Gone are the days when we were ruled by nine unelected black robes. That is old-fashioned. The Millennial version of post-constitutionalism is that a liberal group can get any of the 670 district judges in one of the 94 district courts to rule on any abstract public policy – be it fiscal, social, cultural, national security, border – and that is regarded by the political class as “law.” That includes even when Obama himself violated the law and invented a policy that never existed since George Washington. Trump is now compelled to allow Obama’s policies to rule as a third term. Who needs a constitutional amendment to expand the terms of Democrat presidencies when you have the courts?
Late Friday night, a district judge in Alaska ruled that Trump must continue Obama’s moratorium on drilling permits in the Arctic Outer Continental Shelf. Sadly, it’s not even newsworthy when a judge mandates that Trump continue Obama’s discretionary and often lawless executive orders. And of course, the Republican Party treats it as a legitimate order and continues to peddle the myth that judges have such power. But this particular order was jarringly, absurdly transparent in giving away the game of the legal profession.
“The wording of President Obama’s 2015 and 2016 withdrawals indicates that he intended them to extend indefinitely, and therefore be revocable only by an act of Congress,” wrote Judge Sharon Gleason, an Obama appointee, about Obama’s decision to permanently lock up 98 percent of the Arctic Outer Continental Shelf from drilling. Read that carefully again, and you will see what I’ve been warning for the past few years. Now that even conservatives have conceded that district judges can abstractly “veto” public policy up to and including simple executive decisions to reverse the executive decisions of the past administration, it’s as if they have crowned Obama president forever. So long as a Democrat president desires his policies to remain permanent, well, permanent they must remain. In the words of Gleason, Trump’s decision to merely restore the permitting process in place before Obama is “unlawful” and “exceeded his authority” because he is bound by the discretionary and often lawless policies of his predecessor.
So what if Trump announces a shutdown of all cross-border migration this week, and a judge tells the next Democrat president, “Of course you must continue it. Don’t you know that President Trump indicated he meant it to stand indefinitely?”