Supreme Court to Trump lawyers: Drop dead

 Iknow a lot of people who are absolutely convinced that Democrats stole the election and that Donald Trump is the rightful president-elect. And, for a while, there was some hope that one of the Trump campaign’s Hail Mary lawsuits would throw out the election results in a handful of close states. That hope dimmed as, one by one, the lawsuits were dismissed and now the Supreme Court has closed the door on a second Trump term entirely.

The decision from the Supreme Court in the case of Mike Kelly v. Pennsylvania is the shortest and most to-the-point opinion that I have ever seen rendered by the Court. The decision reads, in its entirety:

The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.

The implication of the decision is much more important than the quantity of the 18 terse words implies.

The request for an injunction in the case claimed that Pennsylvania election law violated both the state and federal constitutions. The request, made by Rep. Mike Kelly (R-Pa.), made a number of claims including that early voting was unconstitutional, that Pennsylvania had illegally expanded absentee voting, and that the Pennsylvania supreme court erred in dismissing the lawsuit at the state level. The applicants requested an emergency injunction stopping the state from certifying the election.

Note that the applicants did not allege election fraud in their appeal to the Supreme Court. The hype in the media and at the unofficial ‘hearings” notwithstanding, fraud claims were conspicuously absent from the legal documents that the Trump campaign brought to court.

Even so, the Supreme Court unceremoniously threw the case out with a succinct statement that it would not hear the claims against Pennsylvania. The implication is that the claims made in the lawsuit were not worthy of the Court’s time. It is important to note that there appears to have been no dissent from the Supreme Court’s conservative majority, which includes three justices appointed by President Trump.

There was never serious legal doubt as to how the case would turn out. The time to have questioned election law was before the election, not after voters render a decision that is unpopular in some circles. Act 77, a Pennsylvania law at the center of the suit, was passed in 2019 with strong Republican support yet no legal challenges were filed until after Trump lost the state. No court would throw out an election on that basis.

My Trump-supporting friends must now make a decision on what to believe. On one hand, they can continue to believe that Donald Trump was cheated out of an election victory and that Joe Biden is an illegitimate president-elect. However, that belief requires them to also believe that there is a massive conspiracy to cover up the theft of the election. This conspiracy now has to be enlarged to include Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neal Gorsuch, and Amy Coney Barrett as well as Republican-appointed judges in several states.

The conspiracy would also have to include Attorney General Barr, who has come forward to tell the country that “we have not seen fraud on a scale that could have affected a different outcome in the election.”

On the other hand, they can accept that Donald Trump lost an election that was free and mostly fair. This belief is supported not only by the about 40 judicial decisions against the Trump campaign, but also by the fact that the Trump legal team has yet to file a lawsuit that includes the same fraud claims that they have been making in the court of public opinion for the past month.

Trump’s lawyers have two separate and very different narratives: one for the courts and one for the voters. When deciding which version of reality to believe, Trump supporters should ask themselves if the election fraud was so pervasive and blatant, not only why the Trump legal team has not presented their evidence in court, but why the Department of Justice is not investigating and making widespread arrests as we speak.

As a final point, even if the results in Pennsylvania were somehow overturned and Republicans could turn the state red, Joe Biden would still win the Electoral College with 286 votes. If either Georgia or Michigan, both with 16 electoral votes, turned red, Biden would still have the 270 votes necessary to become president. Trump needs to flip three states and the Supreme Court just signaled that it will not entertain requests to override the will of the people. The election is over.

To me, the truth is clear. Donald Trump lost and Joe Biden is the legitimate president-elect. I hope that more Republican elected officials tell their constituents that truth before the situation devolves into unnecessary bloodshed.

Posted on The Racket

A very COVID Christmas: Why pandemic guidelines are not an assault on religious liberty

 It’s beginning to look a lot like Christmas is going to be a dud this year. The Coronavirus is surging around the country and the US is setting records on an almost daily basis for new cases, hospitalizations, and deaths. State and local governments are issuing new public health restrictions and guidelines that will be in place over the holiday. For many Americans, such as those in California, that means that Christmas will be celebrated under shelter-in-place orders.

I’m seeing a lot of posts in my social media feeds from friends and politicians who believe that the COVID guidelines represent an assault on religious freedom or a resumption of the War on Christmas. Nothing could be further from the truth.

What Rep. Jordan and many others fail to acknowledge is that the Coronavirus pandemic is a real public health threat and that the illness is spread from person-to-person. Travel and public gatherings – Christmas or otherwise – represent an opportunity for infected people to spread the virus around the country and quite possibly end up killing their loved ones.

It isn’t a matter of Dr. Fauci and others simply being grinches who want to destroy Christmas, it is a question of the health and lives of hundreds of thousands of Americans.

A few weeks ago, I described how the Supreme Court upheld the validity of the idea of emergency public regulations in Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo. While the Court prevented New York from instituting onerous regulations that singled out religious services, it did not say that all restrictions on religious groups were unconstitutional. Rather, the Court agreed that “stemming the spread of COVID–19 is unquestionably a compelling interest.”

In the decision, the Court laid out a test for whether such restrictions were permissible under the First Amendment. To be constitutional, the regulations must first address a legitimate local problem such as COVID clusters in local churches. Second, religious institutions cannot be singled out for more restrictive regulation than secular organizations. However, there is a loophole here. Rules can be narrowly tailored if the government can show that there is a compelling state interest. Temporarily closing the doors of churches that ignore all health guidelines and host superspreader events could be such a compelling interest.

