Wednesday, February 8, 2017


LEGAL CORRESPONDENT, THE LATE LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939. "If Giant Catfish former demigods can publish so can ghosts" 
 Rarely seen outside of our Admiralty Law Section our ghostly senior legal commentator has asked for some space to discuss a legal concern of more broader interest of late.

 Anyone who has been following the court battles over the President's so called "Travel Ban" has to notice the readiness with which certain West Coast Federal Courts almost unquestioningly decided to grant standing to the two plaintiff States.  Time works changes and brings into existence new conditions and purposes. However, the constitution's separation of powers should be sacrosanct. The plaintiff States in the exemplar litigation, on the face of their arguments, have no place in court other than their inherent right as States to sue the Federal Government, and that their only venue would be the  Federal  Court system. These States have no real cause of action in the judicial forums.  Over time subtler and far reaching means of discernment of the true, authentic and ordinary evolve. 

 Unfortunately the art of argument for argument's sake also evolves.  Protection of our borders is a function of the executive branch of the Federal Government, It is not now, never has been, nor should it ever be a function of the judiciary. The standards of proof of a judiciary system have no place in tactical and strategic decisions that affect public safety that so often must be made on less than full and certain information. Border protection clearly is an executive function and naturally so. When the issue is the placement of restrictions upon aliens or even classes of aliens seeking to enter the nation who may present a danger to public safety, it is the executive branch that rightly by virtue of logic, and authorization by statute, and conformance with the US Constitution  may impose "restrictions" on any such aliens at any time. This conforms to logic, actions to exclude enemies must be timely and tactical, not the result of judicial deliberations. This conforms to the Constitution's separation of powers, and conforms to statutes [ specifically see 8 USC 1182 (f) ]. Moreover in such instances the actions of the President are directed towards aliens located beyond our borders. The act of entry as so often noted in admiralty law is not a right but a privilege granted by a sovereign state. By the Constitution, logic, and statutory authority the agent for the sovereign United States in controlling entry is the President of the United States. No judge, no state official has the right, duty, and obligation to execute this executive power. The States in entering the tribunal in this exemplar case claim to be representing  in part aliens seeking lawful entry. No state within the American federation has the right, duty , or obligation to act as attorneys in fact for aliens not within the state's borders. The case under consideration should have been dismissed upon the opening statements as the plaintiffs have no real standing. 

 The restriction placed upon certain aliens by the President in the instant case consisted of a 90 day delay in the acceptance of visa applications or the processing of visas from six specific nations known to harbor significant numbers of terrorists seeking entry into the United States. The express purpose of the restriction described in the instant Executive Order was to allow time for the development and implementation of improved vetting procedures relative to such visa applications. Considering that the relevant statute grants the President the authority to impose any restrictions he deems necessary on "any alien or class of aliens" this action appears more than reasonable, prudent, and just. No one who examines the issue without prejudice will find any legal, constitutional , moral, or ethical problem with the action per se. Indeed the President could have issued a restriction of indefinite duration barring any and all travelers from the enumerated nations and it would have been perfectly legal. The plaintiff States in the instant case use the word "ban"to describe the current executive ordered temporary restrictions to further their argument that somehow "religious freedom" as protected under the US Constitution is somehow being invoked. The purpose of the US Constitution is not to protect the freedoms of aliens exterior to our borders. Refusal to allow entry of religious groups that advocate breaches of the peace as part of their basic doctrine is not a denial of their religious freedom, they are free to practice their religion elsewhere. However, the President of the United States has a right, duty, and obligation to protect the people of the United States from dangers entering from without. 

 The case under examination has precipitated a constitutional crisis. The crisis is a conspiracy by certain political interests, who have unusual influence inside two states of the United states colluding with certain federal judges to unlawfully usurp the executive power of the President of the United States under the feigned cover of judicial fiat. A conspiracy against the constitution is an impeachable offense by a Federal judge. But the people in whose hands power finally resides should know that impeachment is not the only way to remove an unrepentant, miscreant from the bench. Having disposed of the litigation at hand as utterly without legal merit and exposing it as a conspiracy against the executive and the people who placed the executive power in the hands of the President we need to move on to how to prevent this from happening repeatedly.  The way to prevent such an undesirable culture of corruption within the judiciary is for the people to know how to remove judges who show these tendencies.


