America • Americanism • Conservatives • Electoral College • Government Reform • political philosophy • Post • self-government • separation of powers • The Constitution • The Culture

The New Social Contract We Must Reject

America’s public life is disordered; our discourse toxic. Competing lists of scandals and abuses (calls for impeachment, “nuclear options,” attacks on free speech, and so on) are long and shop-worn—and often miss the real issue that something profound, systemic, and dangerous has happened to our nation. A hostile ideology now permeates the institutions that inculcate our children’s values, that shape or manufacture public opinion, and that supply the public with our only menu of political options from which to choose.

In effect, our ruling class has declared a new social contract, and they expect us to accept in silent acquiescence.

A social contract reveals itself in action, not ideas, and the true nature of the new, progressive contract emerges in countless examples of applied tyranny rather than its rhetoric of liberation. If we allow this new social contract to become our national norm, we will no longer be Americans in any meaningful sense. We will descend from a self-governing people into the subjects of social democratic elites who will dictate what kinds of political, economic, and social relationships we have with one another and with our new rulers.

American public life grew from a creative tension between two competing but ultimately compatible visions of who we are and what makes our common life meaningful. In effect, Americans have lived in and between two social contracts, which we have come to call “liberal” and “conservative.”

Our liberal social contract is largely individualistic; it stresses natural rights, political consent, and legal protections that extend from protecting contracts to guaranteeing equality of opportunity. Our conservative social contract, accepting much of liberalism, undergirds it by emphasizing the ties of community—of family, church, and local association—that make economic and political cooperation possible and help give life meaning. Freedom and stability, rights and duties, personal drive and the deeper ties and shared stories that bind us, these seeming contradictions have served as the poles of our common life, allowing us to forge a society of dynamic, ordered liberty.

Things have changed. Whether in the sweeping power grab of Representative Alexandria Ocasio-Cortez’s “Green New Deal,” the old-style socialism of Senator Bernie Sanders, or the dogged resistance of “mainstream” Democrats to any judicial nominee who recognizes the duty of judges to follow rather than make law, formerly fringe positions have coalesced into a new consensus on the left more radical than anything we have seen previously in our two-party system.

How did this happen?

Barack Obama’s vapid speechifying about America’s coming “fundamental transformation” sounded sophomoric to many of us but inspired others—activists, academics, journalists, and politicians—to believe their vanguard had finally captured all the important cultural and political high ground. The words were conceptually empty but nonetheless important as they signaled a coming out for this vanguard. Feeling free to use naked power to implement their new social and political model, progressives largely immobilized non-progressive elites whose foolish complicity in the building of the new paradigm left them without a script.

This paradigm owes much to the most radical of American Progressives from a century ago. It is laid out most fully, however, in a work of academic philosophy, the 1971 book A Theory of Justice by Harvard philosopher John Rawls.  At one level, Rawls merely restates old leftist prejudices, and his abstruse language hardly conceals the radicalism of a “social contract” demanding that we reject our lived culture, our inherited principles, and the defining traits of our American character in favor of a radical, inhumane, and fundamentally unjust “theory of justice.”  

On another level, Rawls offers the purest form of political abstraction that supported a method of analysis perfectly attuned to the desires of a new generation of radicals for moral certitude and for those who cannot tolerate dissent or pluralism.  In this way, Rawls crafted a very useful and seductive theory for people who want action. Rawls’ contract begins with the question: what type of society would an individual choose from behind a “veil of ignorance” completely masking every aspect of a distinctive self:  gender, class, talents, physical limitations, religious and moral beliefs? Rawls’ answer is a “fair” society, in which the only permissible inequalities would be those that produce disproportionate benefits to the most disadvantaged. The cold abstraction of Rawls’ system produces moral heat against all forms of difference and inequality, and against anyone who fails to parrot the claim that its principles are self-evident. And so, dissent from the new orthodoxy is portrayed as a sign of racist rage and a selfish thirst for power, political majorities are dismissed as brainwashed rubes or mere fictions, and open opposition to the new order is deemed treason. Rawls’ theory effectively closes the mind of disciples in order to prepare them for the long march to power.

If we have learned anything over the last two and a half centuries it is that nothing is so dangerous to real, particular, breathing humans as moralism devoted to abstract visions of the good. Unfortunately, we seem perpetually destined to unlearn such lessons. “Free” college, medical care, and guaranteed incomes, courts determined to legislate against the expressed will of the people, and the poisonous demands of today’s identity politics all share a hostility to the norms of personal responsibility and traditions of due process deeply embedded in our liberal/conservative consensus. They demand rejection of tradition and opportunity in favor of using government and radical pressure groups to redistribute wealth and power according to political standards.

Political conflict is nothing new in America. Nor is all political conflict the product of disagreements over our social contract. For example, much of the tragedy of race relations historically has stemmed from primitive emotions and bad, race-based pseudo-science. But at the core of today’s toxic politics is a battle for America’s soul. We must choose: Are we, as a people, dependents of a central government and those who perpetually run that government, looking for administrators to protect us from all the tragedies of life—including sickness, poverty, feelings of inferiority, and speech we find hurtful? Or are we a free people, possessed of a common story as well as our own stories in our own communities, capable of governing ourselves provided each of us is given fair treatment and room to move in the public square?

The Rawlsian contract demands that every form of inequality—political, economic, and social—pass muster according to rigorous, unrealistic criteria. In effect, every aspect of our lives is to be judged by the most “woke” among us, who will then use the power of the state to enforce their judgement. Promising liberation, the Rawlsian social contract would reduce each and every one of us to a featureless cog in a great machine of constant social reconstruction. This most political of social contracts is the real foundation for the politics of envy and resentment promoted by Occasio-Cortez, Sanders, and their enablers.

At its heart, the Progressive social contract is a rejection of society itself in favor of a pervasive, inescapable politics, guided by a permanent ruling class insulated from the people by tenure, lifetime appointments, civil service rules, and a corrupt political system. Real political consent comes, not from behind a veil of ignorance, nor from the kind of mass, national elections called for by those who would destroy our Electoral College. It comes from people within their own states and local communities. National politics and promises must take a back seat to local concerns and loyalties if we are to regain self-government. For this to happen we first must call out those who would shame normal Americans into submission. It is time to call a radical a radical and a socialist a socialist. Most important, it is time to remind ourselves that, whether conservative or liberal, a majority of Americans still believe in self-government and ordered liberty; this is what has bound us together, and what must continue to bind us together if we are to remain a free people.

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2016 Election • Administrative State • Center for American Greatness • Deep State • Democrats • Donald Trump • GOPe • Government Reform • Political Parties • Post • Republicans • self-government • separation of powers • the Presidency • Trump White House

Is Trump’s Cabinet Undermining His Agenda?

Bob Woodward’s new book, Fear: Trump in the White House, has exposed something constitutional scholars might, at best, call outright insubordination. At worst, it amounts to an incidental coup by several former and current Trump Administration advisers. Then again, Woodward’s book may just be another unsubstantiated torrent directed against a president who offends the touchy sensibilities of America’s hallowed globalist elite. In any event, it speaks to the dire need for fundamental institutional reform (a need that, as yet, Trump has failed to address.)

Gary Cohn’s Oval Office Caper
According to Woodward, former White House aide Rob Porter and former White House economic adviser Gary Cohn physically removed documents meant for the president’s review from the resolute desk in the Oval Office. The documents, Woodward reports, concerned a proposal to end a trade deal between the United States and South Korea.

If true, this would indicate that both Cohn and Porter ignored well-established White House protocols for presidential decision making. It would also mean that the duo decided to rewrite the president’s stated (and desired) directives against the president’s wishes.

Think about it: President Trump campaigned on a consistent policy of reforming what he (rightly) viewed as America’s lackluster trade policies. He sold himself to the American people as a critic of  “free trade,” and vowed to renegotiate the bad deals his predecessors had created. If Woodward’s account is correct, then, both Cohn and Porter circumvented presidential power, and did what only a president has the authority to do: change American trade policy to conform with their own views.

Cruise Missile Confusion
Another instance of potential insubordination—at least as reported by Woodward—occurred during a tense early 2017 exchange between Defense Secretary James Mattis and the president. In 2017, when the Syrian strongman Bashar al-Assad purportedly used chemical weapons against his own civilian population, Trump was so irate that he wanted to “f—ing kill” Assad. He called Mattis and demanded that decisive military action be taken against the Syrian autocrat. Yet, according to the Woodward report, Mattis not only pushed back but refused to follow through on what was a verbal presidential order authorizing the lethal use of force.

Some have argued that Trump’s words did not constitute an order as there is some confusion about that point among constitutional scholars. Basically, if the president calls his war chief at the Pentagon and orders him to take Assad out, then that technically constitutes a direct and inviolate order. Remember, the United States Constitution and other relevant legislation gives the president immense power to use military force. This is why clear lines of communication and explicit delineation of authority is essential between the president and his cabinet officials. The Constitution, not the bureaucracy, provides such clarity.

If such a declarative statement from the president—whether verbal or written—constitutes as an order, then any failure to execute that order would have been an act of insubordination, and Mattis would be eligible for removal from office. Ultimately, the United States did strike Syria with cruise missiles. But in no way was that operation intended to “f—ing kill” Assad, as the president allegedly wanted.