I’ve always believed that freedom must be tempered with responsibility. When people act irresponsibly with their freedoms, those rights often tend to get restricted and limited. It is no different in a pandemic.

Yes, you have the right to go to church and to Christmas gatherings, but you also have the civic duty to act responsibly and not act as an agent of infection to your family and community. Choosing to exercise your rights in a responsible manner helps us to keep our freedoms as well as showing Christian love to your neighbors.

The Coronavirus pandemic does not mean that Christmas is canceled. It does mean that we need to find alternative ways to celebrate. In the 21st century, we have the ability to celebrate the birth of Christ while minimizing the risk to our high-risk friends and family.

What would Jesus do?

Originally published on The First TV

Biden answers on court-packing

 After weeks of vague answers on court-packing, Joe Biden has come forward with an answer to the question of whether his administration would attempt to expand the Supreme Court so that Democrats could appoint additional justices to balance out the new conservative tilt of the Court. In an interview with Norah O’Donnell of CBS, Biden backed away from progressive calls to pack the Court but said that he would consider other methods of reforming a judicial system that Biden says “is getting out of whack.”

“If elected, what I will do is I’ll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it’s getting out of whack,” Biden said in the interview, which will air Sunday on “60 Minutes.”

“It’s not about court-packing,” Biden added. “There’s a number of other things constitutional scholars have debated and I’d look to see what recommendations that commission might make.”

“So, you’re telling us you’re going to study this issue about whether to pack the court,” O’Donnell pressed.

“No,” Biden responded. “Where, there’s a number of alternatives that go well beyond packing.”

“This is a live ball,” O’Donnell responded.

“Oh, it is a live ball,” Biden agreed. “No, it is a live ball. We’re going to have to do that. And you’re going to find there’s a lot of conservative constitutional scholars saying it as well.”

“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets what they want,” Biden continued. “Presidents come and go, Supreme Court justices stay for generations.”

Based on the clip, concerns about court-packing will be relieved, but they won’t completely go away. Biden, who has said as recently as last week that he is “not a fan” of court-packing, nevertheless left the door to expanding the Court cracked slightly open. Biden’s answer was not an explicit statement that he will never support packing the Court, but it did assuage concerns that the confirmation of Amy Coney Barrett would make him flip on the issue.

Polling has indicated that voters think both parties are wrong on Supreme Court issues. Most Americans opposed the rush to replace Justice Ginsburg before the election, but numerous polls show that they also oppose efforts to expand the Court. Further muddying the waters, voters approve of Judge Barrett and believe that she should be confirmed to the Court.

It is no surprise that Biden, one of the most moderate Democratic presidential candidates, would distance himself from the unpopular court-packing plans. Biden and his advisors can certainly read the polls and want to avoid handing Republicans a controversial issue with which to erode Biden’s lead.

The obvious question is what sort of reforms Biden’s bipartisan commission might propose. Earlier this week, an article in Bloomberg discussed several alternatives to court-packing, some of which might even gain support from Republicans.

The most obvious and probably the most popular way to reform the Supreme Court would be to impose term limits on justices. This would prevent situations like the last years of Ruth Bader Ginsburg in which justices hang on to their seats in hopes that a friendly president will be elected. Term limits would still have the problem of making the Supreme Court political as presidents campaign on their appointments to the Court, but they would at least fall upon predictable a predictable schedule rather than upending a campaign when a justice dies or retires.

Another alternative would be to reconstitute the Court with a balanced bench. Under this plan, there would be 10 lifetime justices, five appointed by Democrats and five by Republicans. These 10 justices would pick an additional five federal appeals court judges to join the Court for a one-year term. The 15-judge panel would decide cases for that year. Propoenents argue that such a court would be less partisan and more centrist.

A third proposal is a lottery system in which every federal appeals court judge is appointed as an associate Supreme Court justice. Cases would be heard by a panel of nine randomly selected judges with a maximum of five nominated by any president of one party.

Congress could also take away power from the Court by imposing a supermajority requirement. If the Court is not allowed to make sweeping decisions on a 5-4 margin, it would mean that broader agreement would be needed and fewer decisions would be rendered on a partisan basis. In reality, the Court’s conservative wing often fractures and Chief Justice Roberts seems to be the new swing vote.

The final proposal is most likely because it is the simplest and easiest to implement. Congress could simply strip jurisdiction from specific pieces of legislation. While it remains to be seen whether this method would be constitutional, Article III does stipulate that Supreme Court jurisdiction is limited by “such Exceptions, and under such Regulations as the Congress shall make.”

A downside to stripping jurisdiction is that such laws would be difficult to pass without a supermajority or without eliminating the filibuster. The opposition party would be unlikely to support a law over which the Supreme Court had no jurisdiction. Another weakness is that if a law can be passed stripping jurisdiction, a new law can be passed reinstating it.

The battle for the Supreme Court is not over, but we can breathe easier that Joe Biden is not anxious to pack the Court. As with many issues in our divided era, reform proposals are much easier to make than to push through Congress. This is especially true of sweeping changes and constitutional amendments.

The difficulty in making changes is what the Framers intended and is a feature, not a bug, of our system. That does not stop both parties from desperately trying to find shortcuts rather than following the constitutional guidelines.

