson do to stop him? Precisely nothing.
Upon taking office, President Trump quite pointedly hung a portrait of Andrew Jackson in the White House. Jackson is perhaps most noted for telling the Chief Justice of the Supreme Court to take a hike when he issued an unconstitutional order. Jackson is reported to have said, "John Marshall has made his decision; now let him enforce it!”
This is the only way judicial tyranny is going to be broken in America. It will be broken by elected officials who fulfill their oaths of office to uphold and defend the Constitution by flatly refusing to knuckle under to black-robed oligarchs who tread where the Constitution forbids them to go. For elected officials to do this is not civil disobedience; it is constitutional obedience of the highest order.
Not surprisingly, Fischer felt differently in 2015 when a federal judge in Texas blocked implementation of an Obama executive order on immigration. Fischer declared that the Texas ruling as “right on matters of law and the Constitution.” Last year he celebrated when a federal judge blocked an Obama administration directive protecting transgender students. And this year, the American Family Association cheered when Attorney General Jeff Sessions’ Justice Department withdrew the Obama administration’s appeal of that ruling.