Mattis and his fellow general, White House Chief of Staff John Kelly, have completely denied all of Woodward’s claims. But Woodward insists he has “hundreds of hours” of interviews backing up his reporting.

What’s more, it’s not as though what Woodward is writing is new. The rumored divisions and acrimony within the Trump Administration (particularly in its first year) were the stuff of Potomac legend. Mattis and Kelly are stand-up men who have served this country with distinction. I take them at their word when they say they never uttered the words Woodward attributes to them. Even so, doubts of this kind still linger because they and their associates have consistently demonstrated a measurable degree of skepticism about Trump, and in this they are not alone within the government.

Deep State’s Gonna State
Trump has a real problem (and, so do we as a democratic citizenry) if Woodward is correct. Not only is Trump beset with unforgiving enemies in the permanent bureaucracy and in the Democratic Party, he is also matched against a hostile corporate media and propagandists-masquerading-as-experts in academia. If the Woodward book is even partly true, Trump is warring with elements of his own administration.

We’ve already seen this at play with Trump’s ongoing public spat with Attorney General Jeff Sessions. There were also evident tensions between Trump and his former national security adviser, H. R. McMaster. These new (unsubstantiated) reports of the Cohn-Porter Oval Office caper and Mattis’s possible refusal to execute a lawful presidential command suggest the problems facing constitutional governance in the United States today are pervasive.

What’s more, the New York Times took the extraordinary step of publishing an anonymous op-ed by a supposed senior Trump Administration official who announced emphatically and proudly that he (and many others at the top-levels of the administration) were actively working to “do what [they] can while preserving [America’s] democratic institutions.”

According to the anonymous op-ed, this has created a “two-track presidency,” one in which Trump issues decrees and edicts, but another where the anointed “betters” (read Swamp Dwellers) in the White House essentially ignore the presidential orders. The writer claims that this isn’t the work of the “deep state,” but rather that of a “steady state” working to insulate our hallowed institutions from the excesses of Trump.

I wonder how, if such an event occurred under former President Obama’s watch, the Left would have reacted to such “anonymous” sniping in the press from active senior members of the administration?

What the recent spate of exposés about the Trump Administration tell us is that America’s democratic institutions are under assault. Yet, they are not under assault from either Russian troll farms or Donald Trump’s incessant need to tweet. Instead, they are besieged by those who’ve cynically claimed for themselves the mantle of being defenders of our glorious republic (through entirely undemocratic means). Therefore, Trump must reform the bureaucracy at every level. It’s the deep state or us. Woodward’s book just reinforces this fact.

Trump is like Caesar: he is surrounded by enemies and something ominous is underway. This issue transcends Trump’s presidency, however. It affects the whole country. Are we a representative republic of the people? Or, are we an oligarchy? I fear the answer.

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Administrative State • America • Congress • Conservatives • Post • Progressivism • separation of powers • The Constitution • The Courts • The Resistance (Snicker)

Are Dems Right to Panic Over the Court? Five Originalists Weigh In

My intuition is that the Democrats are not panicking enough about the pending confirmation of Judge Brett Kavanaugh to the United States Supreme Court. They’ve been so busy ginning up their base with claims that Kavanaugh will spell the end of abortion and gay marriage that they haven’t focused on the more likely, and larger, impacts of an originalist court. Trump’s court will change America.

Kavanaugh is most robust in defending the Constitution on foundational questions, not the headline grabbers. This is good news.

An originalist court will bring needed changes to everyday life, liberty and the pursuit of happiness. We’ve already seen several dramatic victories when Justice Neil Gorsuch joined the court last term. This was a foretaste of far-reaching changes to come. Reinstating constitutional safeguards against government power will be significant for religious freedom, free speech, curtailing racial preferences, unleashing free enterprise, and stopping unaccountable government.

In Justice Anthony Kennedy’s last term, when he sided with the conservative justices, we saw that a faithful reading of the Constitution can be revolutionary. In Janus v. AFSCME, government workers were freed from compulsory union fees. Unions spent almost $2 billion on lobbying and campaign contributions in 2016, raised with those compulsory fees. Janus may cut the cycle of Democrat politicians voting for ruinous salaries and pensions, which bankrupt local and state government, as the cost of union support. And it set an important legal precedent for undoing poor court decisions from the past.

The Masterpiece Cakeshop ruling in favor of a Christian baker targeted by gay rights activists, trying to force him to bake a gay wedding cake, was an important victory for free exercise of religion. Even liberal Justice Kagan, who was furious at what she called “weaponizing the First Amendment” in the Janus case, joined the consensus defending the First Amendment in the Masterpiece case which was decided on a 7-2 majority.

Breaking the Grip of Stare Decisis and Chevron Deference
Is my intuition right about the game-changing power of honoring our Constitution? To answer this question, I sought out five of the best originalist legal minds in the country. In one interview after another, these judges and Supreme Court lawyers agreed about the importance of President Trump selecting originalist justices. The two legal mainstays that allow the Deep State to continue its power grab unchecked are about to be slowly but methodically dismantled.

These much-misused legal doctrines are stare decisis and Chevron deference. In the 20th century, stare decisis and the Chevron deference enabled the explosive expansion of the executive bureaucracy and of government power over all areas of life and the economy. These technical terms will never become household words, but changing them will affect every household in America.

Stare decisis means not overturning precedent, even if the precedent was wrongly decided and unconstitutional. It is often quoted by liberals to argue that Roe v. Wade is sacrosanct.

Chevron deference is a doctrine that says the courts should defer to the executive branch agencies, allowing them to write regulations and policy that carry the force of law, with only limited judicial review. It delegates interpreting laws to bureaucrats, which deprive citizens of recourse to court review. This gives a green light to executive overreach. For example, the Obama administration did not have to bother trying to pass a transgender bathroom law. A government bureaucrat merely reinterpreted Title IX of the Civil Rights Act to define unisex bathrooms as discriminatory based on newly invented gender rights.

It has been almost a century since progressives on the Supreme Court radically transformed America’s legal traditions.  We will not see abrupt and rapid change, as when progressives legislated from the bench in Roe v Wade or dictating gay marriage.  The Trump court will be the beginning of a new era of slower, case by case progress back to constitutional limits on government power.

Jim Burling, Pacific Legal Foundation
First, I talked with Jim Burling, vice president of litigation at the Pacific Legal Foundation, which has 10 wins and only two losses before the Supreme Court. PLF has been a powerhouse for decades defending property rights, notably against eminent domain and the EPA. Then some interesting things happened. One was in the realm of national politics, and the other was an intellectually electrifying book that created a seminal change in their thinking about defending liberty.

The political change began with President Obama’s big government agenda, and the voters’ repudiation of him two years later, resulting in his loss of Congress. Unwilling to let his power be curbed by our constitutional separation of powers, Obama embarked on an imperial presidency. He put the administrative state on overdrive. He ruled through executive orders and unaccountable bureaucratic regulations, often brazenly illegal, such as funneling half a billion dollars of bank fines to private radical organizations, often flouting constitutional limits, for example, turning the Clean Air Act into a war on coal.

PLF realized that their defense of property rights faced insurmountable odds against the extra-legal deep state. A 2014 book by Philip Hamburger, Is the Administrative State Unlawful? (a shorter version, The Administrative Threat is a good introduction) galvanized them to shift their approach to directly attack deep state prerogatives unlawfully delegated by the courts through Chevron deference.

Hamburger’s historical deep dive into 17th-century England, the original showdown between Parliament and the absolutist powers of the King, showed how those hard-won constitutional principles applied to the present-day battle with the bureaucratic state. The lawyers at PLF realized they had a blueprint in their hands they could use to roll back the deep state’s self-anointed kingly powers. Civil servants have no right to define law, judge compliance, or apply penalties. Bureaucrats in America now exercise the constitutionally delegated powers that belong to the legislature and the courts; powers that the kings of England were forced to relinquish centuries ago.

Jim Burling believes we are at one of those seminal moments in intellectual history, when clear thinking unleashes profound forces for change. PLF went through the Hamburger book chapter by chapter, translating the historical battles into current constitutional freedom battles that could be won. Their new goal is to claw back the deformation of progressive rulings and restore limits on bureaucratic power.

In Justice Gorsuch’s first court session, PLF won two cases, one on free speech and one safeguarding the right to sue the EPA in federal court, a right trampled by the EPA’s infamous Obama era “waters of the United States” rule, by which the federal government seized jurisdiction over every piece of private property in America that has a spring puddle or an irrigation ditch, and gave homeowners only 120 days to seek redress in court.

The night before President Trump’s election, Burling couldn’t sleep. He was thinking about the coming liberal court under Hillary Clinton’s administration. The Pacific Legal Foundation would have to stop looking to the Supreme Court.  As the returns on election night came in, Burling thought, “We’re not going to lose the court after all.”

Burling believes President Trump has done a spectacular job with his court appointments. He foresees more victories against the Chevron doctrine, the legal power tool of the deep state.

His long-term dream is to return the Commerce Clause to regulating only true interstate commerce, not all economic activity in the country. As a young law student, he was taught that because of precedent economic freedom was gone forever. Now rolling back government intrusion that stifles free enterprise seems like a viable goal.