Originally published on The First TV

Supreme Court Gives Incomplete Victory To NY Gun Owners

The Supreme Court declined to intervene in a case involving a lawsuit against New York City challenging a law that restricted where gun owners could take their weapons. New York amended the law last year leading the Court to decide that the issue was moot in a two-page unsigned opinion.

Under the original rule, gun owners were limited to transporting their guns to their home, their business, or one of seven shooting ranges that were outside of city limits per USA Today. Gun owners challenged the rule in federal court where it was upheld by the US Court of Appeals for the Second Circuit in 2018, prompting the Supreme Court to hear the case. However, in June 2019, the city changed to the rules in what The New York State Rifle & Pistol Association, the petitioner, called a “nakedly transparent effort to evade this court’s review.”

In the decision, the Supreme Court noted, “After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.”

Responding to claims that the city might arbitrarily change the rule again after the case is dismissed, the Court followed the procedure of vacating the lower court’s judgment and remanding the case back for further proceedings, if necessary. In other words, if New York returns to its old tricks, gun owners can pick up where they left off.

Justices Alito, Gorsuch, and Thomas joined in a dissent which argued that the Court should have rendered a decision on the case because New York only withdrew the regulation when it became apparent that the city would lose the case on the merits. The dissent also noted that, if the city had violated the Second Amendment rights of the petitioners, that they were entitled to damages and payment of legal fees.

The dissent fires a warning shot at the city when it references the Heller decision, calling the city’s violation of the Second Amendment “not a close question.”

In its entirety, the case is a victory for gun owners but an incomplete one. The petitioners achieved their aims of having the onerous restrictions removed, but failed to win damages and repayment of fees.

New York’s retreat indicates that the city knew that pursuing the case further would result in an embarrassing loss and another landmark gun rights case. While gun owners did not get that landmark ruling today, the Court has indicated to jurisdictions everywhere that Heller is now settled law.

Originally published on The Resurgent

Executive Privilege And Impeachment

Over the course of the impeachment process, Trump supporters have argued that the White House is protected from responding to congressional subpoenas by executive privilege. The argument goes that, even if the president has nothing to hide by submitting the evidence subpoenaed by Congress, he is defending the executive’s constitutional independence from Congress.

As one commenter responded on my article from Friday, “He is defending the use of executive privilege by the executive branch so as not to place all the communications of the executive branch under the control of a random radical faction of the House that either party could exploit. There are legal and separation of powers issues at play that are bigger than Trump but the Never Trumpers can't see past their disdain for the man so they assume the worst motivations to explain everything he does.”

If that’s the case, he’s doing it wrong.

Many Trump supporters have accused me of being against executive privilege, arguing that if you aren’t for the absolute immunity claimed by the Trump Administration then you must be against any executive privilege at all. This is a logical fallacy. There is quite a lot of middle ground between unlimited congressional oversight and unlimited executive privilege. Since we live in a constitutional republic, we should ask what the Constitution and judicial precedent say about the issue.

Executive privilege isn’t specifically mentioned in the Constitution but its history in the United States goes all the way back to George Washington. One of the earliest incidents in our history that relate to the issue was in 1796 when, as legal historian Michael Dorf wrote, “President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”

The first court case involving executive privilege dates back to 1807 when Aaron Burr was being tried for treason. Burr’s counsel subpoenaed a letter from Thomas Jefferson, who was president at the time. Presidential claimed, as Trump’s lawyers do today, that the president was exempt from subpoenas requesting specific documents. Chief Justice John Marshall shot down this argument, ruling that presidents are not immune to subpoenas and that even national security was not grounds for refusal to comply. If documents were too sensitive to be made public, Marshall ruled, the court could keep them confidential.

In 1974, the Supreme Court ruled again on executive privilege in United States v. Nixon. As with Trump, Nixon’s articles of impeachment, which were approved by House committee but never reached a full vote, also cited obstruction alleging that the president “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives….” The Supreme Court never had the chance to rule on that specific question due to Nixon’s resignation, but it did rule on his claim of executive privilege in withholding audiotapes and written records from the grand jury convened by the Watergate special prosecutor.

In the decision, the Court agreed to “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," saying, "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."

Nevertheless, the Supreme Court ruled against Nixon, holding, as Dorf explains, that “the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution.” Nixon released the tapes and resigned amid the furor five days later.

President Clinton also attempted to use executive privilege to shield himself from being called to testify in the Monica Lewinsky investigation. A federal judge ruled in 1998 that executive privilege did not shield the president or his aides from subpoenas, although some of the testimony and evidence could be shielded from public view. Clinton ultimately testified under oath in a videotaped deposition.

In another blow to Donald Trump’s executive privilege claims, Dorf notes that “no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government.” Therefore, Trump’s communications with Rudy Giuliani, Lev Parnas, and others would not be covered by executive privilege claims.

Since Giuliani was Trump’s personal attorney, the president could attempt to claim attorney-client privilege, but there are limits here as well. Exceptions to attorney-client privilege include conspiring to commit crimes or acts of fraud. Since Lev Parnas and three other Giuliani associates were indicted for the criminal acts of violating campaign finance laws and advancing “the political interests of at least one foreign official – a Ukrainian government official who sought the dismissal of the US ambassador to Ukraine” while Giuliani was on a shadow diplomacy mission for the president in Ukraine, Trump’s claim of attorney-client privilege may be on shaky ground as well. Although currently unindicted, Giuliani is reportedly under investigation by the US Attorney for the Southern District of New York for campaign finance and lobbying violations.

