A conservative judge gave Attorney General William Barr and the Department of Justice (DOJ) hell in a recent court opinion, suggesting that the AG had seriously overstepped his constitutional authority and making it clear that some on the right are sick and tired of how the DOJ is being politicized under President Donald Trump.
In an op-ed she wrote for Politico, Kimberly Wehle, a former assistant U.S. attorney who now teaches law, notes:
“In a jaw-dropping opinion issued by the 7th U.S. Circuit Court of Appeals in Chicago on January 23, Judge Frank Easterbrook—a longtime speaker for the conservative Federalist Society and someone whom the late Justice Antonin Scalia favored to replace him on the U.S. Supreme Court—rebuked Attorney General William Barr for declaring in a letter that the court’s decision in an immigration case was ‘incorrect’ and thus dispensable. Barr’s letter was used as justification by the Board of Immigration Appeals (the federal agency that applies immigration laws) to ignore the court’s ruling not to deport a man who had applied for a visa to remain in the country.”
Judge Easterbrook’s opinion goes to a fundamental principle that has been one of the foundations of our nation: The legislative branch makes laws, the executive branch enforces them, and judges determine whether or not those laws are just and fair based on the U.S. Constitution. In essence, Barr was suggesting that the Justice Department and President Trump are no longer bound by that precedent:
“Those who say ‘it could never happen in America’ need only consider Easterbrook’s holding, which is so elementary that the very fact that he put it in writing underscores how dangerous Barr’s defiance is: ‘The Attorney General, the Secretary, and the Board … are not free to disregard our mandate in the very case making the decision.'”
In essence, the question we face today is one that we’ve never confronted before: What happens when the executive branch violates the law and thumbs its nose at the courts?
The answer to that question will determine whether or not the United States remains a representative democracy or continues its terrifying slide into authoritarianism.
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