Burling expects Judge Kavanaugh to be faithful to the actual language of statutes and the Constitution. Republican nominees in the past were often chosen based on political favors owed, such as John Sununu’s successful lobbying for Justice David Souter simply because he was from New Hampshire, despite his liberal record. President Trump was serious about seeking out the best originalist judges in the country. There is not a bad choice among them.

Will the new court be a gamechanger? There is reason for hope, according to Burling, that the court will be more robust in overturning bad court precedents, but he foresees only incremental change, given Chief Justice Robert’s predilection for narrow rulings. Bigger changes will await another Trump nominee.

Jeremy Tedesco, Alliance Defending Freedom
The day after Kavanaugh’s nomination to the Supreme Court, I spoke with Alliance Defending Freedom (ADF) senior counsel Jeremy Tedesco, who successfully argued the Masterpiece Cakeshop case during Justice Kennedy’s final term on the court. ADF lost the case in every court all the way up to the Supreme Court, where the group won a landmark victory, 7-2.

ADF is the country’s premier law firm defending the sanctity of life and religious liberty. They have taken nine cases to the Supreme Court in the last seven years and won every single time. ADF can be proud of their Masterpiece win, which was based on the free exercise of religion.

Tedesco is looking forward to having, not a conservative majority, but an originalist one. To truly protect the First Amendment, we need justices who interpret according to the text and original intent of the constitution. With Justice Kavanaugh replacing Justice Kennedy, that dream has a chance of becoming reality.

I asked Tedesco to describe his “dream case” to bring before a Supreme Court with Gorsuch and Kavanaugh on board. His answer focused on the First Amendment. “In Masterpiece, the court did not reach the ultimate free speech question: whether the state can compel creative professionals to create custom artistic expression that violates their beliefs. In Masterpiece, the court reserved that question for future cases.”

ADF has several open cases working their way through lower courts, putting “stepping stones in place,” that Tedesco hopes will lead to another major free speech victory at the Supreme Court.

Kavanaugh’s record on freedom of speech and religion, as analyzed by ADF’s CEO, Michael Farris, is encouraging.  Kavanaugh dissented in an Obamacare case that ruled pro-life organizations must give free contraception and abortifacients to their employees. Judge Kavanaugh argued that the religious believer, not a government regulator, has the right to decide the ethics of their own behavior.

When “the Government requires someone (under threat of incurring monetary sanctions or punishment, or of having a benefit denied) to act or to refrain from acting in violation of his or her sincere religious beliefs,” Kavanaugh wrote, “that constitutes a substantial burden on the exercise of religion. . . . That is precisely what happened here.”

In another case, an atheist claimed that the prayers during the presidential inauguration violated the Establishment Clause of the First Amendment. The D.C. Circuit Court of Appeals refused to take the case, ruling the plaintiff could not show a concrete injury. Kavanaugh dissented. He would have heard the case and ruled against the plaintiff, because of longstanding precedent and widespread use of “so help me God” in official oaths.

Kavanaugh is a strong judicial advocate against bureaucratic overreach. He ruled in an FCC case that the court should not defer to the executive branch legislating through regulations. He wrote, “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

Breaking free of the Chevron Doctrine forces responsibility on Congress, which is accountable to voters. It opens up many opportunities to ADF’s defense of the American freedom.

Judge Clint Bolick, Arizona Supreme Court
My next interview was with Clint Bolick, a justice on the Arizona Supreme Court. Judge Bolick worked previously at the Phoenix-based Goldwater Institute, where he was vice president of litigation. He’s a Supreme Court lawyer and a protegee and friend of Justice Clarence Thomas, dating back to their work together at the Equal Employment Opportunity Commission in the 1980s. Bolick also co-founded the Institute for Justice, which litigates for mom and pop businesses fighting government regulations, school choice, property rights, and free speech. He is one of the country’s giants in defense of individual liberty and the right to engage in free enterprise. Bolick is an unapologetic activist in defense of the constitution.

Judge Bolick thinks the enthusiasm about the Kavanaugh appointment on the right and the hysteria on the left are both overstated. Justice Kennedy often sided with the originalist judges. An originalist majority has been whittling away at the Commerce Clause for years, returning power to the states. That trend will not change with Kavanaugh, but it will accelerate.

The biggest change Bolick foresees is on the Chevron doctrine’s deference of the court to the administrative state.  Justice Gorsuch is famous for a sweeping opinion in which he attacked Chevron directly. (Kavanaugh is widely regarded as strong in this area as well.)

Judge Bolick sees the recent Janus ruling as a roadmap for how to revisit stare decisis, with potential application to Roe v Wade and gay marriage. Janus overturned a previous Supreme Court decision in order to rule against mandatory union fees, because the fees were spent on political campaigns, and were thus coerced political speech. The court considered the reliance of the public on settled law, including the practical ramifications of overturning it, and came out in favor of overturning precedent in order to restore First Amendment rights.

I asked Judge Bolick what part of constitutional jurisprudence he would like to see revisited by the new court. His answer was quick: return economic freedom to an equal footing with our other constitutional rights. Overrule the Jim Crow-era Slaughterhouse Cases. The 14th Amendment, passed to protect freed slaves after the Civil War, had three provisions. Two are famous—equal protection and due process. The first one, just as important, was gutted by the Supreme Court’s 1873 Slaughterhouse decision and has passed away from our collective memory. It is the “privileges and immunities of citizens.”

Privileges and immunities of citizens go back in history—they were guaranteed to Christopher Columbus and the Pilgrims. They were of utmost importance to our nation’s founders and include the right to pursue a livelihood, own property, make contracts, and bear arms.

Justice Thomas is the leading proponent of bringing back constitutional protection for these economic rights. Economic freedom would do more to help black Americans than “affirmative action” and race-based preferences ever could. Onerous licensing requirements, such as requiring 2,000 hours of training to be licensed to braid hair for a living, blocks ordinary people from starting up the ladder to prosperity.

State governments take the freedom out of free enterprise, lessening people’s lives and harming the economy. The Institute for Justice is currently defending the rights of an outstanding black couple—he is a former Army Ranger and corporate project manager, she has an MBA and a successful business—who want to offer job skills classes. Under Virginia law, they must apply to state bureaucrats, pay thousands of dollars, rent classroom space and create a library, do mountains of paperwork, all just to request a license that could be refused. The case is being argued on free speech grounds, but from what Judge Bolick explained, the 14th Amendment’s privileges and immunities of citizens should give this couple direct protection of their economic enterprise.

Returning to an original, textual understanding of economic freedom is a lifetime dream for Bolick. He believes an originalist court might take it on.

Robert Alt, The Buckeye Institute
Next, I had the privilege of talking with Robert Alt, a highly respected originalist legal expert, mountain climber, Iraq War correspondent, and hard-working president of the Buckeye Institute, a think tank that focuses on economic freedom. Buckeye last term filed an amicus brief in the Janus lawsuit. Alt was upbeat after the 5-4 victory in that case, which freed government employees from having to pay a fee to a union against their will.

“The liberty of the individual was upheld,” Alt told me. Janus was all about consent. It offers a model of how to reconcile a previous wrong decision with stare decisis, the judicial norm of respecting settled law. Stare decisis should distinguish between errors of interpreting a law passed by Congress (which the other branches can correct more easily) and errors in interpreting the Constitution itself (which are nearly impossible for the other branches to correct). The tradition that legal stability requires the court mechanically to maintain constitutional errors is wrong. When a Supreme Court error deprives the individual of constitutional rights, in this case of freedom of speech and association, it should be corrected by the court.

Janus was a vital win for originalists. It overturned a 41-year-old precedent, affirming the responsibility of the Supreme Court to undo poor decisions of past progressive court rulings. It applied the First Amendment to prevent compulsory speech, in this case, being compelled financially to support a union’s political lobbying.

Politically, Janus is of paramount significance. Rush Limbaugh calls collusion with public unions a Democrat money laundering scheme. Unions spent $1.7 billion on politics in 2016, mostly for Democrats. Democrat politicians bankrupt cities and states to pay for unrealistic salaries and benefits demanded by government unions. In exchange, government unions skim off some of that taxpayer largess through compulsory fees and funnel it back into Democrat party election coffers. It is not just worker’s hard-earned money, but all our hard-earned tax money being collected by unions and passed along to the Democratic Party.

We are talking about big bucks, election-changing bucks. According to Alt, some rural teachers in Ohio pay up to $1,200 in union dues. There are 5 million union members in compulsory union states, and if 20 percent opt out, unions stand to lose a significant amount of their political war chest.

The leftist Nation magazine analyzed the impact of Wisconsin and Michigan becoming “right to work” states. Both states went for Trump, the first time they went Republican since the 1980s. The loss of union money, used for getting out the Democrat vote, resulted in a 3.5 percent swing in favor of Republicans, enough to change the outcome of the election. To say that Democrats are concerned would be an understatement.

During oral arguments, Justice Kennedy asked, wouldn’t the unions lose power if you lose this case? When the union lawyers answered yes, their goose was cooked. Kennedy saw this as the crux of the case: unions’ collective bargaining speech was inherently political; hence workers were being compelled to take part in political speech.