If the president wanted to fight the congressional subpoenas, he was within his rights to do so even though he would probably lose. Unfortunately, rather than fighting the subpoenas, he chose to instruct his subordinates to ignore them. Subpoenas can be fought but are ignored at the witness’s peril. Legally, the way to fight a subpoena is to file a motion to quash it, i.e. to ask a judge to remove it. That is not what the Trump Administration did. In fact, the White House started ignoring subpoenas back in April 2019, well before the impeachment began.

When the Administration ordered its staffers to ignore legal and constitutional congressional subpoenas, it became a criminal matter of obstruction. For those who have requested a law that Trump broke (even though criminal activity is not required for impeachment under the original meaning of “high crimes and misdemeanors”), the Congressional Research Service cited 18 U.S.C. 1505 in its 2010 report on “Obstruction of Congress.” The statute applies to “any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.” Additionally, 18 U.S.C. 1512 also prohibits witness tampering. Under its statutory power to punish contempt, Congress has the authority to levy fines and even imprison witnesses who ignore subpoenas.

An additional argument made by Trump supporters is that House Democrats should have pursued the legal case to compel the Administration to produce witnesses and evidence. While I do agree that this would have been a smart move politically, no law or congressional guideline mandates that Congress must sue the president in an attempt to force him to do his duty before impeaching him. While the Democrats could have gone through the courts and bolstered the already strong case against Donald Trump, the proceedings were not rendered illegitimate by their decision not to do so.

Historical precedent tells us that executive privilege exists but that it cannot be used as a shield to misconduct in the Oval Office. Executive privilege is not an absolute right to ignore Congress and get out of jail free. While ignoring the subpoenas may have temporarily protected the president from embarrassing revelations about his abuses of power, his obstruction actually sped up his impeachment process in the end. Now the embarrassing information about his Ukrainian activities is coming out anyway in a slow drip that may continue through the election.

While the president is not going to be removed from office, it looks as though defying Congress turned out to be a lose-lose proposition. Once again, the maxim that that best way to handle a scandal is to get out in front of it rather than engaging in a coverup seems to be correct.

Originally published on The Resurgent

Supreme Court Puts Hold On Release Of Trump Tax Returns

Chief Justice John Roberts has issued a stay to temporarily delay the release of Donald Trump’s tax returns to the House Oversight Committee. House Democrats said that they would not oppose the temporary delay, which would give the Court time to consider arguments from both sides.

CNBC notes that the stay does not require a public vote or dissent. A stay generally requires five justices, but, in some cases, one justice can issue the order pending review by the full Court.

The case before the Court centers on a provision of the IRS Code that stipulates that the agency “shall furnish such committee with any return or return information” for which it submits a written request. The law does not exempt the president’s tax information but does note that tax information “shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing.”

While observers wait for the Supreme Court to decide whether it is constitutional for the president to opt out of disclosing his tax information, the president’s lawyers are urging the Court to hear a second case involving presidential tax returns. The president is appealing a decision by the 2^nd US Circuit Court of Appeals that requires Mr. Trump to turn over his tax returns to the Manhattan district attorney. If the Supreme Court refuses to take up the appeal. Trump’s accounting firm, Mazars USA, will be required to submit the returns to the DA office.

As I predicted back in May, the law seems to be on the side of the Democrats so the legal battle may only have the effect of pushing the exposure of President Trump’s tax information closer to the election. If the returns don’t contain incriminating information, Mr. Trump would likely be better served to simply drop the lawsuits and fulfill his promise of releasing his tax returns. Otherwise, he may be hit with the leak of embarrassing tax information just when it will hurt him most.

Originally published on The Resurgent

July 27th, 2019 Trump Wins Victory On Wall At Constitution’s Expense

Yesterday, the Supreme Court ruled in a 5-4 decision to lift a stay by a lower court judge preventing President Donald Trump from reprogramming funds appropriated by Congress to build the wall. The decision will allow the president to use $2.5 billion in funds designated for defense spending to begin construction on about 100 miles of border wall. Republicans applauded the decision, but the blows being struck against the Constitution’s balance of powers will have lasting consequences.

The ruling stems from President Trump’s decision to declare a national emergency on the southern border last February and move money appropriated by Congress for other purposes to the construction of the border wall. Under the president’s plan, $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects would be reprogrammed to finance construction of the wall. Friday’s ruling regards the $2.5 billion for the Defense Department, which Trump had designated for fencing in Arizona, California, and New Mexico.

Plaintiffs in the case were a group of environmental groups led by the Sierra Club and represented by the ACLU. The groups argued that they had “recreational and aesthetic interests” such as “hiking, birdwatching, [and] photography” in areas near the border. In June, a federal judge appointed by Barack Obama agreed and blocked the transfer of funds. Earlier this month, a three-judge panel from the Ninth Circuit upheld that decision in a two-to-one vote, noting that Congress had appropriated $1.375 billion for border barriers, rather than the $5.7 billion requested by the president. In the court’s view, that meant that the $2.5 billion had been “denied by the Congress.”

“As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction,” Judge Michelle Friedland, an Obama appointee, wrote for the court.

The Trump Administration appealed the stay to the Supreme Court, which ruled on Friday, that, “The government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review.” This means that the injunction preventing the Trump Administration from spending the reprogrammed $2.5 billion is lifted and the case returns to the lower court.

