Yesterday, Californicate Federal Judge Virginia Phillips told the U. S. military how to run the armed forces by declaring Don’t Ask, Don’t Tell (DADT) to be unconstitutional and issuing an injunction against the policy. What next? Will she require all battle plans to be cleared by Her Highness?
Whatever one thinks about DADT, this is an absurd assertion of judicial power that is itself unconstitutional, so absurd it provides an opportunity.
For far too long, state and federal authorities have bowed down to each and every order from the judiciary, no matter how much it exceeds proper judicial authority and subverts constitutional democracy. Usurpation of power by the judiciary has gone unchecked leading us close to a dictatorship of black robes. This is far from what our Founding Fathers intended and erodes our constitutional democracy. They set up the branches of government to check the power of each other. But no one of late has been checking the power of the judiciary. And the judiciary is stuffed with miniature dictators who care not one whit for the Constitution except to be sown into fig leafs to disguise their naked power.
But here we have a ruling so absurd and divorced from constitutional authority that it invites a much needed slap-down. Her Honor is wearing “Slap me down NOW” on her robes. This begs a president to politely say, “I appreciate the concern of Her Honor. But last time I looked, I am the Commander-in-Chief, not her. She has exceeded her authority with her ruling. And I will therefore consider it of no effect and carry on accordingly.”
It would not be the first time a President has told judges what to do with their rulings. But it has been way too long since a President has done so. We desperately need a victory, however small, against heretofore unchecked judicial power.
But with our current President, I am not holding my breath.
By the way, Phillips was appointed by Bill Clinton. That President also did great damage to our judiciary.
UPDATE: The Obama Administration is appealing the ruling. It’s not a slap down, but it’s better than nothing.