Addressing the wider question of how a more originalist court with a second Trump Justice will change America, Robert Alt foresees a rollback of the administrative state. We have had a dereliction of duty both by Congress and the Courts, both happy to pass power to unaccountable bureaucrats in the executive branch. A stronger originalist court will be willing to limit Chevron deference, which allows unelected administrators to rule through regulation.

The pace and reach of bureaucrats issuing regulations are out of control. Robert Alt oversaw a project to catalog all federal criminal laws and count them for the first time. There are 4,500 federal criminal laws spread throughout the law code.

How many criminal federal regulations are there? No one knows for sure. The best guess comes from the work of Professor John Coffee at Columbia Law School. He estimates there are 300,000 federal regulations that carry criminal penalties that were never approved by Congress.

President Trump could be the pioneer who forces Congress and the Supreme Court to do their jobs and take power back from the administrative state. So far, the liberal judges are not budging. They apply Chevron deference to maintain outcomes they like, but not to respect Trump’s lawful immigration policy.

Alt’s dream for an originalist court? Like Clint Bolick, he would revisit Slaughterhouse. That series of Jim Crow-era decisions crushed newly freed slaves’ economic liberty and stripped all Americans of protection against state laws that infringe on the “privileges and immunities of citizens.” The loss of these fundamental rights became settled law and is not even taught to young lawyers. The result is that economic rights are not protected from government intrusion like other safeguards in the Bill of Rights. The heavy hand of government and crony capitalism was unleashed on free enterprise: licensing laws run amok, big business welcoming burdensome regulations that they can afford to comply with, but which crush new competitors. And we mustn’t forget that privileges and immunities also guarantee the right to bear arms across the states.

Alt does not see the Supreme Court suddenly becoming a strongly originalist institution, striking down laws to protect individual rights. Chief Justice Roberts is a “minimalist” who believes on principle that the High Court should have a modest role. The irony, as we saw in his Obamacare ruling, is that Justice Roberts exerted huge judicial power in the name of limiting judicial power. He created his own remedy to save Obamacare and avoid ruling it unconstitutional.

Pete Hutchison, Landmark Legal Foundation
My last conversation was with Pete Hutchison, who succeeded radio talk show host Mark Levin as president of the Landmark Legal Foundation. Landmark’s mission is to fight the administrative state’s abuse of power. Naturally, Hutchison is pleased with Trump’s focus on originalist judges. An originalist Supreme Court justice strives to apply the law dispassionately, with no political agenda. There isn’t a single liberal judge who would go against the Democratic agenda, Hutchison told me, because ignoring outcomes and focusing on rule of law doesn’t fit their judicial approach.

Hutchison minced no words on Judge Kavanaugh. “He is brilliant and extremely well qualified,” he said. “But I think the Left should be celebrating. He will set the meat slicer on its thinnest setting in cases like that dealing with Obamacare.”

Landmark filed one of only two amicus briefs in the 2012 Obamacare case that addressed the question of whether the tax penalty could be considered a constitutional tax. “We went through the Constitution’s requirements and concluded that the penalty was not a constitutional tax,” Hutchison explained. “Kavanaugh embraced the tax notion . . . It was a thinner slice than Roberts in a way, as he would have held the case another two or three years.”

But Hutchison thinks Kavanaugh “will be great on Chevron deference, which is critical, and on the vast majority of other matters.”

He adds that Trump’s next pick, if it comes from the president’s famous list of candidates, is “very likely to be the big one if the Republicans can hold the Senate” in the fall. “I can only imagine the collective freak-out should Judge [Amy] Barrett get the next nod!”

Hutchison is optimistic that with Gorsuch and Kavanaugh, the new Supreme Court will block the Left from using “disparate impact” as a legal theory to advance federally mandated racial quotas in employment, housing, education, and indeed, every area of life where you can count people by race. Disparate impact is dangerous and undoing it perhaps could be the most important benefit of the Trump presidency from a liberty standpoint.

Like the other originalist lawyers and judges with whom I spoke, Hutchison sees the Chevron deference of the courts to executive branch bureaucrats as teetering, possibly to fall before a more originalist court. Congress purposely delegates authority to agencies by writing vague statutory schemes to avoid voter scrutiny, even though delegating legislative power to unelected officials is flatly unconstitutional. It affects every area of the law where regulations are written, absolving politicians from responsibility for anything.

An originalist court would push back and ask legislators: What authority did you delegate? What are the limits of that authority? Is this a constitutionally legitimate delegation of power? An important example is the Obama-era “Waters of the United States” rule, which the Trump Administration has sought to reverse. A lawsuit challenging this is currently working its way through the lower courts.

Hutchison thinks Justice Kagan is right to worry about that the First Amendment could serve as a sword against progressivism. The First Amendment would take on more power as a constitutional right under an originalist court. Freedom of speech, religion, and assembly would be used as legal protection against the progressive activist judges imposing a social justice agenda. We saw that happening in several important originalist victories in the court’s last term, affecting government union dues, gay marriage, and pro-life pregnancy centers. The Masterpiece decision raised the bar to a higher standard, called “strict scrutiny,” to justify the government limiting a constitutional right such as free speech or freedom of religion.

An originalist court is also likely to revisit the federal balance of power. Hutchison points to an interesting Commerce Clause case still in the lower courts, that challenges California’s animal rights mandate for chickens. California voters dictate food or fuel standards to providers from other states, without their citizens having any say so—that’s not how the federal system and representational government were meant to work. Farmers in Ohio and Iowa will be forced to heat their barns and get rid of half their chickens. Consumers across the country would pay a premium for eggs. A court that follows the meaning of the 10th Amendment reserving power to the states will give such cases a fairer hearing than in the past.

Change Is on the Way
I came away from these conversations with a new appreciation that change won’t come quickly through a more originalist court, but it will come. We’ll be heading in the right direction—the direction of limited, constitutional government, as the framers intended. The court will throw controversial questions back to the Congress and the states to decide, in protracted and impassioned political battles, where they belong. Unlike progressives ruling from the bench by fiat, we will have to work through all three branches of government—as it should be.

The court alone will not dismantle the administrative state or force government to retreat from our lives, but it is an indispensable player. Justices Gorsuch and Kavanaugh give us reason to expect more justice and less unchecked expansion of government power.

Democrats do not understand the Constitution or the love and fidelity it inspires among ordinary Trump voters. They don’t understand how many Americans want the court to fight for our constitutional safeguards against government power.  Our precious American individualism, freedom, and prosperity depend upon it, in the digital age more than ever. Progressive Supreme Court justices are all about advancing the political agenda du jour and care nothing about constitutional principles. They think originalists are the same. We’re not. We revere the limits as much as the rights handed down to us as a sacred and incomparable legacy.

It is definitely time for Democrats to panic.

Photo credit: Melina Mara/The Washington Post

Administrative State • Center for American Greatness • Conservatives • Donald Trump • Law and Order • political philosophy • Post • Republicans • self-government • separation of powers • The Constitution

Polarization Over Kavanaugh Is a Good Thing

The heated polarization over Judge Kavanaugh’s nomination to the Supreme Court is a sign that the country is ripe for a serious reckoning with what makes a judicial nominee—particularly one to the U.S. Supreme Court—“qualified.” It shows that America is once more willing to take on the burden of doing politics with respect to the judicial branch. And since the court’s power is extremely broad in scope, it’s both necessary and good that the nation is soberly deliberating about this vital question through its elected representatives.

Benjamin Wittes, a senior fellow at the Brookings Institution and the editor-in-chief of the legal blog Lawfare, is of a different opinion, however. He is worried about the state of America’s judicial confirmation process. In the pages of The Atlantic, Wittes laments that we are in the death throes of the “Confirmation Wars” that rage about us. Judge Kavanaugh, he writes,

will be confirmed because there are 51 Republican senators in office and a Republican vice president who can break a tie if need be. While he may get a few Democratic votes, he will get confirmed—indeed, he will get a vote at all—because Republicans right now have the raw political power to confirm him on their own. That political constellation of power exists because people expect him to vote in certain ways on certain types of cases, to deliver certain specific outcomes on issues they care about. Democrats will oppose him for the same reasons.

While this constitutes a deviation from past practice, it’s difficult to see precisely what’s either technically or substantively wrong with the situation that Wittes and those who agree with him decry.

Technically, at the political-constitutional level, the Senate is well within its power to withhold its “advice and consent” and so reject any president’s (judicial) nominee for any reason—or no reason at all. As we’ve seen, the Senate can refuse even to give a nominee a hearing. While that has incensed some, the reality is, in appointment matters, the Senate has the final say, and nobody who’s being honest doubts that.

As a substantive matter, Wittes’ view—namely, that nominees should be on the auto-confirmation track if they’re well-credentialed and have the right “temperament”—is only coherent if one believes that a nominee’s having the right judicial philosophy is a nice “value add” but isn’t strictly necessary to be a qualified judge.

But that’s wrong. Judicial philosophy—how one views the Constitution and conceives of one’s role as a judge, particularly how one understands the limits of one’s own authority—is by far the most important component of being a good judge. And the post-Bork Senate is finally showing that it understands this.