The Supreme Court’s five conservatives voted to lift the stay while Justices Ginsburg, Kagan, and Sotomayor dissented. Justice Stephen Breyer proposed a compromise in which the government could negotiate contracts but not actually spend the reprogrammed money until the case was fully decided.

While the ruling is understandably being celebrated by Republicans, the decision, along with another June decision by a different federal court, puts the judicial thumb firmly on the executive branch’s side of the scale that represents the balance of federal power. In the June decision, a Trump-appointed judge rejected a similar lawsuit by House Democrats, arguing that the national emergency spending represented a political dispute that was outside his authority to decide.

The fundamental problem is that courts are tying the hands of Congress in the face of abuses of executive authority. President Trump moved the funds under a federal statute that allows money to be reallocated to address “unforeseen needs” that have not been “denied by the Congress.” In the case of the border wall, neither condition applies. The problem of illegal immigration is hardly unforeseen, having been a hot button issue for more than a decade. The question of the border wall is one that has been repeatedly considered and denied by Congress. In fact, Trump’s national emergency declaration came immediately after the government shutdown in which he demanded unsuccessfully that Congress appropriate money for the wall.

As Republicans were fond of noting during the Obama era, the Constitution gives the House of Representatives the power of the federal purse. If federal courts refuse to rein in an executive that flouts the rule of law in order to bypass an uncooperative Congress, then the constitutional power of Congress is weakened and the president, already much more powerful than the Framers envisioned, becomes even stronger and less accountable. If the courts won’t uphold the constitutional role of Congress in the appropriation of funds then impeachment may be Congress’ only weapon against an out-of-control executive branch.

The judicial battle over national emergency funding for the border wall is not over yet, however. The Sierra Club case will now go back to the lower court to be decided. House Democrats are also appealing the lower court ruling in their own lawsuit against the president’s transfer of funds. It is entirely possible that one or both cases will return to the Supreme Court for a ruling on the question of whether using a national emergency to bypass congressional appropriations is constitutional, rather than the technical question of whether plaintiffs have the legal standing to sue.  

The idea that a border wall is the answer to the illegal immigration problem has become an article of faith on the right. Personally, I have my doubts about whether a barrier along the border would be as practical or effective as its proponents claim (click here for details). However, the legal question that needs to be answered is not whether a wall is a good idea but whether the president can unilaterally transfer funds appropriated by Congress to programs that were specifically rejected by Congress.

For Republicans to back the president on that question is to support a broad expansion of executive power at the expense of Congress. Backing that expansion confirms that Republicans are not a small government party of constitutionalists but a party that favors big government solutions when they come from the right. With many new Trump appointees on the bench, it is entirely possible that Republicans may get their wall over the objections of Congress, but the expansion of presidential power may come back to bite them.

Originally published on The Resurgent

Trump Shelves Citizenship Census Question

After an unfriendly Supreme Court ruling last week, the Trump Administration has dropped its controversial attempt to add a citizenship question to the 2020 census. A spokesman for the Trump Administration said on Tuesday that they would not appeal the Supreme Court’s decision. President Trump had said as recently as Monday that he would consider delaying the census to appeal the ruling.

“We can confirm that the decision has been made to print the 2020 decennial census questionnaire without a citizenship question and that the printer has been instructed to begin the printing process,” Justice Department attorney Kate Bailey wrote in an email to groups opposing the census question.

In a statement, Commerce Secretary Wilbur Ross also confirmed, “The Census Bureau has started the process of printing the decennial questionnaires without the question,” also stating, “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census.”

In fact, even though the immigration status of people living within US borders is clearly within the legitimate interests of the federal government, the Supreme Court ruling written by Chief Justice John Roberts seems to have been the correct decision. The question for conservatives and constitutionalists is how Roberts got from his observation that the “Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire” to his ultimate decision that the Trump Administration violated the law adding the question.

While many pundits are quick to point out that citizenship questions have been asked on the census before, few look to Roberts’ written decision for an answer to the seemingly contradictory statements in the decision. In his justification, the chief justice cited the Administrative Procedures Act, a 1946 law that requires courts to strike down government actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

“The Census Act confers broad authority on the Secretary, but it does not leave his discretion unbounded,” Roberts wrote.

“The Secretary’s decision was supported by the evidence before Him,” Roberts continued. “He examined the Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question and use citizen-ship data from administrative records to fill in the gaps. He then weighed the value of obtaining more complete and accurate citizenship data against the uncertain risk that reinstating a citizenship question would result in a materially lower response rate, and explained why he thought the benefits of his approach outweighed the risk. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

However, Roberts continued, “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action.” This is where Secretary Ross and the Trump Administration ran into problems.

“Viewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA [Voting Rights Act],” Roberts stated.

Roberts goes on to describe how enforcement of the VRA seemed secondary to other considerations, despite the government’s claims to the contrary. Ross tried to involve the Justice Department in the census question, but “DOJ’s actions suggest that it was more interested in helping the Commerce Department than in securing the data.”

“Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision,” Roberts said. “Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.”

In other words, the addition of the citizenship question was not illegal except for the fact that Secretary Ross lied about the reason for wanting to ask the question. Since the Administrative Procedures Act charges the courts to “ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the Supreme Court had a duty to strike down the question when it became apparent that Ross’s justification for asking it was dishonest.

