Trump's Travel Executive Order, and the Supreme Court

By Douglas V. Gibbs

Author, Speaker, Instructor, Radio Host

The U.S. Constitution is a social contract.  When it comes to the federal government, case law was not originally intended to be the tool through which the Constitution is to be interpreted.  As a contract, the document is simple.  For the federal government, in order to wield any particular power, the authority must be expressly enumerated on the pages of the founding instrument in the first seven articles, or the 27 subsequent amendments (really 25, if you consider the fact that the prohibition amendments cancel each other out).  Therefore, to determine if a federal law, action, or regulation is constitutional, all one must do is look to see if it is listed somewhere in the Constitution.

Article III is the place in the Constitution where the judicial branch is established, and given its authorities.  The 11th Amendment was ratified by the States so as to reduce the authorities of the federal court system.  Throughout the entire document there is no authority granted, anywhere, giving the courts the authority of judicial review (the ability to be the final arbiter of the Constitution regarding laws, executive orders, legal acts), nor the authority to strike down or block any laws, executive orders or legal acts based on their opinion of whether or not the item is just or constitutional.  In other words, the judicial branch's job is not to interpret the law, or interpret the Constitution.  Their job is to apply the law, and apply the Constitution to the cases their hear.

In short, there is no place in the Constitution that grants the authority to the courts the ability to block, or deny the operation of, any executive order issued by the United States President.

That said, as we discuss the issue of the United States Supreme Court hearing the case regarding Donald Trump's "travel ban executive order," understand that the legal rules in place are products of a progressive usurpation of the law of the land, and are not in line with the original intent of the U.S. Constitution.

Executive Orders are not supposed to be legislative.  In other words, an executive order is unconstitutional if it creates, modifies, or is a refusal to executive any law of the United States.  Executive orders were originally intended to be proclamations, or the tool for the President to delegate down his orders to the various departments or agencies of the executive branch.  In other words, since in Article II the Constitution instructs that the President "shall faithfully execute the laws of the United States," the executive order is the tool given to him that he may use to carry out that constitutional responsibility.

The President is the enforcement arm of the federal government. It is his job to execute the laws of the United States, and to use his departments and agencies to carry out that obligation.  So, a proper executive order does not change a law, it lists the law it is carrying out, and then instructs the agencies involved how carry out those laws.

In 1803, William Marbury won his United States Supreme Court case regarding whether or not he should have had his judicial commission delivered, of which President Thomas Jefferson instructed James Madison not to do so.  The Marbury v. Madison case was a landmark decision because it is from Chief Justice John Marshall's opinion regarding the ruling of that case that the progressive left derives their concept of judicial review.  However, there is another key component from the case, as well.

Marbury won the case, but Marshall told him during the ruling that while Marbury had won the case, he would likely still not be able to get his commission because the court system has no enforcement arm, and the executive (President) was the one who made the decision that Madison not deliver the commission left over from President John Adams' flurry of midnight judges.

President Andrew Jackson, after the Worcester v. Georgia decision, famously dared the court system, saying, "John Marshall has made his decision; now let him enforce it!"

Jackson knew that the Supreme Court had no enforcement arm, and so he dared the courts, and then carried on as he was despite the court's decision.

Today's federal judges have the opinion that if they speak, we must all jump. They are somehow the gods of U.S. Law, and their opinion is final.  We have been following the unconstitutional path of case law and precedent when it comes to the Constitution, and the courts trying to check the other  two branches through judicial bullying, for over two hundred years - largely thanks to John Marshall's activism as Chief Justice.

The reality is, the courts are not there to check Congress or the President.  It is the job of Congress (and the States) to check the President and the federal courts.

Nonetheless, we have the system that has evolved, so President Trump's very constitutional travel restriction executive orders have been getting a beating by the court system by judges who have been placing their political opinions above the law, until the latest case finally made its way to the U.S. Supreme Court.  In a surprise ruling, the highest court in the land gave their seal of approval to the newest version of President Donald Trump's travel ban, in its entirety.

The latest executive order, the one the Supreme Court gave their opinion on, was issued last September.  It is the third edition of the travel restrictions executive orders which have been designed to use extreme vetting on travelers (foreign nationals) from eight specific countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen.

The judges of the inferior federal court system, a system plagued with 70% liberal left judges, partially blocked the executive orders for various reasons, disabling them in the eyes of the establishment.

When that was happening, I was hoping that Trump would pull an Andrew Jackson, but he has no constitutional advisers who understand the original intent of the Constitution as I do, so he didn't.

The Trump administration has maintained that the President has the authority to install travel bans in order to protect national security based on the laws as they currently exist, which gives the President the authority to provide bans when he feels it is necessary for the purpose of national security.

"The Constitution and acts of Congress confer on the President broad authority to prevent aliens abroad from entering this country when he deems it in the nation's interest," Solicitor General Noel Francisco argued in court papers. Francisco argued that the ban was necessary "in order to protect national security."

More interesting, regarding the decision, is that it was a 7-2 vote.  Only Justices Ruth Bader Ginsburg and Sonia Sotomayor stood against the President's executive order regarding travel restrictions.

Challenges will continue, because the liberal left does not care about what the Constitution says, what the law says, and apparently what the United States Supreme Court says.  They will keep pounding and pounding their fists until they get their way like a two-year old on his back kicking and screaming in the check-out line at a Walmart.

-- Political Pistachio Conservative News and Commentary