By: Daniel Horowitz | February 06, 2017
It’s still hard to believe we now live in a country where a district judge can demand that we bring in refugees from state sponsors of terror and failed states saturated with terrorists and no data systems during a time of war. It’s almost unfathomable that a district judge, an institution created by Congress, can overturn long-standing refugee law and bar the federal government from prioritizing persecuted religious minorities for refugee resettlement. All in contravention to statute, numerous clauses of the Constitution, the social contract, the social compact, popular sovereignty, jurisdictional sovereignty, and 200 years of case law.
If Obergefell redefined the building block of all civilization, Judge James Robart’s ruling redefined the building block of a sovereign nation. It’s hard to comprehend a judicial opinion more divorced from our Constitution, sovereignty, fundamental laws, founding values, history, and tradition. It’s also hard to imagine an opinion that is of greater consequence — unless it is ignored.
In the long run, Congress must strip the federal judiciary of their power grab and restore Congress’ plenary power over immigration, as it was since our founding. However, in the meantime, it’s time to make impeachment great again.
Impeachment was a critical check on abuse of power
Before the growth of political parties killed the separation of powers, the tool of impeachment was regarded by our founders as one of the most effective ways of checking the executive and judicial branches of government. By my count, impeachment is referenced 58 times in the Federalist Papers and countless times during the Constitutional Convention.
Impeachment [U.S.CONST. art. II, §4] was not only reserved for those who engage in criminal behavior. It was clearly designed to check abuse of power. As the Congressional Research Service observes, Congress has identified “improperly exceeding or abusing the powers of the office” as a criterion for impeachment. James Wilson, one of the preeminent Founders and an original Supreme Court justice who helped draft Article III, clearly annunciated this point: “In the United States and in Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.”
Here are a sampling of quotes and anecdotes from our Founders and congressional history regarding the purpose of impeachment:
- Impeachment was designed to protect against “the misconduct of public men, or in other words from the abuse or violation of some public trust.” Hamilton noted that such offenses were “political, as they relate chiefly to injuries done immediately to the society itself” because real crimes would be prosecuted in court anyway. [Alexander Hamilton, Federalist 65]
- Charles Pinckney stated at the South Carolina ratifying convention that impeachment would be used against “those who behave amiss, or betray their public trust.” [January 1788]
- At the Constitutional Convention, George Mason wanted to slip in the word “mal-administration” to the impeachment clause in order to cover those who “subvert the Constitution.” Although his colleagues opposed the effort because they felt the term “mal-administration” was “too vague,” they clearly agreed with the premise of covering political crimes.
- Hamilton wrote that the power of impeachment alone would be a “complete security” against judges usurping legislative power and would “remove all apprehensions” of those who feared that judicial review would morph into judicial supremacy. [Federalist 81]
- John Marshall, the great judicial strongman of his day and father of judicial review, noted that although he preferred other legislative checks on the judiciary, “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.” 
- The great Justice Joseph Story writes in his “Commentaries” that impeachment was reserved for any usurpation of political power “growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard for the public interests.”
- There were two attempts in the 1960s to impeach Associate Justice William Douglass for his outlandish liberal views that he interjected into the law and Constitution.
Impeachment of judges who openly misinterpret the Constitution and statute for political motivations
Impeaching for political crimes is even more relevant to judges than executive officials because judges are to hold their tenure only under “good behavior.” [art. III §1] This was quite evident from Hamilton’s seminal writings in Federalist #s78, 79, and 81. He felt that impeachment would be the primary check against federal judges abusing judicial review. It is obvious he wasn’t referring to judges committing murder, but rather judges violating the Constitution with their decisions as we are witnessing today.
Perhaps the most relevant quote to Judge Robart and his other colleagues who subvert national sovereignty and replace the most settled area of law with their political yearnings for open borders is this one from the great Justice Story:
Judge Robart knowingly abused the public perception of the courts as the final arbiter of society to issue a nationwide injunction on a president’s policy that is manifestly within our existing laws. He refused to name a single clause of the Constitution or statute that was violated. He failed to mention 200 years of case law that now remain unexplained, including the settled fact that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens.” 
It can truly be said that this was the most radical and dangerous opinion issued by a judge in decades — one that cuts to the foundation of who we are as a nation. As a result of this opinion, not only is the Constitution and the sovereign power of the people subverted, the president is prevented from protecting us even during a time of war, even from failed Islamic states. Robart, along with other judges, has created a First and Fourteenth Amendment right for any one of the seven billion people in the world to affirmatively immigrate here. James Robart “subverted” our Constitution, acted “grossly contrary to the duties” of his office, misled his “sovereign by unconstitutional opinions,” subverted our most “fundamental laws,” introduced “arbitrary power,” betrayed “the public trust,” and directed immediate injury “to the society itself.”
Robart, like many liberal judges, already has a history of inserting politics into the law and the Constitution when he proclaimed “black lives matter” from the bench. He has openly used his social justice agenda, which is fine and appropriate in a political branch of government, to supplant the law, Constitution, and sovereignty of a nation. In addition, the House should examine other judges who violated their oaths of office on this issue:
- Ann Marie Donnelly, Eastern District of New York
- Allison Burroughs, District of Massachusetts
- Leonie Brinkema, Eastern District of Virginia
- Thomas Zilly, Western District of Washington
- Dolly Gee, Central District of California
While impeachment against a president or Supreme Court justice has essentially been neutered by the political party system, lower level officials in the executive branch and lower court judges don’t want their names tarnished and the headache of a public impeachment trial in the Senate. And remember, it only takes a simple majority vote in the House to force a trial in the Senate.
It’s time for the legislative branch of government to get back on the playing field and stop ceding “squatters’ rights” to judicial usurpations of power. It’s now or never for American sovereignty.