Lawfare

When the Left encounters a government decision (policy or law) that it doesn't like, a common strategy is to conduct "lawfare"—bring a lawsuit in front of a friendly court (i.e., a court with predictably liberal judges) and convince that court to issue an injunction. This tactic works well, delaying or scuttling government actions effectively.

As long as the judge bases his or her ruling on the law and on past legal precedent, lawfare, although frustrating and often maddening, is part of our legal system and must be tolerated. But when a judge completely disregards the law and instead bases an opinion on what he or she thinks the author of the decision intended, we move into a very dangerous area.

That's what happened in the recent ruling against Donald Trump's decision to limit immigration (temporarily) from six mostly Muslim countries. Mollie Hemingway comments:

Throughout the ruling, Judge Watson [of Hawaii] concedes there’s nothing about the executive order that would be problematic if not for his interpretation of Trump’s statements made in the months and years prior to issuing it. He repeatedly states his feeling that Trump had a bad motive in issuing the order.

Judges using campaign rhetoric to infer intent instead of plainly evaluating the law as written is a dangerous development. Also because the public can witness the selective use of this trick, it undermines confidence in the judiciary at a time when the judiciary can’t afford too much erosion of trust.

Imagine, for instance, if [conservative] judges ruled that the Obama-era Health and Human Services mandate forcing nuns to pay for birth control and abortifacients against their religious will was motivated by President Barack Obama’s religious animus, since he had made derogatory comments during his campaign about people bitterly clinging to God. Judges have ruled against powerful mandates such as that one for much better reasons than a parsing of Obama’s campaign rhetoric or political speeches.

Or remember when the Supreme Court saved Obamacare by ruling it constitutional because the individual mandate — the penalty people had to pay for not buying health insurance — could be considered a tax? They ruled that way despite the fact that President Obama repeatedly maintained that the mandate was not a tax.

Judges should rule on the letter of the law and, if you want to go one step further, on any affects implied by the actual words in the written law. They should not try to read the author's mind; they should not look back at comments made by the author in months or years past, and they should follow the constitution and well-established precedent. When they don't so this, judges erode the respect that all American's should have for our legal system. That's beginning to happen with ruling like the one offered by Judge Derrick Watson.