On 12 November, 2019, another semi-retired District Judge in the Western District of Washington (Seattle) continued the judicial resistance against the Trump administration and the rule of law. Senior Judge Lasnik was appointed by President Bill Clinton in 1998.
The Judge, Robert S. Lasnik, ruled the Department of State violated administrative procedure by deciding the ability of individuals to make simple small arms, already widely available, was not a "critical defense item" in the expansive International Traffic in Arms Regulations (ITAR) regulations.
The Department of State had reached this decision as part of a long running lawsuit brought by Defense Distributed on First and Second Amendment grounds. The temporary order allowing Defense Distributed to publish and distribute its computer code was part of a settlement of the lawsuit, awaiting permanent regulations.
Several Democrat state attorney generals then filed the current lawsuit in the Western District of Washington (Seattle) on ideological grounds, claiming speculative and future damages, to prevent the court approved settlement with Defense Distributed and the Second Amendment Foundation, from going into effect.
Judge Lasnik ignored reality to make this ideological policy decision against the State Department.
The code in question is, and has been, already widely distributed on the Internet. The small arms in question have long been widely available and easily made by individuals. The Obama administration added the code to ITAR for ideological purposes.
The State Department made the argument that individual states did not have standing on international weapons law; the judge said they did, because it affected them! Of course, international law affects everyone, in some way. Not a single actual case of harm was alluded to.
All the files disputed in the case are freely and legally available in the United States already.
The State Department made the argument they were advised they would lose the court case on First Amendment grounds. They decided to settle.
The judge claimed they did not follow proper administrative procedure. The State Department says they did.
The judge sidesteps all First Amendment claims by stating he is ruling solely on administrative procedure.
Judge Lasnik risks nothing through his reckless actions. He will be lauded and applauded by the left; he only risks being overturned. To be overturned, the case will go through months, possibly years more litigation. As I wrote in a previous article:
It is unlikely the plaintiffs will prevail. The legal and technical arguments are bizarre. The State Department reached the settlement on the basis that they would lose the case in court, and because the technical arguments are not reasonable or rational. Judge Lasnik ignores that the State Department has responsibilities in international trade, not in domestic affairs. The judge openly states his opinion that this information will harm communities. He ignores the harm done to communities by ignoring First and Second Amendment rights.
The decision is a classic case of judge shopping and judicial activism. Judge Lasnik does not like what the executive branch is doing. He issues an injunction. He suffers no harm when he is ultimately overturned. He is a Senior Judge already retired, taking cases voluntarily. In the meantime, he causes considerable harm to the defendants. As the defendants in this case are in the Trump administration, that may be his desire.
In the meantime, Defense Distributed and the Second Amendment Foundation, and all American's rights are ground into the dust of delay. The initial court case was started in 2013.
This is another judge usurping power in the judicial "resistance" against the Trump administration and the rule of law.
We have a serious problem in the United States with rouge judges making policy decisions for the entire United States. President Trump was elected in a nationwide election. Judge Lasnik was not.
Justice Thomas has referred to it. Before President Trump, District Judges seldom claimed any power to negate law for the entire country. From Trump v. Hawaii:
In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.Conservatives cannot simply ignore the court, because to do so brings about the chaos conservatives struggle mightily to prevent.
Leftists, on the other hand, welcome chaos as a means of overthrowing the system and bringing about a powerful, unlimited government.
The long term fight has been to replace judges who wield their power to create the "Progressive" government they want with originalists who see their duty, at least in part, to be faithful the the Constitution's limits on governmental power.
The Left's judicial resistance has slowed down President Trump's reforms. At the same time, President Trump has been appointing replacement judges at a record pace.
President Trump has appointed a higher percentage of judges than anyone since Franklin Delano Roosevelt (FDR). FDR appointed 193 Article III federal judges. President Trump has now appointed 159 federal judges, and expects to have 182 in two months. Wikipedia reports there are 870 federal district, circuit and Supreme Court Judges. He expects to have appointed 219 judges when pending nominations are confirmed. He could easily appoint more than another hundred Article III judges in a second term.
Judges such as Robert Lasnik can not be certain their decisions will be upheld in the Ninth Circuit. They have great worries, if their decision goes to the Supreme Court.
They have significant cause to believe the court may trim back their current extravagant power.
In one way, the delaying tactics of the Left have worked against them. With more and more Trump appointees, the chances of their decisions being overturned increase every week.
©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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