“District courts cannot stand athwart, yelling ‘stop’ just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise.”
—Judge Kenneth K. Lee of the Ninth Circuit Court of Appeals, writing separately as a panel overruled a district court and held that the President had the power to suspend the Refugee Admissions Program.
Of course he did. The law and Constitution is clear on that point, but a woke District Court halted the President’s decision anyway. This was unethical as well as illegal, but, as Prof. Josh Blackman writes,
“President Trump is back in office, progressives still challenge virtually every action he takes, and judges in blue states continue to grant relief. No surprise there. But there is a new dynamic. Now, not only are lower court judges resisting the President, but they are also resisting the Supreme Court. In August, Justice Neil Gorsuch rebuked an attempted . Judge Brian Murphy of the District of Massachusetts managed to get reversed twice by the Supreme Court in the same case. “When this Court issues a decision,” Gorsuch wrote, “it constitutes a precedent that commands respect in lower courts.” Gorsuch added that “[t]his Court’s precedents, however, cannot be so easily circumvented.”
Remember, it is Trump’s opponents who keep accusing him of breaching “democratic norms,” yet the Axis of Unethical Conduct ( the “resistance,” Democrats and the media that carries on their propaganda) is literally defying the greatest democratic norm of all, the Constitution. Blackman calls this attempted usurpation of power by activist, partisan judges “judicial resistance,” in other words, an abuse of judicial power for partisan objectives. It is—this is me and not the professor saying this—grounds for impeachment. President Trump is not exceeding his Presidential authority as the Trump Deranged scream, but rather the judges and courts that are interfering in the Constitutional hierarchy. Unethical, you think? Damn right.
Blackman:
Ethics Alarms 
Are we in danger of a break in the judiciary? If the lower courts keep ignoring the precedents set by the higher courts, why should anyone listen to the lower courts? If some entity, like the President, takes the step to ignore the lower court injunctions instead of litigating the same issue yet again, does that not cross a line from which there is no coming back? Suddenly the judiciary is without fangs because it speaks, but no one listens?
“Yet somehow,” Blackman observes, “everything has gone topsy-turvy. Under the new order of operations, the President takes an action, states bring a lawsuit, a district court judge decides whether the policy goes into effect, and then two or three members of the Supreme Court promptly settle the issue with near finality.”
And Democrats and their allies in the news media, et al, loudly undermine the legitimacy of the Supreme Court: “Trump’s Court”, “Conservative-Majority Court”
Meanwhile, Judge Murphy continues in Massachusetts: Judge blocks vaccine changes by RFK Jr.’s advisory panel – Roll Call
Trump’s old friend judge Boasberg is at it again…apparently mind-reading and pre-trying cases all by himself.
There is precedent for a President ignoring court rulings.
Andrew Jackson ignored the 1832 Supreme Court ruling “Worcester v. Georgia” as he deemed Georgia’s laws in Cherokee territory unconstitutional; he is romored to have said “John Marshall has made his decision; now let him enforce it!”.
Abraham Lincoln ignored Chief Justice Taney’s writ of habeas corpus during the Civil War.
I am not suggesting that Trump should ignore the Supreme Court, however it could be politically wise to ignore hyper-partisan lower courts who basically enacting their political preferences from the bench, all the while recent Supreme Court precedent. This will create a constitutional crisis, but maybe that is precisely what is needed to force clarity on the boundaries of the power of the courts. Force the issues in front of the Supreme Court and Congress. The Constitution itself assumes the three branches of government to be equal, and does not support the philosophy of judicial supremacy.
What’s the solution to this?
I saw someone say that judges should have a three-strike rule that if they get slapped down three times by a higher court, it’s automatic impeachment. I don’t like that becauses the way the system is, but if you deliberately go against a SCOTUS ruling that has already slapped you down, then it should be.
Pssst! Professor! It isn’t Schoolhouse “Rocks,” it’s Schoolhouse Rock. As Old Biff admonishes his younger self in “Back to the Future II” when Young Biff says, “Make like a tree and get outa here!,” “You sound like an idiot when you say things like that!”
Glass houses Jack. 🙂
Ah, never mind, thought it might have been a spelling error. He says it three times in the article. That’s intentional. My Apologies.
I was thinking about something like that…maybe a certain percentage or set number reversed by the supremes would get you a suspension, or would remove you from hearing certain cases or plaitiffs, or making a nationally applicable ruling, or……?
The supreme Court can hold lower judges in contempt for ignoring the superior courts. Roberts is too much of a weanie to use that power like he should.
It is also needed for some state supreme courts to get that treatment. For example, the state of Hawaii’s supreme court should all pay $10K every time they use “the spirit of Aloha” in a ruling that says the US constitution doesn’t apply there.
I would love to see the supreme court make a ruling that certian judges are barred from topic areas that they get overruled on. Many judges, for example, should be barred from cases involving the 2nd amendment.
You do realize, of course, that this is all the plan of the Left. Judges are on board with the hope that if they keep enjoining Trump and ignoring the Supreme Court, that Trump will eventually tell them to pound sand, providing the Left with all the justification they need to completely remake the judiciary when they regain power, and ignore the courts when convenient. “Norms”, you know.
They know, in the end, this all ends well for them if they can get Trump to jump. That’s why it’s so important he does not, whatever Right-win influencers want him to do.
Is something afoot where the Ninth Circuit (the Ninth Circuit!) is reining in activist judges?
Unfortunately, no.
The blue slip process meant only weanie judges could be appointed by Republicans in the 9th district until Trump 43.
Loads of Bush 41 appointees completed their weanie status by assuming senior status under the potato. Now there are many young activists to replace them.
I have neither the interest nor the requisite number of legal interns needed to dig into the Refugee Admissions Program. But, it seems to me that if it is legitimate for the president to suspend the program, then it likewise is legitimate for the president to apply the program in a way he sees fit. Thus, when Biden, as has been said repeatedly on this site, flung open the border gates and invited multitudes of immigrants to just come on in, he was acting within the law and those multitudes immigrated legally. So, those who refer to them as illegal immigrants (a term I despise, and which to me indicates hatred of immigrants) were and are wrong.
As we have seen all too often, presidents who defacto are granted a free hand by imperfect legislation often will take advantage of that to pursue their own proclivities regardless of the intent of the legislation.
[As an aside, the reason I dislike the term ‘illegal immigrant’ is because it characterizes the person and not the action, and it implies dislike or even hatred of the person. My inclination is to hate the offense, not the person.]
By suspending the Refugee Admissions Program, Trump further solidifies his anti-immigrant posture. It would have been far better had he recognized the value immigrants bring to the country and beefed up the process for legal immigration, which is and has been severely backlogged. But, elections are a mere eight months away, and that must take priority over what is best for the country. Gotta please the base.
No. The President takes an oath to uphold the law. The Refugee Admission Program is an executive Branch program, not a law. The President is empowered to end it if he chooses, or alter it.
“As an aside, the reason I dislike the term ‘illegal immigrant’ is because it characterizes the person and not the action, and it implies dislike or even hatred of the person. My inclination is to hate the offense, not the person.“
That has to be the largest pile of illogical gibberish I’ve seen in quite a while. (And I’m not certain that description totally encompasses it.)