 Most people assume that impeachment is the only means of removing a federal judge. This  probably erroneous belief is based in large part on the Constitution's grant of "good behavior" tenure to Federal judges. People have assumed that "good behavior" is defined as behavior that does not cross the threshold into an "impeachable offense". This isn't necessarily so. A review of history especially of English practice, early state constitutions, and writings of the founding fathers reveals judges have long been removable upon a judicial finding of misbehavior far short of an "impeachable offense". Judicial "misbehavior" traditionally may include incompetence. When judges believe that they may exercise the executive authority as it suits their political tastes, voiding the acts of the elected executive without the most clear constitutional grounds, that is manifest incompetence.  Saikrishna Prakash, Herzog Professor of law , University of San Diego  and Steven D.Smith, Warren Distinguished  Professor of LAw , University of  San Diego  have written extensively on this subject. They note: 

"....good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure. Anything that might be held—land, licenses, employment, etc.—could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law. Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law. authors. "

 So it would seem that the first step in policing an out of control Federal judiciary would be a demand by the people upon their Congress to pass a statute formally establishing adjudication of "good behavior" in ordinary courts or a special tribunal for such purposes. The second step would be the establishment of judicial watchdog groups to monitor judicial behavior and coordinate efforts at filing formal violation of good behavior complaints. The public may be assured that the tenured judges of the nation will fight tooth and nail to avoid such scrutiny. But a strong political movement to implement such measures will shake up judicial culture and complacency. Once such a law is passe expect the federal judiciary to find it "unconstitutional". The people should appeal any such finding to the Supreme Court and if that court rules against a formal delinkage between "good behavior tenure" and "impeachment" the political agitation for a legislative mandate for such a delinkage should immediately restart. The persistence of such political efforts at judiciary reform would encourage many justices to reexamine their prejudices, political activism from the bench, and look more frequently to the actual letter of the law. 

 As most of you know I'm dead and have been dead for some time. I met the Great Namazu on the steps of the US Supreme Court building which I was haunting and he convinced me to take up pen again to write opinion on the law for the American Admiralty Books blog. I do notice that as a dead justice my opinion is far less regarded than when I sat on the bench. The people of the United States shouldn't think that things will change for the better because I think they ought to and have published an opinion. Neither will things change just because you elected a unique personage as President. Democracy is hard work. If you want to reform the judiciary that is so clearly abusing the public , the public must respond. Start the movement to make it easier to remove overstepping Federal judges. The President can't do that for you. If you want the President to exercise the executive functions and the Judges to exercise the judicial functions you have to close the lid on legislation from the bench. That means some legal scholarship and political action. I can't give you the complete blueprint for action in this limited format. But below are some excellent references to help you get started. Be noisy when you start, just getting off to a strong start may cure some of these judges of overreach. 


 Hanging out near Heaven's gate one day I observed a dead lawyer approach St. Peter. Pete was very sorry to inform the barrister that lawyers simply weren't allowed past the gate. Just as Pete had spoken a tall and distinguished looking grey headed man in judicial robes and carrying a gavel strode right past Pete and into heaven proper like he owned it. The disappointed barrister asked Pete why someone who was so obviously a federal judge was let in if lawyers were barred entry. St. Peter replied "Oh, that's not a Federal Judge, that's just God, he thinks he's a Federal Judge". 

Plese living people, put a stop to the American judicial attitude , assert your power. 


U.S. CONST. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .”).

 U.S. CONST. art. I, § 2, cl. 5; id. art. I, § 3, cls. 6-7; id. art. II, § 4. 3. See id. art. I, § 3, cl. 7 (declaring that judgment cannot extend beyond removal and disqualification); id. art. II, § 4 (stating that officers convicted shall be removed).

U.S. CONST. art. I, § 8, cl. 18 (providing that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”).


Judiciary Act of 1789 § 14 (The All-Writs Act), 1 Stat. 73, 81-82 (“And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”).

. 28 U.S.C. § 354(a)(3)(A) (Supp. 2006) (“Under no circumstances may the judicial council order removal from office of any [Article III] judge appointed to hold office during good behavior.”).


  Suzanna Sherry, Judicial Independence: Playing Politics with the Constitution, 14 GA. ST. U. L. REV. 795, 798 (1998) (implying that good-behavior tenure means that there are good textualist reasons to limit impeachment to extreme cases of judicial misconduct).

  Sam J. Ervin, Jr., Separation of Powers: Judicial Independence, 35 LAW & CONTEMP. PROBS. 108, 117 (1970) (sample counter argument holding that impeachment was intended to be the exclusive means of removal because it is the only mechanism mentioned); Merrill E. Otis, A Proposed Tribunal: Is It Constitutional?, 7 U. KAN. CITY L. REV. 3, 38-41 (1938) (same)

 Prakash, supra note 17, at 1035-42 (describing how almost all Representatives thought that the Constitution permitted the removal of executive officers by means other than impeachment). 


THOMAS JEFFERSON, Proposed Constitution for Virginia (June 1783),

THE FEDERALIST NO. 80 (Alexander Hamilton), (Opining that the experience of Great Britain provides an excellent example of the institution of good behavior) 



N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (Brennan, J., plurality opinion) (“The ‘good Behaviour’ Clause guarantees that Art. III judges shall enjoy life tenure, subject only to removal by impeachment.”); see also United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955); Redish, supra note 5, at 698-99 (arguing that good behavior is a reference to impeachment).


United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (holding that the scope of the pardon power would be determined by reference to English law, as the pardon power was borrowed from England).


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