In an article in the Harvard Journal of Law & Public Policy in the Summer of 2002, Judge Robert Bork opined, “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them”.
Soon the court is going to rule on President Trump’s executive order effecting immigration. The Constitution is perfectly clear on what power the President has and what power rests with the Congress. The problem is the original Constitution is no longer the law of the land because it has been superseded by unconstitutional acts that have emasculated it, removed nearly all of its prohibitions and added provisions that, as Judge Bork eluded to, supposedly favored the people.
The difference in this fight is that it is the new government wanting to retain an unconstitutional power and the people are wanting to strike it down. This is in complete contrast to the debates that raged over the introduction of the unconstitutional acts Bork refers to where the people demanded the unconstitutional laws not be struck down. As Bork, has eluded, the Justices now are nearly fully politicized to support one side or the other by putting their finger in the air to test the way the wind is blowing and can usually find precedent to support it without having to refer to the Constitution because it just might not condone it. It is a practice called stare decesis or settled law, a concept supported even by the likes of Justice Thomas.
My own opinion is that the Ninth Circuit will opt out of making any final decision and either send it back to the lower court or rule against the government that will appeal it to the Supreme Court where with 8 jurists, anything is likely to happen including sending it back to the Ninth Circuit’s decision by refusing to hear the appeal. That latter action by the Court is not permitted under the Constitution but the rules of the Court have been written by the Congress to allow it in order to not place the Supreme Court in the position of making unpopular decisions.
I trust you noticed the timing of Bork’s coverage of the misdeeds as the last two-thirds of the twentieth century coincides with when the 40 years of Democrat rule occurred, specifically the reigns of Franklin Roosevelt and Lyndon Johnson.