The Tempting of Judge Bolton

Congress cedes power to Obama as King and judges as oligarchs

The problem of judge-made law trumping We the People’s contract with our government is as old as the Supreme Court’s rulings in Dred Scott (1857), Plessey (1896), Roe (1973), and Kelo (2005) and as new as this year’s federal district court rulings on illegal immigration enforcement in Arizona and gay marriage in California, respectively.

The grand canyon, State proper, and between the rule of law and rule (whim) of men

In the Arizona case, DeVine Law searched high and low for an argument justifying the federal government’s claim of having “preempted” the field of immigration law, above and beyond those offered by Judge Susan Bolton. We searched in vain.

The “best” argument having been given tepid acknowledgement by a respected legal scholar, we affirm Andy McCarthy’s evaluation thusly:

Preemption hinges not on theexecutive branch’s enforcement priorities but on congressional statutes. This distinction is accurately framed in Heather’s aforementioned NRO column: “A state law unconstitutionally conflicts with federal if either ‘compliance with both State and federal law is impossible, or . . . the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” (My highlighting, for reasons that will become clear presently.)

The “federal government” has not ignored the illegal alien in question. To the contrary, Congress has enacted an applicable law; the president is simply choosing not to enforce it. Similarly, Arizona has not put itself at odds with the “federal government’s” immigration priorities. It has mirrored Congress’s priorities; it is at odds only with the president’s (non-)enforcement policy. A state law does not run afoul of the Constitution’s Supremacy Clause (which the preemption doctrine vindicates) by colliding with executive branch enforcement priorities. That becomes clear when we apply the preemption test Heather quotes above: (a) compliance with both the state and federal laws is entirely possible, and (b) the state law is no obstacle to the purposes and objectives of Congress, which are evinced by federal statutes.

This gets us to the crucial distinction: Congressional statutes are law, executive branch enforcement policies are politics. Preemption is a legal question, not a political matter.

After Robert Bork (pictured) was “borked” (lied about ambush-style) by the late Ted Kennedy and his Democratic Party-dominated U.S. Senate in the late 1980s, conservatives set about organizing Federalist Societies in American law schools, which have produced a not-insubstantial bench of judges with records of resistance to what Bork calls “the tempting” in his seminal “The Tempting of America: The Political Seduction of the Law“. From this millieu emerged The Chief Justice of the United States, John Roberts and Associate Justice of the Supreme Court, Samuel Alito.

In “The Tempting” and “Slouching Towards Gomorrah“, the greatest legal mind the nation’s highest court would have ever known, describes the politicization of nearly every institution and discipline in America, beginning at least since the late 19th Century, including the global warming “science” institution, but I digress. In the former tome, Bork goes into detail about how judges cloaked in a robe of esteem and presumed objectivity are tempted to impose their will from a “living constitution”, while still couching their arguments in the language of the actual Constitution. Although given the given the brazenness of President Barack Obama’s actions in office and the testimony of his second appointment to the Supreme Court, even this pretense appears to be on the wane.

Checks and Balances reduced to We the People

America’s revered “rule of  law” wasn’t involved in Obama’s firing of GM’s CEO, nor in the the imposition of a second moratorium against deep-water oil drilling instituted in clear violation of a federal judge’s Temporary Restraining Order issued less than 24 hours earlier. Those under the moratorium fear challenging Obama in court lest they have his pitchforks sicked on them via regulation of some other means.

The Democrat Congress doesn’t intervene despite clear violations of federal statutes, giddy with delight that their liberal dreams are being imposed and even go one step further toward the “rule of (liberal) men” with grants of executive discretion in Dodd and ObamaCare bills.

President Obama already signaled the ripping of the blindfold from Lady Justice with the empathizing Justice Sonia Sotomayor as Justice Elena Kagan defends their kind as the “third way” to amend the Constitution.

The Rule of Law seems distant if not dead.

So what of politics? More from McCarthy:

We are a body politicnot a body legal. Federal law is (and is supposed to be) very limited in what it can prevent a sovereign state from doing. Beyond those narrow limitations, the state has discretion to govern itself as its citizens see fit. Similarly, the federal executive branch is vested with vast powers but finite resources, and it has discretion over how it will husband the latter. When a state’s lawful discretionary action conflicts with the president’s lawful discretionary decision not to enforce a congressional statute, that is not a legal issue. It is a politicalissue.

In such a situation, the job of the federal courts is to stay out of it. Then, in the court of public opinion, Arizona gets to demonstrate why illegal immigration is a huge problem, and the Obama administration can try to defend the de facto amnesty it seeks to confer on the illegal immigrant population. Indeed, it is only when the law throws back its veil and politics is allowed to operate, that we actually get to see that de facto amnesty is the president’s objective. That’s why the administration and its Justice Department want you to think of this as a legal case — if it’s politics, they lose . . . big.

It is very important not to permit the Supremacy Clause’s elevation of congressional enactments, which actually constitute federal law and thus the supreme expression of the national will, to devolve into an elevation of presidential priorities, which are not law at all but political choices that can, in fact, frustrate the national will by not enforcing it.

Obama refuses to obey Constitution to defend the states

Article IV, Section 4 of The Constitution of the United States declares:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Clearly President Barack Obama should be impeached for intentionally not protecting Arizona and the remainder of the Lower Forty-Eight from invasion, and just as clearly has Judge Bolton succumbed to the temptation of re-writing the Constitution and statutes as she wishes them to be. She has succumbed to the tempting of the serpent in Garden, as has President Obama, to be “as gods”.

Bork speaks much of how dependent our system has always been on men and women of character occupying the bench that would exercise self-discipline in faithfully interpreting the law, rather than make law while hiding behind such terms as “equal protection” and “due process”.

Presidents Thomas Jefferson and Abraham Lincoln bemoaned the loss of We the People’s right to self governance  via a judicial oligarchy substitute for King George; and the near impossibility of impeaching those granted robes and power for life.

Yet now, we also have a character problem in a Congress that will not be a check on a shameless, character-less mobster in the White House.

The continued domestic tempting of Justice (Commander-in-Chief) Anthony Kennedy

The American people will most likely have given ObamaDems the boot by the time the Supreme Court reinstates Arizona’s law, but the other bombshell from the Tempted class is on a very different track.

I speak, of course, concerning the striking down of California Proposition 8, which had banned all but opposite-sex marriage (as if) entered into by no more than one man with one woman.

Federal District Judge Vaughn Walker followed Obama-Kagan’s living empathy constitution and declared 5000 years of civilization (much less the Constitution of the United States and 5.5 million voters in the Golden State) null and void with a telegram to Chief Judicial Oligarch Anthony Kennedy toimpose gay marriage on America ASAP.

You remember the replacement for Judge Bork don’t you? He upheld the invented right to kill really small human beings lest BMW payments go unpaid. He joined with like-minded liberals to declare sodomy a fundamental right akin to free speech. Finally, he replaced President George W. Bush as Commander-in-Chief of illegal enemy combatants before Obama ran for Mayor of Gitmo.

Into Kennedy’s hands will fall the issue that spelled the rise of empires Roman and pagan throughout history:

Will Man be God via King-like Obamas and judicial tyrants and re-define civilization’s essential institution of the  family with Uncle Sam as daddy in one fell swoop, or will the United States again return to the Creator and self-governance?

Upon this question and those questions to be asked of We the People at the polls in the next three Novembers, rests the continuing viability of the Hill upon which this City called America has shined.

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

Charlotte ObserverThe Minority Report and Examiner.com archives