Judicial Branch in need of restraints? Laws should govern not arbitrary decisions by unelected folk

S

SouthoftheAndes

Guest
http://www.israelnationalnews.com/Articles/Article.aspx/20375

This is a good piece in my opinion on how the U.S. may be slipping into Despotic Judicial state. It gives a comaprison with Israel, however Israel is worse off in the fact that since a reform in Israeli law in 1995, it has led the Supreme court to overrule decisions by the executive government of Israel and to rule against laws passed by the frequently elected members of Parliament.

For example ranging from the Court ruling against laws passed by the elected members of Parliament, such as laws concerning illegal immigration, detention of criminals and illegal immigrants, border security, military service, laws concerning conversion, or Jewish religious things.


I wonder if that is what is happening and may have been happening in the U.S. from both sides of Congress. When Obama was in office the Republicans threatned to take it to the courts to remove anything they disliked that may have been passed. However, they have more ground to stand on as the U.S. has a Constitution with listed rights/amendments which cannot be violated.


"In Israel, the legislature is not sovereign to legislate, and the executive lacks actual control to execute the instructions of the legislature. The Supreme Court has seized the government’s power to enforce border controls, and to determine policies on immigration, military matters, national defense, public security, etc.

The dictum of Aharon Barak, President of the Supreme Court of Israel (1995-2006), that “everything is justiciable”, everything is liable to trial, makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It renders Israel a judicial despotism. The rules of law that Barak’s judicial opinions created have no counterpart in most democracies: that a court can countermand military orders; that a court can decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal’” and direct the government to move the security wall that keeps suicide bombers from entering Israel; that judges can only be removed by other judges; etc. This is what passes for the rule of law in Israel: arbitrary decrees by unelected officials.

The U.S. is trending towards the Israeli model. Some U.S. district court judges ruled that they had the authority to contravene legally framed executive order issued by President Donald Trump, making themselves the supreme law of the land; judicial despotism. "
 
Yeah an independent judiciary has always been a pain in the ass of would-be despots. Those poor dears. Sympathy cookie level: Nantucket.
 

If Hillary or Bernie won and progressive Democrats won a landslide majority in both Houses of Congress.

And passed laws and Hillary issued progressive executive orders only for them to be stopped and repealed by Republican unelected judges would you be saying "sigh"??? And implying that the Judicial branches power isn't too much?


Yeah an independent judiciary has always been a pain in the ass of would-be despots. Those poor dears. Sympathy cookie level: Nantucket.

You have it the other way around.

Despots usually use the military and a coup or subjugate the political opposition against them. They don't need judicial help to do that. The legislative branch is always in the hands of the people so long as elections are not totally rigged.

Members of Parliament or Congress have also regularly used their political influence with businessmen, foreign powers, and military to help launch a coup against a corrupt despot via forcing the despot out of power which is often called a 'Revolution'.

Judicial action is not needed.


You also ignore that it would be easier for a would be despot to become a despot by simply appointing judicial judges who are favorable to his rule. And he could also use his trusted justices to fight against laws that are passed by the legislature.


Don't view this in the context of liberal leaning judges sticking the finger to Trump.

If the reverse was occurring and Hillary was president being stopped from doing things would you say the same thing?
 
If Hillary or Bernie won and progressive Democrats won a landslide majority in both Houses of Congress.

And passed laws and Hillary issued progressive executive orders only for them to be stopped and repealed by Republican unelected judges would you be saying "sigh"??? And implying that the Judicial branches power isn't too much?




You have it the other way around.

Despots usually use the military and a coup or subjugate the political opposition against them. They don't need judicial help to do that. The legislative branch is always in the hands of the people so long as elections are not totally rigged.

Members of Parliament or Congress have also regularly used their political influence with businessmen, foreign powers, and military to help launch a coup against a corrupt despot via forcing the despot out of power which is often called a 'Revolution'.

Judicial action is not needed.


You also ignore that it would be easier for a would be despot to become a despot by simply appointing judicial judges who are favorable to his rule. And he could also use his trusted justices to fight against laws that are passed by the legislature.


Don't view this in the context of liberal leaning judges sticking the finger to Trump.

If the reverse was occurring and Hillary was president being stopped from doing things would you say the same thing?
Yes, yes I would. It's called being intellectually consistent. You should try it some time, it's absolutely delightful.

Also, there is a separate debate to be had over the merits of each case. You're suggesting that the judicial branch shouldn't serve it's role as a coequal branch of government.
 
You're suggesting that the judicial branch shouldn't serve it's role as a coequal branch of government.

The pivotal problem. People don't always understand that the 3 branches are equal. And so it makes perfect sense for each branch to have the power to curtail the actions of the other 2.

The President appoints the SCOTUS. He can veto Congress.
Congress can impeach the President. They can impeach SCOTUS.
Judiciary can overrule the President's unconstitutional act. Judiciary can overrule Congress's unconstitutional acts.

People tend to forget that this system is intentional and meant to limit the type of extreme actions that any one branch might pursue.
 