Whether each party consciously understands why it supports the judicial philosophy that it does—“originalism” for the Republicans, “living constitutionalism” for the Democrats—is wholly beside the point. What does matter, however, is that it has happened. And it has forced us to confront an uncomfortable reality: For Republican and Democratic senators alike, only a certain type of nominee is confirmable (i.e., the kind that has the judicial philosophy to which these senators are partial, regardless of why they are partial to it).

This is as it should be, the lamentations of “proceduralists” like Wittes notwithstanding. What matters more than anything else with respect to the judiciary is that the judges who get confirmed won’t one day reveal themselves to be robed tyrants. The country had enough of that from the Warren court. The old confirmation process was possessed of a certain decorum, yes, but it was at the same time not well-suited to detect and then smoke out nominees who would go on to rule by judicial fiat. Plus, it was only able to be so genial because only one judicial methodology, what we today call “originalism,” was understood to be legitimate, and most judges operated within that framework.

Until the 20th century, that a judge would be a natural-law originalist went without saying. But, beginning in late-19th and early-20th century America (and even earlier in a non-American context), Oliver Wendell Holmes, Jr. precipitated a legal revolt, with the aim of reconstituting the judiciary into one that would rule with an eye toward reifying the best social consequences. The Holmesian judiciary would base its decisions on economic, social science, and statistical reasoning at the expense of the actual text of any given law. He and his disciples pushed “living constitutionalism” into the mainstream, where it had no right to be and where, regrettably, it remains to this day. “Originalism” only became a self-conscious legal theory in the 1980s as a counter-reaction to Holmes’ legal rebellion, but it has always existed.

It simply won’t do to lament the “politicized” process we have today, as Wittes and others do; that critique means nothing. In the United States, judges always have been subject to political-electoral rule and control. On the front end, they need to run the presidential-nomination-and-Senate-confirmation gauntlet, and on the back end, they can be impeached. (Judges need to be impeached much more frequently, as it happens.)

Here’s Wittes again: “Our debate about judges takes place in the language of principle. We pretend to debate judicial philosophies, when we all know there was no philosophical objection to confirming Merrick Garland” (emphasis added).

Wittes goes too far, however. Senate Majority Leader Mitch McConnell’s (R-Ky.) stated reason for blocking Judge Garland had to do with the timing of an election, to be sure, but we must ask: Were McConnell and Co. flexing their political muscles just for the sake of flexing? Or because they opposed Judge Garland’s becoming Justice Garland and therefore gaining the authority, along with just four other justices, to impose his will on the entire nation? Obviously it’s the latter; the move was highly risky and thus it needs to be justified on grounds other than, “Screw Obama!”

At some level, the GOP understands that a non-originalist/“living constitutionalist” judicial philosophy is inherently disqualifying of a judicial nominee (at least one to the Supreme Court), and it doesn’t matter if that’s just because the nominees they oppose “would give us results we don’t like.” In this case, even if not in some others, the ends really do justify the means, and that’s because nominees bring their background assumptions onto the bench with them; judges whose basic disposition is non-originalist simply cannot be trusted to act as judges ought to act, how the Constitution envisions they’ll act.

The Constitution is far too important to be left in the hands of judges who see its provisions as having about as much solidity and force as silly putty. We cannot risk handing over the Constitution to judges who have no qualms about torturing it to say something it plainly does not whenever it’s politically expedient.

What we need is even more polarization, more rancor, over the judiciary. This polarization in our body politic is akin to a fever in a human body: Just as a fever combats sickness, so, too, does polarization. Except, instead of the flu, America is fighting the virus of judicial tyranny.

A Justice Kavanaugh would be the beginning of her recovery.

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Administrative State • Conservatives • Donald Trump • Government Reform • Law and Order • Post • Pro-Life • Republicans • Second Amendment • self-government • separation of powers • The Constitution • The Left • the Presidency

The Coming Restoration of the Constitution

Just as the upcoming midterm elections may be the most important of our lifetimes—since they will determine if the Trumpian Counter-Reformation will continue or be frustrated—the hearings this week on the nomination of Brett Kavanaugh to the United States Supreme Court are a watershed event in jurisprudence.

Fifty years ago there was a fragile consensus, even in our great law schools, about how justices were to go about doing their jobs. That consensus was formed by admiration for Felix Frankfurter, the occasionally mercurial, but stunningly brilliant, appointee of Franklin Roosevelt. Frankfurter, contrary to the later pattern of justices appointed by Republican presidents, moved to the right on the court, becoming more conservative with age. By the end of his career, in a series of thoughtful opinions, he had explained that the task of a justice was not to formulate new constitutional law according to his personal preferences, but, rather to exercise restraint and wisdom in preserving the original constitutional scheme of separation of powers and preeminence of state and local governments.

For Frankfurter, and for sensible justices since, in particular Justices William Rehnquist, Antonin Scalia, and Clarence Thomas, the federal government was one of limited and enumerated powers, and justices were supposed be jurists, not legislators.

By the turn of the 20th century in the law schools, at least, as I tried to show in my recent Law Professors: Three Centuries of Shaping American Law, the Frankfurtian consensus had collapsed, so-called “legal realism” had triumphed, adherence to the rule of law was out of favor, and the task of justices had been reconceived as that of Ephors uniquely qualified to dictate rules for the rest of their fellow Americans.

Dismantling the Old Constitution
It takes about 30 years for the wildest ideas in the legal Academy to be transformed into mainstream jurisprudence, and thus the jurisprudence of the far Left—Critical Legal Studies (the principal tenet of which is that law is simply politics)—which was in ascendance in the mid 1980s, profoundly shaped decisions such as Obergefell v. Hodges (2015), when the Supreme Court declared—rejecting millennia of experience—that the United States Constitution mandated that marriage could no longer be limited to a bond between one man and one woman. This followed the landmark opinion in NFIB v. Sebelius (2012), when Chief Justice John Roberts, who prior to that time had been regarded as a fairly reliable conservative, in the course of upholding the Patient Protection and Affordable Care Act (“Obamacare”), virtually declared there were no longer any limits on Congress’s legislative power.

Put simply, the court had laid the groundwork for the destruction of our constitutional scheme, and had nearly abandoned the traditional ideas that judges were not legislators and that it was the state and local bodies, not the federal government, that were supposed to be the primary movers in national life. Justices David Souter, Sandra Day O’Connor, and Anthony Kennedy, all Republican appointees, had been instrumental in this dismantling of jurisprudential tradition, but they are all gone now.

President Trump, influenced by Leonard Leo and the Federalist Society, as well as the Heritage Foundation, pledged to reverse this dismantling, and this was enough to garner him the support of a few of us traditionalists in the academy. He confirmed our faith in him with the Neil Gorsuch appointment, and he has done the same with the nomination of Brett Kavanaugh, a man squarely in the Frankfurtian mold, even if he comes from a hotbed of anti-Frankfurtian jurisprudence, Yale Law School. The Life of the Law, it would seem, is full of ironies.

A New “Swing Justice”
The Left has been apoplectic since the announcement of Kavanaugh’s selection, as it accurately perceives that this may mean a new direction on the court. Where Justice Kennedy had been the “swing justice,” supporting his progressive colleagues on social issues such as gay marriage and abortion, Kavanaugh’s joining the court will give the “swing” position to Roberts, perhaps the least conservative of what will now be a group of five.

Adam Liptak, the New York Times’s Supreme Court correspondent, and thus a reliable barometer of the progressives’ view of the Court, declared, “If Roberts assumes that position . . . he will lead a solid five-member conservative majority that would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations, and give religion a greater role in public life.”

Just so. The Supreme Court is not going to overturn Roe v. Wade (1973), the decision that somehow discovered a right to terminate a pregnancy in penumbras and emanations from various amendments, but that decision was clearly without adequate constitutional foundation, and the court has already begun the process of returning the protection of fetal life, at least in the later months of pregnancy, to the states, where traditionally it belonged. The same can be said of the protection of the right to vote, which even the 14th and 15th Amendments recognized was a matter for state and local governments.

Liptak is probably right about future court decisions by a conservative majority that may end other nefarious aspects of federal campaign regulation, as they should be ended. Such legislation, with the damnable McCain-Feingold law as the worst example, ought to be seen for what it is—incumbency protection. The remnants of McCain-Feingold and other such legislation effectively prevents newcomers to politics who cannot afford the consultants and lawyers who are necessary to conduct modern campaigns without running afoul of arcane and onerous rules, and the possible risk of fines and prison terms for violations.

A Litany of Dog-Whistles for the Left
This was a country founded on the propositions that there can be no order without law, no law without morality, and no morality without religion, as Supreme Court Justice Samuel Chase declared in a grand jury charge in 1803, voicing sentiments shared by Alexander Hamilton, George Washington, and before them, William Blackstone and Edmund Burke. Thus, it will be a salutary development if, indeed, the court gives religion, in Liptak’s words, “a greater role in public life.”

The Left’s dream of repeal of the Second Amendment is not going to be realized, and, accordingly, the court may, as Liptak expects, protect the traditional right to bear arms. That is now recognized as an individual right, like the others guaranteed in the Bill of Rights, and it should be no surprise that a conservative court would enforce it.

