Cal Thomas: The state of the judiciary

MARY REICHARD, HOST: Today is Tuesday, November 27th. Good morning! This is The World and Everything in It from member-supported WORLD Radio. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Next up, Cal Thomas on the debate over interpreting the Constitution.

CAL THOMAS, COMMENTATOR: Last week the president called the San Francisco-based 9th U.S. Circuit Court of Appeal “a lawless disgrace.” His critique came after District Court Judge Jon S. Tigar ordered the Trump administration to resume accepting asylum claims from migrants, even if they enter between ports of entry.

The president blasted Tigar as an “Obama judge.” That prompted a rare pushback from Supreme Court Chief Justice John Roberts. In a statement, Roberts said, quote—“We do not have Obama judges, or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”

The problem is that the judiciary does, in too many cases, appear to have become independent of the Constitution, making laws and reading policies into the document that are not there. If all judges thought the same, as Roberts seems to suggest, why does the high court so often issue controversial 5-4 rulings?

And if there are no Trump, Obama, Bush or Clinton judges, then why the vicious battle over Supreme Court nominees?

In a Thanksgiving Day tweet, the president claimed, quote—“Judges must not legislate security and safety at the border or anywhere else. … Our great law enforcement professionals must be allowed to do their job! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written.”

That last sentence is at the heart of a debate that has been going on at least since the 1960s and centers on what standard should be used to interpret the Constitution. Does the Constitution speak for itself, or does it say only what judges say it says—the so-called “living Constitution” legal theory?

The president is on solid footing when he argues to preserve the prerogatives of his office. In 1950, the Supreme Court said, quote—“The exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power.” Congress increased that power in 1952, passing legislation declaring the president may suspend immigration “whenever he thinks it would be detrimental to the interests of the United States.”

President Truman vetoed the measure, but Congress overrode him. It is the standard that ought to be employed today.

The back and forth between President Trump and Chief Justice Roberts has brought the illegal immigration issue to the forefront again, where it is likely to remain through the next election and beyond. Eventually, it will be resolved either to the benefit or detriment of the nation.

For WORLD Radio, I’m Cal Thomas.

(Photo/Adam Theo, Flickr)

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