Yeah the judicial branch is out of control. Something needs to be done to stop legislating from the bench. They're supposed to be 2 separate branches, the Judicial Branch and the Legislative Branch.

I think the main thing to do is to take the power of judicial review away from the Judicial Branch. It's no-where in the Constitution. Past presidents have only allowed judicial review because it's tradition. It's no-where rooted in the real law or the real Constitution because our founding fathers knew this would happen.

quote-john-marshall-has-made-his-decision-now-let-him-enforce-it-andrew-jackson-307023.jpg
 
The pivotal problem. People don't always understand that the 3 branches are equal. And so it makes perfect sense for each branch to have the power to curtail the actions of the other 2.

The President appoints the SCOTUS. He can veto Congress.
Congress can impeach the President. They can impeach SCOTUS.
Judiciary can overrule the President's unconstitutional act. Judiciary can overrule Congress's unconstitutional acts.

People tend to forget that this system is intentional and meant to limit the type of extreme actions that any one branch might pursue.
It boggles my mind, frankly.
 
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Yes, yes I would. It's called being intellectually consistent. You should try it some time, it's absolutely delightful.

Also, there is a separate debate to be had over the merits of each case. You're suggesting that the judicial branch shouldn't serve it's role as a coequal branch of government.

No I am not I am merely suggesting that the Judicial branch interpret the laws. Did you even read the dang article?

My god what is so hard to understand for people about this?


The pivotal problem. People don't always understand that the 3 branches are equal. And so it makes perfect sense for each branch to have the power to curtail the actions of the other 2.

The President appoints the SCOTUS. He can veto Congress.
Congress can impeach the President. They can impeach SCOTUS.
Judiciary can overrule the President's unconstitutional act. Judiciary can overrule Congress's unconstitutional acts.

People tend to forget that this system is intentional and meant to limit the type of extreme actions that any one branch might pursue.

I am actually glad you came in with your input of course you have a bias as a lawyer.

In our American system of government with a strong constitution it does make perhaps make sense.

Can you please read the article link I posted? I feel the author made some great comments.

"A U.S. immigration law states that the president can by proclamation “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Yet the judges ruled against the travel ban based on their own subjective opinion of a president’s supposedly incorrect attitudes and past statements. Intent is neither an element nor a requirement of that law.

The U.S. constitution vests all executive power in the president. Shortly after its adoption, Thomas Jefferson wrote that under the Constitution, “the transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.” The rare exceptions were such matters as the approval of treaties, which Article II expressly vests in the Senate. There are also Constitutional bases for a congressional role in foreign affairs, such as Congress’s power over international commerce, to declare war, and to establish the qualifications for the naturalization of citizens; however, when Congress legislates in this role, it must do so mindful of what the Supreme Court, in United States v. Curtiss-Wright (1936), described as “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”

And lastly a quote by the great Abraham Lincoln.

“if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.” Abraham Lincoln


Yeah the judicial branch is out of control. Something needs to be done to stop legislating from the bench. They're supposed to be 2 separate branches, the Judicial Branch and the Legislative Branch.

I think the main thing to do is to take the power of judicial review away from the Judicial Branch. It's no-where in the Constitution. Past presidents have only allowed judicial review because it's tradition. It's no-where rooted in the real law or the real Constitution because our founding fathers knew this would happen.

quote-john-marshall-has-made-his-decision-now-let-him-enforce-it-andrew-jackson-307023.jpg

Idk man I just dislike the idea of the Judicial branch (unelected shit heads) ruling over elected officials and referendum results in countries it applies.
 
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The pivotal problem. People don't always understand that the 3 branches are equal. And so it makes perfect sense for each branch to have the power to curtail the actions of the other 2.

The President appoints the SCOTUS. He can veto Congress.
Congress can impeach the President. They can impeach SCOTUS.
Judiciary can overrule the President's unconstitutional act. Judiciary can overrule Congress's unconstitutional acts.

People tend to forget that this system is intentional and meant to limit the type of extreme actions that any one branch might pursue.
this should be on the back of every cereal box
 
The pivotal problem. People don't always understand that the 3 branches are equal. And so it makes perfect sense for each branch to have the power to curtail the actions of the other 2.

The President appoints the SCOTUS. He can veto Congress.
Congress can impeach the President. They can impeach SCOTUS.
Judiciary can overrule the President's unconstitutional act. Judiciary can overrule Congress's unconstitutional acts.

People tend to forget that this system is intentional and meant to limit the type of extreme actions that any one branch might pursue.

The US Judicial branch has far more power than most other democratic countries in the world.

If you follow the article I posted and then follow up on the Israeli judicial dilemma and the backlash against repeated actions by the Israeli judicial against the Legislative and executive branch, I have increasingly been reading about the Israeli dilemma and prior to their judicial overhaul they had in 1995 prior to that the legislature had all the power like most parliamentary systems around the world do. However, in the Israeli example perhaps it makes more sense as they do not have a constitution.