The citizenship question was not struck down because an activist Court wanted to prevent data from being collected about the number of illegal immigrants in the United States (although it is certainly possible that this was the motive of the liberal wing of the Court). The government lost its case because of the reflexive dishonesty of members of the Trump Administration. Given the latitude with which the government is given in conducting the census and the history of census questions about citizenship, there seems to have been no reason for Ross to have lied about the rationale for the question, yet lie he did.

For conservatives and those who wish to abide by the rule of law, the position should be that the government must adhere to the law, even when the law restricts policies that we would favor. If the Court had ignored the Administrative Procedures Act’s requirements for an honest bureaucracy, that would have been an example of judicial activism. To be intellectually and morally consistent, we have to abide by laws that we don’t like as well as those that we do (such as those against illegal immigration).

The ruling also underscores the importance of voting for honest and competent candidates, not just those who say what we want to hear. The addition of the citizenship question could have been accomplished by the administrations of any number of Republicans. Immigration concerns are not unique to the administration of Donald Trump. However, it seems likely that the culture of dishonesty that permeates the Trump Administration from the top down is what ultimately killed the attempt to learn more about noncitizens living within the United States.  

Character matters.

Originally published on The Resurgent

Supreme Court Rules On Census And Gerrymandering

Two new rulings from the Supreme Court have addressed questions regarding the citizenship question on the 2020 census and partisan gerrymandering of congressional districts. In a defeat for the Trump Administration, the Court referred the citizenship question back to the lower court. The Court also distanced the judicial branch from questions of partisan rigging of congressional districts.

On the census question, Chief Justice John Roberts joined the Court’s four liberal justices in a decision that held that the Commerce Department’s justification for adding the citizenship question, that the government wanted to use the data to better enforce voting rights laws, was a pretext after evidence was found in the estate of deceased Republican strategist that suggested that the use of a citizenship question could provide whites and Republicans with an electoral advantage after the next redistricting.

A federal judge in New York ruled that Commerce Secretary Wilbur Ross had committed “smorgasbord of classic, clear-cut violations” of federal laws governing administrative agencies in including the question. The Court returned the case to the lower courts for additional consideration but ruled that Wilbur Ross could not be deposed.

The Court left the door open to further appeal by the Trump Administration noting that it was reasonable to use a citizenship question on the census rather than administrative records as the Census Bureau recommended even if the tactic resulted in a lower response rate from Hispanic households. The problem found by the Court was that Ross’s rationale was not supported by evidence.

“The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”

When “the evidence tells a story that does not match the explanation the Secretary gave for his decision,” Roberts continued, judicial review calls for “something better than the explanation offered for the action taken in this case.”

On the question of gerrymandering, drawing congressional districts for maximum partisan gain, the Court ruled in a 5-4 decision that, while the process is distasteful, gerrymandering is a problem for politicians rather than the courts.

In a decision also written by Chief Justice Roberts, the Court held that there was no constitutional requirement for proportional representation in congressional districts. Congressional districts do not have to reflect the proportion of a party’s statewide vote.

“Nothing in the Constitution provides standards to decide what is fair,” wrote Roberts.

Roberts suggested that there were other alternatives for addressing the gerrymandering problem. For example, either Congress or the states could mandate that redistricting be done by independent commissions rather than by partisan legislators.

Roberts was joined in the majority on this case by Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, and Brett Kavanaugh.

Originally published on The Resurgent

Abortion Clinics To Alabama: Drop Dead

Alabama had three abortion clinics prior to this week’s passage of a new law that essentially banned the practice. Now the state has… three abortion clinics. The law doesn’t go into effect for six months, but the Alabama abortionists say that even then they have no plans to close their doors.

“We've been through this fight over and over again,” Dalton Johnson, owner of Alabama's Women's Center in Huntsville told AL.com. “Our main goal is to keep the women apprised that we will be challenging it in court.”

At Johnson’s abortion clinic, two doctors perform about 2,000 abortions annually. Alabama’s Women’s Center is the only abortion clinic in the state that performs abortions up to the state’s previous limit of 20 weeks. As a result, the center sees women from across Alabama as well as surrounding states. After the law takes effect, performing abortions illegally will be a Class A felony punishable by between 10 and 99 years in prison.

“We don't see any interruption in any kind of service whatsoever,” agreed an employee of Reproductive Health Services in Montgomery.

The abortion providers are gambling that the courts will issue an injunction to prevent the law from taking effect on schedule. An employee at the West Alabama Women’s Center in Tuscaloosa said, “If the law goes into effect . . . we're not criminals; we would not be able to stay open, but until it's all resolved, we will be here.”

The ACLU has already announced plans to file a lawsuit to prevent the law from going into force. Rebecca Seung-Bickley told AL.com, “This will never go into effect, as long as ACLU is in litigation.”

Indeed, the purpose of the Alabama law seems to be to troll for legal challenges in order to send a test case to the Supreme Court. After the appointment of two new justices by President Trump, pro-life legislators believe that the time may be right to launch a challenge to Roe v. Wade.

Rep. Terri Collins, the Republican member of Alabama’s House of Representatives who sponsored the bill, told the Washington Post, “This bill is about challenging Roe v. Wade and protecting the lives of the unborn because an unborn baby is a person who deserves love and protection. I have prayed my way through this bill. This is the way we get where we want to get eventually.”

Incidentally, Collins, the author of the bill, is a woman.