Conservatives traditionally have recoiled from the Left’s penchant for counting by race, and for seeing individuals not as fully-formed and unique human beings, but as markers in a political game pitting ethnic groups against each other. Increasingly, conservatives have held with Martin Luther King, Jr., that Americans should be judged by the “content of their character” (as well as their innate talents and abilities) rather than by the “color of their skin.”

Chief Justice John Roberts has been eloquent in condemning racial politics, and if he leads the Court to limit the “use of race-conscious decisions” he will be leading it in the right direction.

Liptak’s litany of dog-whistles for the Left are actually a program of traditional and sensible jurisprudence for the Right, and for the nation. President Trump has made a second brilliant appointment to the Supreme Court, and though the Left will rage this week, there should be enough senators who understand that it is the popular organs like the Senate that should be making the law, not the judicial branch, and that the Constitution will be better preserved in the hands of a Justice Kavanaugh.

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America • Donald Trump • Post • Republicans • separation of powers • The Constitution • The Courts • The Media • the Presidency • The Resistance (Snicker)

Packing and Unpacking the Court

In response to President Trump being called upon, once again, to exercise his constitutional power to fill a seat on the Supreme Court, Democrats broke the outrage meter. University of Baltimore Law School teacher Garrett Epps wrote at The Atlantic that “on the day the Democrats hold power to alter the makeup of the court by bare-knuckle means, they will do it. And they should.” “‘Eleven Justices,” writes the Huffington Post’s Zach Carter, “is the next ‘Abolish ICE.’”

After all, as journalist Michael Hiltzik tells us, “The fact of the matter is that the current court already is packed.” Senate Majority Leader Mitch McConnell (R-Ky.) and his fellow Republicans refused to hold hearings on President Obama’s nominee, Judge Merrick Garland, to fill the vacancy left by Antonin Scalia. The Senate “unpacked” the court—it held the court to eight members until after the 2016 presidential election, whereupon President Trump chose the young but white-haired conservative Neil Gorsuch to replace the deceased conservative Scalia.

Some of our conservative friends, such as John Yoo and Robert Delahunty, writing in a once-influential conservative fortnightly, think the Democrats’ current craze for court-packing is “foolish.” Indeed, in the run up to the 2018 midterms, with the Democrats out of power in Congress and the White House, it is electorally foolish. The liberal but cool-headed dean of UC Berkeley’s Law School, Erwin Chemerinsky, has explained why: “Progressives should be very careful about suggesting this might happen. Exit polls from the 2016 election indicated that the Supreme Court was the most important consideration for Trump voters, but not for Clinton voters . . . If they perceive Democrats might try and take the Court by changing its size, it will provide a strong appeal to conservative voters.”

But a little political science can help us distinguish between foolish and sensible occasions to pack the court. Empirical studies of the justices’ rulings shows that they are generally careful never to place the court as whole to the right or the left of both the president and Congress. This literature is much more coy about the explanation for this “moderation”: the president and Congress, if they are willing to act together, can make the Supreme Court they want.

Had President Obama replaced Scalia with Garland, the Republican president and Republican Congress actually elected in 2016 would have faced a court that, on the average, was well to the left of them both. Perhaps one or more of the liberal justices would have moderated their rulings, yet another “switch in time that saved nine.” Chief Justice Roberts can plausibly be viewed as swinging his vote on Obamacare in 2012 for similar reasons, though at that moment the House of Representatives was already under Republican control.

But if not, and if in 2017 and 2018 the liberal majority had sought to thwart key elements of a program that a Republican president had managed to push through Congress, court-packing—actual or threatened—would have been a wise response to restore constitutional democracy.

Surely Yoo and Delahunty are correct that it is better for the justices to restrain themselves and leave vital matters on which the text of the Constitution is silent to the elected branches, the states, or the people. It would be even nicer if we could all go back to the pre-Bork rule where clearly qualified men and women were confirmed for judgeships higher and lower without inquiry into every jot and tittle of their views. But failing a niceness revolution, constitutional officers must always be ready to use their full constitutional powers to realize their constitutional agendas.

Israel and India have genuinely independent judiciaries, where the Supreme Court is entirely (India) or largely (Israel) selected independent of the elected branches. America’s Founders were wiser, and left the responsible politicians to check the “least dangerous branch”—and defang it, when necessary, through packing and unpacking.

America • Americanism • Post • separation of powers • statesmanship • The Constitution • The Courts • Trump White House

Not Your Father’s Supreme Court

President Trump on Monday announced that he was appointing D.C. Circuit Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court. Not since his trip down the escalator to announce he was running for president has Donald Trump uttered more significant words.

Almost exactly a year and a half ago, I wrote the following for American Greatness: “The day after a Supreme Court nomination announcement is like Christmas morning for court watchers. It’s even more special, really, because we only get a Supreme Court nomination every five years or so.”

As it turns out, we got two nominations in the first two years of President Trump’s first term. This appointment is by far the more significant one, both as a political and a jurisprudential matter.

Last year, President Trump appointed Neil Gorsuch to replace Justice Scalia, who, by most measures, was one of the most conservative justices on the high court. And Scalia was certainly the most outspoken Justice in endorsing originalism as a constitutional theory of interpretation. Although Neil Gorsuch does not appear to be quite as conservative as Scalia, and is certainly not as outspoken in endorsing originalism, he does not differ significantly on either point.

The Kavanaugh nomination is different, however, because in this appointment, President Trump is replacing Anthony Kennedy, who was always a mystery, both politically and jurisprudentially.

Kennedy, it is important to remember, was nominated in 1987 by President Reagan only because Judge Robert Bork had not been confirmed. Kennedy’s 30-year career on the Supreme Court meandered—steering conservative on legal issues relating to economic liberties, but liberal on issues relating to social and cultural matters. So Kennedy was a reliable conservative vote, for example, in cases involving campaign finance, the Affordable Care Act, and the preemption of state economic regulation. But he was a reliable liberal vote in cases involving abortion, sexuality, and race relations.

Put simply, Kennedy represented the libertarian wing of legal conservatism.

As I have written elsewhere, this is not the future of the American Right. The election of Donald Trump was historic, monumentally so, but not so much because of Trump himself. It was historic because of what Trump represents: a shift in the electorate’s willingness to eschew the encrusted ideological strictures of past generations, particularly when it comes to economic matters.

As Trump said more than a year before the election, it was not really about him: “This is a movement,” he proclaimed.

And indeed it is. It is a movement that rejects the foreign policies of both parties—policies that have wrought death and destruction, principally in Middle America. It is a movement that rejects the trade policies of both parties—policies that have hollowed out the middle class, leaving American cities with the contrasts of opulent high-rises and crumbling housing projects. It is a movement that rejects the immigration policies of both parties—policies that provide cheap labor at the expense of cultural conflict and community dissolution.

So when Anthony Kennedy announced his retirement, my only question was the following: Which of Trump’s candidates displayed the greatest promise in advancing this agenda?

The answer was easy: Brett Kavanaugh.

As I wrote for Real Clear Politics last week, Kavanaugh was the right pick, because the other candidates, though strong conservatives, “have thin or questionable records on the defining issue of the 2016 election—whether American sovereignty, and the forgotten American worker, will once again play a critical role in our polity.”

Brett Kavanaugh was the only one of Trump’s candidates who has repeatedly interpreted American statutory and constitutional law against the background of our national sovereignty. In case after case, Judge Kavanaugh has sought to understand our immigration law, trade regulations, and constitutional guarantees in light of how they affect average Americans.

This is what I have called “America first originalism”—a process of understanding our most fundamental law according to the ways and traditions of our lived experiences, not the abstractions and platitudes of party slogans.

What does this say about how Kavanaugh will vote on hot-button issues? Predicting how a lower court judge would decide cases if appointed to the Supreme Court is a fool’s errand. I can’t say how Kavanaugh will rule on abortion. I can’t say how Kavanaugh will interpret the Second Amendment.

But I can say that Kavanaugh will be more grounded to tradition than his predecessor. And he may be less wedded to interpretive strictures than Scalia and Gorsuch. As Kavanaugh proclaimed last night in accepting the nomination, “a judge must interpret the constitution as written, informed by history, and tradition, and precedent.” This is precisely what led me to say that Kavanaugh would be the best pick for Trump’s constitutional vision.

That is not to say that Kavanaugh will be the embodiment of Trump’s political or legal vision. Heck, Trump is not the embodiment of Trump’s vision. But the election of President Trump and the nomination of Judge Kavanaugh are perhaps the two biggest signs in the past two years of where the Republican Party and American conservatism are heading.

In short, this is not your father’s (or George Will’s) Republican Party. And soon this may not be your father’s Supreme Court, either.

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Administrative State • America • Americanism • civic culture/friendship • Democrats • Donald Trump • Post • Republicans • self-government • separation of powers • The Leviathian State • The Resistance (Snicker)

The Overlords Have Arrived

Ten years ago, in the runup to the 2008 Democratic National Convention, candidate Barack Obama let slip his opinion of America’s working class voters: “They get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.”

His opponent, Hillary Clinton waxed into melodramatic indignation. “I was taken aback by the demeaning remarks Senator Obama made about people in small-town America,” she said. “His remarks are elitist and out of touch.”