"The dictum of Aharon Barak, President of the Supreme Court of Israel (1995-2006), that “everything is justiciable”, everything is liable to trial, makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It renders Israel a judicial despotism. The rules of law that Barak’s judicial opinions created have no counterpart in most democracies: that a court can countermand military orders; that a court can decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal’” and direct the government to move the security wall that keeps suicide bombers from entering Israel; that judges can only be removed by other judges; etc. This is what passes for the rule of law in Israel: arbitrary decrees by unelected officials. "
 
That way Trump might learn something.

You are really one of the worst and most partisan trolls around.

ZERO ability to think critically and constant troll gifs of man with hot dogs thrown at his face or foolish one liners.

I swear to God if Bernie was President or Hillary was and Conservative Judges were blocking executive orders or trying to block laws passed by Congress you would be crying about a 'despotic' judicial branch. I however, at least can acknowledge that both people on the right and left are often this biased.
 
I am actually glad you came in with your input of course you have a bias as a lawyer.

In our American system of government with a strong constitution it does make perhaps make sense.

Can you please read the article link I posted? I feel the author made some great comments.

"A U.S. immigration law states that the president can by proclamation “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Yet the judges ruled against the travel ban based on their own subjective opinion of a president’s supposedly incorrect attitudes and past statements. Intent is neither an element nor a requirement of that law.

The U.S. constitution vests all executive power in the president. Shortly after its adoption, Thomas Jefferson wrote that under the Constitution, “the transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.” The rare exceptions were such matters as the approval of treaties, which Article II expressly vests in the Senate. There are also Constitutional bases for a congressional role in foreign affairs, such as Congress’s power over international commerce, to declare war, and to establish the qualifications for the naturalization of citizens; however, when Congress legislates in this role, it must do so mindful of what the Supreme Court, in United States v. Curtiss-Wright (1936), described as “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”

And lastly a quote by the great Abraham Lincoln.

“if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.” Abraham Lincoln

I read it. There's nothing new in it. This line of argument was presented the first time around. It's been presented multiple times in the past. And so the counterarguments are just as easy to find.

The President's powers, even those over immigration, are not above the limitations of the Constitution. The entire Constitution and that means the 1964 and 1965 Amendments are limitations on executive power.

There's so much in there to disagree with and I won't take the time. For example - our Supreme Court justices aren't elected officials intentionally. Turning around and complaining about the powers of unelected people making decisions over the elected officials means complaining that system our Constitution specifically enacted to remove 1 branch of government from the constancy of election politics was wrong. Yet, given the partisan hackery that surrounds every other aspect of government, it is beneficial that our judiciary remain above the day-to-day cycle of election politics. For example - people may not like Trump appointees but said appointee will not be beholden to Trump after appointment. More importantly, no future President will have the ability to sway his/her decisions. A Trump appointee won't have to raise money to retain his seat. He won't have to bend to the will of his "party". Of course, he'll have political leanings but he won't be required to compromise himself to keep his job. That's an important distinction.
 
The US Judicial branch has far more power than most other democratic countries in the world.

Nothing beyond that point matters. Who cares about the powers of other countries' governmental branches? I don't live there. The executive branch in a dictatorship has far more power than ours...so we should change to match that? When did Israel become the standard by which all democracies are to be measured?

Our system is fine. Every time it operates in a way that frustrates someone's goals, we get the usual crying about how the system is broken because someone couldn't do what they wanted. But the point of the system is to provide checks and balances, not to facilitate the passage of legislation.
 
The US Judicial branch has far more power than most other democratic countries in the world.

Which is a good thing! The way the US government is set up is that there are limits set on that government. It is the Judaical branch that ensures those limits are respected.
 
The US Judicial branch has far more power than most other democratic countries in the world.
As a lawyer outside the US I can say this is 100% wrong.

Most presidential republics in the West are pretty close to a copy-paste version of the American system and this includes the scope of the Judicial branch.
 
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Yeah the judicial branch is out of control. Something needs to be done to stop legislating from the bench. They're supposed to be 2 separate branches, the Judicial Branch and the Legislative Branch.

I think the main thing to do is to take the power of judicial review away from the Judicial Branch. It's no-where in the Constitution. Past presidents have only allowed judicial review because it's tradition. It's no-where rooted in the real law or the real Constitution because our founding fathers knew this would happen.

quote-john-marshall-has-made-his-decision-now-let-him-enforce-it-andrew-jackson-307023.jpg
Gonna go out on a limb and guess you aren't familiar with Worcester v Georgia or you wouldn't have chosen that asinine quote

Quick, to the Wikipedia Cave, Robin!
 
Gonna go out on a limb and guess you aren't familiar with Worcester v Georgia or you wouldn't have chosen that asinine quote

Quick, to the Wikipedia Cave, Robin!
I've never heard of Worcester except for his shire's sauce and everyone knows who Andrew Jackson is. That tells you all you need to know. Andrew Jackson won.
 
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