Upholding Law is Judges' Jobby Editors
Victoria Advocate, October 12, 2006
No doubt the Bush administration and its allies regard this as yet another arena in which activist judges are trying to circumvent the elected branches of the national government.
U.S. district judges across the West have issued rulings to protect clean air, forests, fish and wildlife, The Washington Post reported. They have acted because the Bush administration has failed to do so. In the rulings, the judges are expressing growing frustration at that executive branch negligence or willful failure.
This judicial frustration, however, results from what the judges see as the Bush administration's refusal to enforce laws Congress passed and earlier presidents had signed into law.
That is not surprising, given that this administration routinely disregards the U.S. Constitution and existing laws in the name of national security and the war against terrorism.
Nor is it surprising that this president would impose what amount to his signing statements on measures signed into law by his predecessors. When President Bush signs current laws, he frequently reserves the right to disobey them.
So judges are doing what judges are supposed to do: uphold the law, notwithstanding an administration that does not appear to feel bound by the rule of law.
And in the process, "you are seeing frustration in the federal judiciary," Dan Rohlf, a law professor at Lewis and Clark Law School in Portland, Ore., told The Post.
"When judges express that frustration on paper, which is not all that often, they are often reflecting what they see as a systematic effort to get around the law," Rohlf added.
It is unfortunate that the Republican-led Congress so often lets this administration get by with disregarding laws earlier Congresses passed.
With a few notable exceptions in both chambers, congressional Republicans let Bush trample on that branch's constitutional authority as he seeks to expand his executive power beyond any bounds the framers ever envisioned.
When, for example, this state's senior U.S. senator brags about agreeing with the president 95 percent of the time, as she did in a recent meeting with the Victoria Advocate's editorial board, Kay Bailey Hutchison is reverting to being a cheerleader, rather than a discerning member of a separate, co-equal branch of the national government.
Contrast that with what the Western judges are doing to uphold both the law and the integrity of their separate, co-equal branch of the national government.
U.S. District Judge James Redden of Portland, Ore., has presided over a case involving endangered salmon as long as the Bush administration has been in office. So the judge should have a pretty good idea of what the evidence says and if it shows that the executive branch is or is not doing what the law requires.
He recently ruled that the responsible federal agencies "have repeatedly and collectively failed to demonstrate a willingness to do what is necessary," as the Endangered Species Act requires, to save those fish in the Columbia and Snake rivers.
An independent judiciary is an absolutely necessary bulwark against an overly ambitious executive branch largely unchecked by a subservient legislative branch. Changing control of Congress next month also would help restore the proper checks and balances in Washington, D.C.
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