Throw out-of-control Judge Pfaelzer off the bench

Human Events, Apr 24, 1998 by Roberts, Paul Craig

For Shredding Prop 187, Forcing Californians to Subsidize Illegal Aliens

Three to four decades ago, federal judges began falling into confusion about their role in society. Many started acting like Roman pro-counsels and caesars, pre-empting the legislative function and substituting their wills for the will of the people.

Judges are so out of control today that a single federal judge thinks nothing about casting aside popular referendums passed by the votes of millions of citizens and imposing outcomes that are the opposite of what was voted.

The latest example is U.S. district judge Mariana Pfaelzer, who declared on March 13 that California citizens must tax themselves to meet the needs of illegal aliens. Pfaelzer, it seems, is under the influence of University of Chicago professor Martha Nussbaum, who teaches that the concept of national citizenship is too exclusive and "morally dangerous." Justice and equality, she claims, require "allegiance to the worldwide community of human beings."

Californians think not, but who are they to matter? Pfaelzer has thrown out California's Proposition 187, which restricted illegal aliens from living off taxpayers.

Congress has turned a blind eye to tyrannical judges in the past, but Pfaelzer is too much to ignore. Here is a judge, paid by taxpayers and bound by an oath to uphold the U.S. Constitution, acting as a representative for "the worldwide community.

The Constitution is a sovereign document and cannot be upheld by acts that violate sovereignty. By definition, illegal aliens are neither citizens nor legal residents and cannot claim California welfare benefits any more than can China's teeming masses.

No Meaning to National Sovereignty or Citizenship

Pfaelzer's ruling effectively eliminates the concepts of national sovereignty and citizenship, and makes Americans financially responsible for every illegal who crosses the border. Her ruling has grave implications for the concept of national defense. The purpose of armed forces is to defend our possessions from invasion, but any army that wants to invade unarmed can help itself.

The mindlessness of Pfaelzer's ruling caught the attention of Congress and made the people's representatives aware of the alarming absence of checks on the judiciary's abuse of power. On March 24, 11 days after the judge's ruling, the House Judiciary Committee approved a bill that would strip individual federal judges of the power to block or overturn voter-approved state referendums like Proposition 187. The bill would also forbid federal courts from issuing orders or imposing settlements that require tax increases to implement.

This bill is long overdue. In a speech on March 9, Supreme Court Justice Antonin Scalia reminded us that Congress, not the judiciary (or federal agencies), is the legislative body. For the judiciary to function properly, Congress must keep control of law by writing clear statutes. The law has become murky because an irresponsible Congress has grown accustomed to delegating power to the federal bureaucracy to interpret its statutes with regulations.

As a result, Congress does a poor job of crafting law, thereby creating inroads for judges to be legislators. The only real solution is for Congress to take back control over law. A Congress confident in the use of its own powers is the best constraint on the judiciary and regulatory agencies.

Congress has let so much power slip from its hands that forceful actions will be needed to reclaim its power. An appropriate beginning would be the impeachment of Judge Mariana Pfaelzer.

Pfaelzer has violated her constitutional oath and is a prime candidate for impeachment. Her decree destroys self-rule by denying citizens the right to limit their taxpaying responsibilities through the exercise of the democratic process, and she has destroyed U.S. citizenship by eliminating any difference between the claims of citizens and illegal aliens to taxpayer-provided benefits. It is a pitifully weak Congress that can't throw Pfaelzer off the bench.

Mr. Roberts, a nationally syndicated columnist, is senior research fellow at the Hoover Institution.