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An American oligarchy of 5
Saturday June 21, 2008
By Ellis Washington
Justice Antonin ScaliaThe court lacks the authority to impose its chosen remedy.~ Justice Antonin Scalia
Prologue
The tyranny of the judicial branch was realized by Thomas Jefferson shortly after the original sin of Marbury v. Madison (1803) was handed down, where the Supreme Court seized the right to be the final authority on all constitutional questions – not Congress, not "We the People," but an unelected cartel of five justices can now with Stalinesque efficiency control every aspect of our lives. That judge-created doctrine of law is called judicial review. In 1820, just 17 years after the Marbury decision, Jefferson lamented to a friend in a letter, "To consider the judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy."
Jefferson and all of the Constitution's framers through their protracted war with King George III understood that all governments of men – whether from a king (monarchy), the people (democracy, which the framers called "mobocracy") or a majority of five Justices on the Supreme Court (oligarchy) – had the potential of being a tyranny, because it often violated natural law and natural rights of We the People, which come from God and therefore cannot lawfully be contravened by man.
Case: Dada v. Mukasey (June 17, 2008)
The Court Monday in the Dada case addressed the question of how to treat aliens subject to orders of voluntary departure who, before their visas expired, which would force them to leave the country, can now successfully delay the extradition process based on the discovery of "new facts."
Prior to the Dada case, existing immigration law and Supreme Court precedent allowed aliens who agreed to leave the country voluntarily to retain the right to file motions to reopen their cases regardless of whether or not their claim had been resolved. The conflict was that petitioner Dada wanted more time to file appeals, while the government, which was the respondent in this case, wanted the Court to follow precedent and have Dada file his appeals from his home country of Nigeria, not from America.
Justice Anthony Kennedy, writing the majority opinion for the Court, dispensed with both the petitioner (Dada) and the governments' remedy and essentially drafted new immigration law, legislating from the bench. Kennedy found that tolling (stopping) the voluntary departure period would invite frivolous filings and rob the government of its end of the voluntary departure bargain, while the government's solution would leave aliens "between Scylla and Charybdis" – forced either to ignore their extradition date (adding additional statutory penalties) to wait for the motion to be resolved, or leave the country on time and forfeit a potentially valid claim. The petitioner in the case, Nigerian native Samson T. Dada, entered into a sham marriage to a U.S. citizen in 1999 after overstaying the temporary visa on which he entered the country. This (along with Mexican women crossing the Rio Grande eight and a half months pregnant) are two of many common subterfuges by legal and illegal aliens to circumvent America's immigration laws by sneaking into this country and delaying or avoiding extradition by any means necessary.
A court of appeals panel rejected Dada's claim in per curiam opinion, relying on an earlier case that found a tolling approach would allow aliens to stay longer under orders of voluntary departure than Congress had ever intended.
Chief Justice John Roberts, along with Justices Thomas and Scalia, in a dissenting opinion, argued that the majority opinion rested on a false premise. Comparing voluntary departure to a plea bargain in which a defendant gives up a right to appeal, Scalia argued that "aliens granted orders of voluntary departure effectively forfeit their right to reopen their cases in the limited time in which they must depart." Calling it commonplace that litigants' pursuit of one type of relief often requires the surrender of another, Scalia said the voluntary departure bargain "seems entirely reasonable to me." I agree.
The Dada case underscores the original sin of Marbury v. Madison, a case that over 200 years ago established the diabolical doctrine of judicial review whereby an unelected oligarchy of five justices have the unchecked, godlike power on all constitutional questions – to dictate to "We the People" and our elected representatives in Congress not only what the law is, but what the law ought to be.
Under this perverted paradigm of jurisprudence, America is no longer a representative republic as the Constitution's framers intended, but an omnipotent oligarchy where 300 million people are essentially held hostage to a capricious, oppressive, illegal tyranny of five.
Congress was clear in its original intent to stem the tide of illegal immigration and sought to lessen the bureaucratic strictures many legal aliens were exploiting by adding transparency and common sense to existing immigration law and policies.
However, the Court in the Dada case, threw congressional intent, judicial precedent and the will of the people out the window to literally give a green light to every unscrupulous legal and illegal alien in the U.S. to stay as long as they desire, to file appeal after frivolous appeal – and if you can't afford your own attorney, no worry because these dupes over here called "We the People" will pay for an attorney for you whether they like it our not. Why? Because five liberal activist hacks on the Supreme Court say so, that's why.
Epilogue
America! We have got to do something at the congressional level to reign in these renegade justices who treat the U.S. Constitution like toilet paper, who arrogantly pervert the original intent of the Constitution's framers to comply with their own personal policy preferences. In my opinion, this alone is grounds for impeachment proceedings against these five traitorous justices – Kennedy, Souter, Ginsburg, Breyer and Stevens.
The Dada case is a blatant violation of the rule of law, as Justice Scalia lamented in the Guantanamo Bay cases decided on June 12, by which another Kennedy-led majority of five gave full constitutional due process rights to 270 hateful, murderous, irredeemable Muslim terrorists. Ironically, contrary to President Bush's equivocation with these detainees, that liberal lion, President Franklin Delano Roosevelt, had tried eight and executed six Nazi terrorists in one month in the Nazi saboteur case "Ex Parte Quirin" (1942) – 66 years ago!
In the Guantanamo Bay case, Scalia predicted that decision "will make the war harder on us. It will almost certainly cause more Americans to be killed." Likewise, the Dada immigration decision has perverted the rule of law to such an extent that I predict this case will further erode existing immigration laws and ultimately will make America's borders and our citizens less protected from enemies within and abroad.
In a word, the Dada decision will make it easier for legal and illegal aliens, many of whom desire to do this country great harm, to become permanent, de facto U.S. citizens thanks to the turncoat Justice Anthony Kennedy and his four liberal comrades on the U.S. Supreme Court.
Ellis Washington, former editor at The Michigan Law Review and law clerk at The Rutherford Institute, is a graduate of John Marshall Law School and a lecturer and freelance writer on constitutional law, legal history, political philosophy and critical race theory. He has written over a dozen law review articles and several books, including "The Inseparability of Law and Morality:
The Constitution, Natural Law and the Rule of Law" (2002), "Beyond the Veil:
Essays in the Dialectical Style of Socrates" and He has just completed the manuscript to his latest book, "The Nuremberg Trials: Last Tragedy of the Holocaust" (2007).
Washington's latest book, "The Nuremberg Trials: Last Tragedy of the Holocaust," can be pre-ordered by calling 800-462-6420, promotion code "UPREPUB."
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