So the current battle over Trump’s
immigration order is a good example of the difference between “activist” judges
and ”strict constructionists.” The language of the relevant law is completely
unambiguous. It reads:
8 US Code § 1182 - Inadmissible aliens (full text can be found here)
(f) Suspension of entry or imposition of restrictions by President“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
There is no question at all from this section of the US Code
that the president has the authority to do exactly what Trump did, irrespective
of whether one thinks it was wise or not (and I make no judgement here about
that). But Federal Judge James Robart didn’t like what Trump did, so despite
the very clear language of the law he interpreted it “creatively” to justify putting
a stay in place. And the appeals court which is hearing the case may do the
same, since two of the three judges also appear to be “activist” judges.
That is the difference between an “activist” judge, who
tries to get the result he/she wants, vs a ‘strict constructionist”, who
follows what the law says, whether he/she likes the result or not. Of course it
doesn’t help that Judge Robart gave little justification for his ruling.
People love “activist” judges when they rule the way people
want them to, but of course they can just as easily bend the law to results
people don’t want. Personally, I think laws ought only to be made and changed by
elected representatives, not by unelected judges.
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