But as Democrat presidential nominee in 2016, Clinton had not only come around to Obama’s point of view, she dutifully proclaimed it with a statement that may have helped sink her candidacy: “You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?” Clinton said. “The racist, sexist, homophobic, xenophobic, Islamaphobic—you name it.”

The architect of Obamacare, MIT professor Jonathan Gruber, showed the sheer contempt the progressive elites have for the American people in his remarks on the admittedly intentionally deceptive campaign he ran to impose the Obamacare fiasco. He explained with pride the Obama Administration’s campaign of massive deceit of: “The lack of transparency is a huge political advantage” and that “the stupidity of the American voter ... was really, really critical for the thing to pass.”

Looking back as the sand castles of Obama’s “legacy” of temporary executive orders crumble in the face of the torrent of the pen, phone, and legislation of workaholic Donald Trump, Obama had second thoughts: “Maybe we pushed too far,” Obama said. “Sometimes I wonder whether I was 10 or 20 years too early.”

It’s a good question. And America is in the process of answering it. Will the elites win in the end, or did their arrogance and contempt for the American electorate begin the slow process of ending their infestation of “the commanding heights” of powerful institutions of government, the nonprofits, academia and the media?

Futurist Arthur C. Clarke’s most highly praised novel, published in 1953, was called Childhood’s End. Clarke was one of the first to posit a future in which the extraterrestrial aliens finally showed up. His alien “Overlords” were all-powerful, but appeared wise and compassionate and determined to help those on Earth unite with some peaceful multiglobal universal order they claimed would benefit all.

The Overlords carefully remained out of earthly affairs, except to stop conflicts and offer cures to diseases and valuable technology that created an age of global prosperity. Most humans forgot about them and went on with their lives. The Overlords only communicated through the Secretary General of the United Nations and stated they would not deal directly with the human race for another 50 years.

But as time passed, the creativity, vigor, and intelligence of the human race was radically diminished. Children increasingly appeared to be transforming into another species entirely. And it became clear the Overlords served some Universal Overmind that had found the human race and its world extraneous to its higher purpose. They were doomed.

If we look what is happening to the young in America today, we can see something similar. Journalist Salena Zito recently took her class of young transitioning aliens from Harvard to boldly go where no classmates had gone before—on a trip to parts of the “red” United States that were as foreign to them as Outer Mongolia. What were they learning at Harvard? “They admitted they had been fed a steady diet of stereotypes about small towns and their folk: ‘backwards,’ ‘no longer useful,’ ‘un- or under-educated,’ ‘angry and filled with a trace of bigotry’ were all phrases that came up,” she wrote in the New York Post.

But despite Zito’s efforts, 62 percent of Harvard’s class of 2018 is moving to the Blue State Littoral Progressive Paradise: New York, Massachusetts, California and D.C., another almost 10 percent overseas. That’s almost 75 percent. Forty years ago Harvard grad John LeBoutillier published a controversial book named, Harvard Hates America. As Harvard and other elite schools have transitioned from educational institutions to Progressive reeducation centers, there is nothing controversial about LeBoutillier’s concept today.

Today, Americans are trying to separate their consideration of an investigation into possible Russian interference in the 2016 election from what increasingly looks like the wreckage of a failed coup against the election and office of the current president. And the signs of a confrontation across barricades between Americans and their self-appointed Overlords is revealed daily in the transcripts and testimony of the participants in congressional hearings and inquiries.

When Peter Strzok finally gave his long-awaited closed door congressional testimony, he was accompanied by three FBI lawyers to make certain he answered none of the questions the Department of Justice wished to consider “sensitive and classified,” whatever Congress might think. This turned out to be the majority of the important questions he was asked.

A day later in his own testimony, a smirking Deputy Attorney General Rod Rosenstein, representing what might be most appropriately called the Department of Obstruction of Justice, huffily protested the indignities of congressional oversight. Rep. Jim Jordan (R-Ohio) and other congressional interrogators had reminded Rosenstein that not only had requested documents not been produced, key documents had also contained evasive omissions and redactions, no matter how many pages had been sent over. “Why are you keeping information from Congress?” Jordan asked.

But Rosenstein was taking responsibility for nothing.  “I am the deputy attorney general of the United States. OK? I’m not the person doing the redacting.”

“You’re the boss,” admonished Jordan.

“He works for you, doesn’t work for us,” Jordan reminded Rosenstein, who had claimed no responsibility for Strzok’s evasions under Justice Department counsel, either.

“One-hundred-and-fifteen-thousand people work for me,” Rosenstein replied, making abundantly clear that while his Justice Department mob may not be helping Congress to its satisfaction in reviewing critical documents in question, it was doing so very much to his.

Overlords like Rosenstein feel perfectly comfortable waiting out the momentary passions of congressional sheep who are unwilling to use their power. Their goal is excruciating delay to prevent any external understanding that might be dangerous to the power of the institutions they control. They thwart any attempt to impose constitutional controls on the agencies they choose to see, against all law and precedent, as “independent.” After all, the “arc of history” bends towards the “fundamental transformation” of America. And the architect of that transformation, Barack Obama, was also the architect of the clearing of Hillary and the surveillance and hounding of Trump and his campaign by the Department of Justice, FBI and the Intelligence Community. President Trump may call it a “witch hunt,” but it is still underway, almost two years into his administration, with the outcome undecided.

To progressives, a “restoration” of the authentic rule by the Overlords is tantalizingly close. And they are as intent as Bonapartists or Jacobites on that restoration—by any means possible. The only election they regard as legitimate is one with an outcome they can accept. As the corpse-faced chairman of the Democratic National Committee, Thomas Perez, just reminded everyone in introducing Obama at a Beverly Hills fundraiser, “Let’s give it up for the real president of the United States.”

America • American Conservatism • Americanism • Conservatives • Cultural Marxism • Donald Trump • Greatness Agenda • Neil Gorsuch • Post • Religion and Society • separation of powers • statesmanship • The Courts • the Presidency • Trump White House

Anthony Kennedy Got Tired of All the Winning

For the longest time, NeverTrump “conservatives” have insisted that the only good thing Donald Trump has done as president is to appoint Neil Gorsuch to the U.S. Supreme Court; and even then, they often claimed this was not enough to save his presidency in their minds, thus giving rise their oft-repeated mocking mantra for Trump supporters: “But Gorsuch!” Well, you’re damn right, “But Gorsuch!” Now, those eternal skeptics and pessimists are eating their own words faster than Kim Jong-un could eat his first-ever McDonald’s Happy Meal.

There has not been a Supreme Court decision season stacked with more victories for the Right than this one. Eight different rulings  this term pushed back against the onward march of the Left and proved just how strong a bulwark for freedom the Supreme Court can be.

The first and most high-profile decision, of course, was the Masterpiece Cakeshop case, where it was ruled that Colorado baker Jack Phillips had the right to refuse baking a wedding cake for a gay wedding due to his religious beliefs. This decision was reached by the court’s four conservative justices along with swing vote, Anthony Kennedy.

Then came a handful of cases that all dealt serious electoral blows to Democrats in three different states. In two different gerrymandering cases, the court ultimately ruled that Democrats in Wisconsin had no standing to sue for what they claimed were districts unfairly drawn in favor of the state GOP. They similarly ruled in another, later case that Democrats in Texas could not sufficiently prove that most of the state’s districts were drawn in a way that deliberately undermined minority voters and gave more power to the GOP. In addition, the court ruled that Ohio was legally allowed to continue its practice of purging inactive voters from the state’s voter rolls if they have not voted in two years, thus further reducing the possibility of voter fraud from fake, illegal, or deceased voters.

In another significant case, a victory was handed down by a much more unusual majority: The court’s four liberal justices, along with Chief Justice John Roberts, ultimately ruled that police must obtain a warrant in order to acquire an individual’s location information from their cell phones. Although the court’s three other conservative justices and Kennedy dissented, this case nevertheless was a win for Fourth Amendment privacy rights.

Then came a case with several different implications beyond the initial ruling, when the court’s four conservative justices and Justice Kennedy ultimately ruled that pro-life “crisis pregnancy centers” in California could continue operating without being forced explicitly to promote abortion as an option for its clients.

Not only was this a significant victory for the pro-life movement, it also overturned both a state law in California requiring such centers to promote abortion as an alternative, as well as a Ninth Circuit ruling upholding it. Such a ruling could potentially mark the first of many instances where the Supreme Court begins directly to take on, and defeat, the far-left government of California on its own turf, overturning such laws that violate Constitutional rights, and are sometimes passed just for the sake of spiting President Trump and his supporters. The shadow of this ruling, undoubtedly, will loom long over the highly-anticipated federal lawsuit concerning California’s “sanctuary state” law.

Then, in the most personal victory for President Trump thus far, the court upheld his executive order implementing a travel ban on several unstable Middle Eastern nations, as well as the Communist nations of Venezuela and North Korea. Not only was this a bucket of ice water over the Left’s narrative that this ban was an example of “Islamophobia,” but the majority opinion by Chief Justice Roberts directly reaffirmed that the president has “considerable authority over immigration,” as well as a “responsibility for keeping the nation safe.” This potentially could set a precedent for more sweeping executive action on the broader immigration front going forward, especially as Congress continues to drag its feet on the issue.