Whether the Court reviews the Alabama abortion ban or not, it is likely that an abortion case will be reviewed over the next few years. Several states have recently enacted heartbeat bills that prohibit abortions after a fetal heartbeat has been detected. Other states are considering similar legislation. All are likely to be challenged by pro-abortion activist groups.

The best-case scenario for the pro-life movement would be for the Court to take at least one of the pending abortion cases and strike down Roe in its entirety. This would send the abortion battle back to the states. Some states, such as New York, would enact very liberal abortion policies while others, such as Alabama, would ban the practice.

A more likely outcome is that Chief Justice Roberts and Justice Kavanaugh take a more incremental approach. The narrow constitutionalist majority will likely agree that Roe was a bad decision but will be reluctant to toss it out abruptly after almost 50 years. We can expect the Court to allow states more latitude in restricting and regulating abortion but still stop short of allowing a full ban.

In either case, the abortion battle is far from over. In one case, statehouses will become the new battlefield while, in the other, the focus will continue to be on the Supreme Court. The new abortion laws are merely one more skirmish in a long war.

Originally published on The Resurgent

No Abortion Restriction Is Reasonable Enough For Pro-Choicers

Much of the debate on the new anti-abortion laws in Georgia and Alabama has centered on Alabama’s lack of an exception for rape and incest victims. While the Georgia law does contain such an exception, some pro-abortion advocates argue that it is not broad enough. After watching the abortion debate over the past 30 years or so, I can say without reservation that no matter what exceptions the authors of the bill had carved out, it would not be enough for the pro-abortion lobby.

Since I first became aware that abortion was legal, a mind-blowing revelation to an elementary school student, I’ve followed the debate and legal wrangling that has been involved with probing the limits of Roe v. Wade. In that time, I cannot recall a single example of any restriction on abortion, no matter how trivial or rational, that has not been opposed by the abortion special interest groups.

Among the first challenges to Roe were attempts to require that minors get the permission of their parents before having an abortion. Pro-choice groups, often led by Planned Parenthood, fought these common sense restrictions, but, beginning in 1979 with Bellotti v. Baird, the Supreme Court began to allow these laws that protected parental rights if they included an exception that allowed pregnant minors to get approval from a judge instead of their parents. This was affirmed in Planned Parenthood of Kansas City v. Ashcroft (1983) and Planned Parenthood of S.E. Pennsylvania v. Casey (1992).

The original Roe v. Wade ruling essentially prohibited restrictions on abortion in the first trimester and required that laws covering the second trimester be focused on the health of the mother, per Pew Research. Justice Harry Blackmun wrote in the decision that the state has an interest in protecting “potential life” in the third trimester and could ban abortions at that point as long as exceptions were made for the life and health of the mother. These guidelines were later overhauled by Planned Parenthood of Southeastern Pennsylvania v. Casey.

Despite the original decision that allowed some regulation of abortion, decades later pro-abortion activists were fighting restrictions on partial-birth abortion, a barbaric procedure in which the abortionist dilated “the woman's cervix, then pulling the fetus through it feet first until only the head remained inside. Using scissors or another sharp instrument, the head was then punctured, and the skull compressed, so it, too, could fit through the dilated cervix.” The abortion community fought attempts to ban partial birth abortion, technically called a “D&X,” dilation and extraction, despite the fact that there seems to be no medical necessity for the procedure, which NPR notes, was developed “to perform second-trimester abortions without an overnight hospital stay, because local hospitals did not permit most abortions after 18 weeks.”

As technology has improved, the pro-abortion community has resisted attempts to require that abortion clinics inform women about the choice for abortion. Several states require that mothers be presented with an ultrasound image of their baby before the make the choice for an abortion. Again, the advocates for women’s rights fought to keep women from seeing the scientific evidence that the child within them is a living human being.

The pro-choice community also fought to prevent health and sanitary standards for outpatient surgery centers from being applied to abortion clinics. In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court struck down a Texas law that required that abortionists have admitting privileges at a local hospital and that abortion clinics meet the same health and sanitary standards as an outpatient surgical center.

The Texas law was passed after a woman died in Kermit Gosnell’s Philadephia abortion clinic. Philadelphia’s NBC-10 reported that Karnamaya Mongar, 41, died after experiencing severe pain at the clinic. It took an hour for an ambulance to arrive to take Mongar to the hospital and firefighters had to cut bolts off the clinic’s emergency door to extricate her. Gosnell was convicted of manslaughter in the case in addition to three counts of murdering infants that were born alive. He was also accused of allowing extremely unsanitary conditions in the clinic and hiring unqualified workers who he then allowed to perform abortions unsupervised.

In about 30 years, I can’t recall a single instance where pro-abortion groups voluntarily submitted to even the most reasonable of abortion restrictions. Even the NRA has occasionally bowed to pressure for more gun controls as it did earlier this year when President Trump ordered bump stocks to be banned, but the abortion advocates seem to have never given an inch. We can reasonably conclude that if the new laws allowed unrestricted abortion access to victims of rape and incest that the pro-abortion crowd would find something else to complain about.

The truth is that the debate about rape and incest exceptions is a red herring. The Guttmacher Institute found that only one percent of abortions were due to rape and less than half a percent were due to incest. The vast majority of abortions are elective procedures that are performed as a method of birth control. It is these hundreds of thousands of abortions annually that the pro-abortion acitvists are fighting to protect.

