Judicial Coup

In the weeks since President Trump took office, federal judges have arrogated to themselves the authority to control how the government spends money, whether the government can issue orders to government personnel and even the content displayed on government websites.

Federal judges have claimed that the White House can’t offer buyouts to federal employees, can’t fire political appointees from the previous administrations, can’t pause funding, can’t cut funds to government programs, can’t change formulas allocating government grants and also can’t remove transgender ideology from government websites put there by its predecessors.

And if the White House doesn’t even control government websites, what does it control?

Conversely, federal judges can control any and all of these things at their whim and will. And that means that they control everything and that actual elected officials control nothing at all.

In the aftermath of a landslide election, government unions have contended that the Department of Government Efficiency should not be able to access federal databases and that USAID and potentially other unwanted parts of the federal government cannot be restructured.

Federal judges have mostly agreed that the government ought to be run by judges for the benefit of government employees and that the people who elected Trump have no say in it.

After 60,000 federal employees accepted a proposed buyout, government unions sued arguing that they have no right to receive or accept such a buyout. Another federal judge agreed. Still more federal judges contended that the federal government had no right to pause appropriations to verify that they were not in conflict with Trump’s executive orders.

These judicial coups were masterminded by federal judges unilaterally deciding that Trump administration decisions that they disagree with lacked a basis. The lawsuit and decision forcing the restoration of transgender ideology content to HHS, CDC and FDA websites argued that the “removal decisions were ‘completely unreasoned’ and thus were not the product of reasoned decisionmaking.” The addition of such unscientific ideology to these websites in the first place however was surely “completely reasoned” and the product of “reasoned decisionmaking.”

Such things are in the eye of the beholder. The American people voted decisively against transgender ideology in the last election and even recent New York Times polls showed that a majority of Democrats now oppose transgender procedures being inflicted on minors.

A federal judge insisting that business continue as usual on transgenderism isn’t just overruling Trump, he’s overruling the American people. And that’s the real purpose of the coup.

The ruling relied on the Administrative Procedure Act which has been one of the leading tools used by federal judges to substitute their own worldview for that of the legally elected president.

Numerous lawsuits against the Trump administration have been filed under the Administrative Procedure Act, urging sympathetic federal judges to find Trump administration policies to be “arbitrary and capricious” based on their own dislike of them. But that’s an abuse of the APA.

The APA was not meant as a tool for allowing federal judges to govern from the shadows by wilfully overriding the executive branch in any matter that they pleased, but to rein in the power of unelected administrators and officials which FDR had described as threatening to “develop a fourth branch of government for which there is no sanction in the Constitution.”

The report by FDR’s Attorney General Frank Murphy, later a Supreme Court justice, which led directly to the APA, specifically stated that the committee drawing up the baseline for the APA was not concerned with “the wisdom or propriety of regulations promulgated by the agencies, not with the correctness of the decisions in individual cases.”

The APA’s presumption was that federal agencies had become too sprawling to be managed properly and that the public needed some recourse against them. Its purpose was more in line with the recent Supreme Court decision ending Chevron Deference (which the same Democrats turning to the APA to attack Trump vocally protested) than to interfere with the president.

Federal judges are abusing the APA’s interdiction of “capricious” rulemaking by bureaucrats to block policies that are coming directly from the White House for entirely well-known reasons.

There is no mystery as to why, for example, government websites are taking down transgender materials. It requires no ‘rulemaking’ process or ‘comment period’ to understand why that is so. It’s part of a very public debate that has been going on across the country and that the losing side is trying to abuse by exploiting the APA to claim that it’s unreasoned or capricious.

During Trump’s first term, Justice Roberts along with the leftist justices executed the ultimate coup by arguing that a citizenship question could be blocked from appearing on the 2020 census because it violated the APA and it “appears to have been contrived”. Roberts seized the right to second guess the administration’s judgement over the political spin used to justify a decision and veto the president’s move on the grounds that he did not like his reasoning.

All of that was subjective, not objective, and it was a massive power grab by the judiciary.

The APA had been meant to shift power away from unelected officials and to the people by means of judicial review, and instead the judges cut out the people and took power themselves. Federal judges are not following the law, but substituting their own values and judgement for those of the elected officials whom the public chose to implement common sense policies.

A federal judge blocked the Bureau of Prisons from moving male offenders who falsely claim to be women out of female housing, arguing that “the public interest in seeing the plaintiffs relocated immediately to male facilities is slight at best.” The women who have been sexually assaulted by ‘transgender’ male offenders in custody might disagree.

The Constitution divided the United States government into three branches, but those branches are more informally divided between elected officials who follow their gut instincts and the whims of the public in making policy and the judiciary which follows the law. A president with no initiative or independent thinking is a mere administrator, not a leader. If his decisions follow precedent, law and existing policy alone, he ceases to represent the people. By contrast, a judge who follows his gut instincts, thinks independently and advocates for causes is a tyrant.

Under the constitutional scheme, judges cannot both serve as the leaders who make policy and who check those leaders who make policy. That’s not a judiciary, that’s a tyranny.

If that sounds like mere rhetoric, it comes from the highest of all sources in American history.

Thomas Jefferson cautioned that judges have “the same passions for party, for power” and “their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.”

“The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign with themselves.”

He warned that “to consider the judges as the ultimate arbiters of all constitutional questions” would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”.

The federal judges blocking President Trump’s decisions on spurious pretexts such as the APA are engaged in a judicial coup that Jefferson, Lincoln and our greatest leaders had defied.

If President Trump follows in their footsteps, he will not be defying the law, but standing up for the power of the people and the integrity of the Constitution.

Source: http://www.danielgreenfield.org/feeds/7069317597508211705/comments/default