Rape and incest victims will not be without options under the new laws. Heartbeat bills and even the Alabama law do not outlaw morning-after pills. There are also charities that provide transportation for mothers to areas where abortion is legal and clinics still operate. In Georgia, the law specifically provides an exception up to 20 weeks for women are willing to file a police report alleging rape or incest.

The fight over abortion and protecting the lives of pre-born humans is not over and won’t be for a long time, regardless of what courts decide about the current crop of laws. There is little doubt, however, that whatever laws are passed to limit the killing of babies, the pro-abortion groups will be there to oppose them, whatever they are. For pro-choice groups, it’s all about unrestricted access.

Originally published on The Resurgent

She’s Ba-ack! Ruth Bader Ginsburg Returns to Supreme Court

Supreme Court Justice Ruth Bader Ginsburg is slated to return to work tomorrow. Ginsburg has been absent from Court functions since early December when she underwent surgery to remove cancerous masses from one of her lungs.

Ginsburg, who was appointed by President Bill Clinton in 1993, broke three ribs in a fall last November. Her cancer was found as a result of tests after treatment for the broken ribs. She was previously treated for colon cancer in 1999 and pancreatic cancer in 2009. She also received a stent to improve blood flow in her right coronary artery in 2014.

Ginsburg has become the focus of much angst from both the left and the right. After the appointments of Neal Gorsuch and Brett Kavanaugh to the Court by President Trump, liberals rallied around Ginsburg in hopes that the 85-year-old justice would not be forced to resign before 2020. A 2018 movie even detailed Ginsburg’s early career as an attorney who worked against gender discrimination.

On the other side of the political spectrum, Ginsburg’s illness and subsequent absence have fueled speculation and conspiracy theories. When she did not make public appearances for several weeks, conspiracists on the right began to claim that Ginsburg was actually dead, but that her death was being kept secret to deny Donald Trump a third Supreme Court appointment.  

As Ginsburg returns to work, the Court has an easy week. The justices will hear only two 60-minute arguments. On Tuesday, the Court will hear Return Mail Inc. v. USPS, a case that asks whether government agencies can challenge private patents, and Mission Product Holdings Inc. v. Tempnology LLC, a trademark licensing case.

As a conservative and a constitutionalist, I often find myself at odds with Justice Ginsburg’s opinions on Supreme Court cases. Nevertheless, as a fellow human who abhors cancer, I wish her good health. While I would not be unhappy to see Justice Ginsburg retire, I cannot find it in myself to participate in the tinfoil hat crowd’s deathwatch.  

Originally pubished on The Resurgent

Republicans May Snatch a Supreme Court Defeat from the Jaws of Victory

Republicans may be about to snatch defeat from the jaws of victory when it comes to the Supreme Court. The decision to have the FBI investigate Brett Kavanaugh may well delay President Trump’s appointment to the Supreme Court so long that it won’t be possible to appoint a conservative to the seat.

As yet, there is little evidence that Christine Blasey Ford is correct in her identification of Brett Kavanaugh as the man who attacked her sometime in the early or mid-1980s, but that may no longer matter. Since last week’s Senate testimony, the goalposts have shifted from the question of whether Kavanaugh sexually assaulted Ford to whether he lied under oath.

A central thrust of the argument against Kavanaugh is now that he committed perjury by lying about his behavior as a young man at Georgetown Prep. Several former classmates have already come forward to say that the judge has not been honest about the extent of his drinking, his sexual activities and the meanings of slang terms written in his yearbook. If the FBI investigation uncovers evidence that Kavanaugh has been lying to Congress, then it might not only lend credence to Ford’s allegations, but it would also undermine Kavanaugh’s credibility in general. Having a wild adolescence is one thing, but lying about your past in current testimony is another.

The fact that the White House expanded the scope of the investigation also works against Republicans. The midterm elections are a month away and the investigation will last at least until the end of next week, assuming that it is not expanded further in terms of scope and time. Even if the FBI investigation comes up clean, Republicans will be forced to vote on an unpopular nominee shortly before a hotly contested election. That scenario could cost the GOP even more seats.

The other scenario is even worse. If the investigation uncovers more embarrassing facts about Kavanaugh’s past, Republicans could find themselves in a position where President Trump has to vet, appoint and confirm a new nominee in the short time before the new Congress is seated, which may well contain a Democrat majority in the Senate.

Lame duck Republicans may find themselves hard pressed to confirm a Supreme Court candidate. Moderates such as the usual suspects (Flake, Collins and Murkowski) could delay or vote no, especially if the election turns out to be a rebuke of President Trump and the GOP, and there would be absolutely no chance of having Democrats cross the aisle to confirm. If Democrats win control of the Senate, the Supreme Court may well soldier on with eight justices for the next two years.

Of course, President Trump had no choice but to authorize an investigation after Sen. Jeff Flake’s threat to oppose Kavanaugh. The slim GOP majority cannot afford any deserters and Flake may well have taken Collins and Murkowski with him.

The big question with no answer is whether Flake would have threatened to derail the nomination if he had not been party to a multi-year feud with President Trump. Flake has long been a critic of President Trump and the president returned the favor by working to undermine the senator’s reelection campaign, eventually forcing Flake into retirement. If Donald Trump had been nicer to Jeff Flake would Kavanaugh be celebrating his confirmation now? There is no way to know for sure.

In the end, Ford has an inconsistent story, Kavanaugh is contradicted by his classmates and Trump has a habit of hurling insults. There is a lesson here that everyone involved should take to heart: Words matter.

Originally published on The Resurgent