Perhaps the biggest ruling, in terms of overturning the long-standing status quo, was when the majority ruled that public-sector employees can no longer be coerced into paying union membership dues when they are not a member of said union. Although this does not encompass private-sector unions, it nevertheless sets a tone. Moreover, employees of such occupations as the federal government or public education no longer have to pay fees to organizations that overwhelmingly espouse left-wing talking points.

With all of these monumental cases and repeated setbacks for the Left, the only other possible victory in relation to the Supreme Court would be the announcement of a justice retiring and opening up a seat to potentially be filled with a right-wing judge . . . which is exactly what happened.

Kennedy, who has been the swing vote in many crucial decisions since he was first appointed by Ronald Reagan in 1988, announced his intention to retire on July 31. In response, President Trump declared that the process to replace him would begin “immediately,” and that his successor would come from the same list from which he chose Gorsuch, which was compiled by the Federalist Society and the Heritage Foundation.

As the battle for Congress in November rapidly approaches, this development instantly has become the top priority for the Trump Administration, coming off the failure of Congress’s latest efforts to reform the American immigration system. It will undoubtedly be an issue that rallies both party bases, and the eventual end result ultimately could determine the fate of the Senate.

Photo credit:  Zach Gibson/Getty Images

2016 Election • Administrative State • America • Donald Trump • Government Reform • Law and Order • Post • self-government • separation of powers • statesmanship • The Constitution • The Left • The Leviathian State • The Media • the Presidency • The Resistance (Snicker)

Trump’s Message: Full Transparency to Restore Trust

Back in the day, I wrote for a president. Not speeches, mind you, but special correspondence and proclamations. Watching this entire nauseating mess with the Justice Department and the FBI—agencies that many believe are corrupt to their core—I thought I’d write a statement for President Donald J. Trump that he could use to address the issue.

It goes like this:

Today I am announcing as president of the United States and head of the executive branch, acting on behalf of and in the interests of “We the People,” that I am ordering my subordinates at the Department of Justice and FBI to turn over immediately all un-redacted, relevant documents and make all witnesses available to Congress related to the Hillary Clinton server and email investigation, the hacking of the Democratic National Committee and the Russian election influence investigations. 

Under my Article II powers, there is no executive privilege or separation of powers issue for me in ordering these actions. This is not a capitulation to a coequal branch of government but rather an exercise of my constitutional authority.

It is abundantly clear from the inspector general’s report that high ranking officials at the Justice Department and FBI acted with extreme bias on behalf of Hillary Clinton and her associates when they investigated her private email server. These senior officials went so far as to order that the investigators go easy on Clinton as she would be the next president of the United States.

Those same high ranking officials clearly took a different approach to investigating my campaign. They used every weapon in their arsenal—wiretaps, informants, grand juries and the like—to go after my campaign on this bogus ‘collusion’ matter.

But this goes beyond the 180-degree difference in tactics between the two investigations—kid gloves for Hillary versus an iron fist for my campaign. This is about a two-tiered system of justice—one for the protected class of elites like Hillary, an approach that avoids using even the normal investigative tools versus the other in which agents and prosecutors, in the words of Lisa Page, the former FBI counsel to Deputy Director Andy McCabe, come “loaded for bear.”

What other American would be given such courtesy by the FBI and the Justice Department? Other Americans have been treated to pre-dawn, no-knock search warrants with FBI agents busting in the door. Would the FBI accept from other Americans, without consequence, the destruction of evidence—using BleachBit to destroy electronic evidence or hammers to destroy mobile phones and laptops? Would they accept the blatant and systematic flaunting of our laws regarding the handling of classified documents?

Further, if an American lies to the FBI, he or she gets prosecuted, unless that American is a Clinton associate. If the FBI lies to us, however, they get “bias and sensitivity training.”

Unfortunately, it seems that the attorney general, deputy attorney general, and FBI director are more interested in protecting their broken institutions than fixing them. They can’t even seem to admit there is a problem.

Reform starts with an admission and an acceptance that there is a problem.

Reform starts with a full accounting to the American people.

To that end, I am ordering the Justice Department and the FBI immediately to turn over to Congress all un-redacted relevant documents including all classified information. The members of the relevant congressional committees have the appropriate clearances and they clearly have a right to know. I am ordering that all agents and lawyers requested by the relevant committees be produced for interviews and testimony.

The American people have lost faith that the Justice Department and FBI are committed to the bedrock principle of our justice system: Equal justice under law.

Full transparency will be the first step in restoring that faith and sanitizing the infection of bias and abuse. Because if we lose faith in the institutions that have been entrusted to protect and defend the ideas of the rule of law and even-handed justice, we will have lost our way as a country.

On behalf of the American people, and in defense of our ideals and the Constitution, I will sign today an Executive Order compelling full transparency and accountability from the Department of Justice and the FBI effective immediately.

Photo credit: Nicholas Kamm/AFP/Getty Images

Administrative State • America • Big Media • Congress • Deep State • Democrats • Donald Trump • GOPe • Government Reform • Immigration • Law and Order • Post • separation of powers • The Constitution • The Media

Fake News Finally Scores on Trump

The media earlier this week reported breathlessly that President Trump was separating children from their parents at the border and placing them in cages. Trump was doing it, commentators claimed, because he is a mean, racist jerk, and this finally proved it.

It was fake news, as usual. For the first time, though, President Trump capitulated to the fake narrative and changed his administration’s approach. It remains to be seen whether the Lone Ranger’s mask has finally slipped or if the president is just living to fight another day.

Contrary to reports, Trump did not have policy directed at separating parents from their children. The separation was a consequence of law enforcement. When parents illegally enter the country, they have broken the law. Because Western governments have not imprisoned children with parents since the time of Dickens, the parents go to jail and the kids go somewhere else.

That “somewhere else” was decided by the Department of Health and Human Services. Pictures of fencing around processing centers notwithstanding, HHS was not putting kids in cages. American taxpayers were instead spending huge amounts of money to make reasonable accommodation.

The holding areas that were called cages existed during the Obama Administration and were used for the same purpose. They were not built in the 500 days of Trump.

In most cases, the children and their parents were separated for a few hours while the crimes for illegal entry were processed. Then the family was reunited and released to the country of origin.

Hysteria about all this was phony in the way the media always is about Trump, distorting and otherwise failing to contextualize, thereby creating a false impression.

If fenced-in areas are not cages but holding areas, and if they existed in the Obama administration and generated no outrage, then when a CNN reporter yelled “cages” at Sarah Huckabee Sanders and asked about her own children, it was nothing but political agitation by a member of the press in the White House Briefing Room, and not a genuine crisis.

Here is the context that the media generally left out. Lengthier separations are caused when the parents claim asylum. That initiates a longer juridical procedure—several weeks—and federal law says that children cannot be held for more than 20 days. In those cases, HHS must spend lots more taxpayer money finding foster care away from the parents.

Asylum seekers could avoid this snafu by arriving in America at a port of entry, where bureaucracies have created means to handle such complications. When they snuck in under cover of darkness at the border, though, they looked less like political exiles and more like people interested in entering America to take advantage of off-the-books wages.

The Obama Administration tended to release the parents and their children into the general population upon a claim of asylum. Trump changed that policy because the beneficiaries too often entered the United States and did not show up at their asylum hearing. Instead, they got lost in the crowd.

Basically, they were using their children and a false asylum claim to game the system and Washington was playing along.

In his 2006 autobiography, The Audacity of Hope, Obama called immigration reform, “a sop to big business, a means for them to employ immigrants without granting them citizenship rights.” He noted that such reform, “threatens to depress further the wages of blue-collar Americans and put strains on an already overburdened safety net.”

Trump ran on a claim that he would enforce immigration laws. He won the votes of blue-collar workers and with that, the presidency. He has been fulfilling his campaign promise by prosecuting border crossers and closing big-business loopholes.

It is an act of compassion to remove perverse incentives that cause parents to break the law with their children. Every mainstream religious tradition, including the Catholic Church, teaches that people are required to obey just civil laws.

The Catholic Church also teaches that a person is morally compelled to follow an oath voluntarily taken. So that when Donald Trump placed his right hand on the Bible and promised to uphold the law, honor compelled him as president to enforce America’s immigration laws.

President Trump has asked Congress to pass a law that remedies America’s border security problems so that innocent people are not caught in the current ridiculous dragnet.

On Thursday, in response to the public outcry the news reports caused, the president unilaterally modified his administration’s policy by executive order, allowing the children and their parents to be detained together even after 20 days.

Giving CNN what it wants will have the effect of locking up children with their parents, evoking the next set of hysterical Dickensian objections. Perhaps that is ground Trump prefers. If so, it is the first time he has retreated to higher ground.

Congress can rescue the president by passing a rational law. It remains unlikely that Congress will act, however. Too many of them are beneficiaries of the Trump-bashing fake news cycle that their dysfunctional laws cause.

If things are not fixed, they get to say Trump puts children in cages, and the uncritical media plays along.

Photo credit: Philippe Marion/Moment via Getty Images

2016 Election • Administrative State • Big Media • Center for American Greatness • Deep State • Donald Trump • Free Speech • Government Reform • Mueller-Russia Witch Hunt • Obama • Post • separation of powers • The Media • The Resistance (Snicker) • Trump White House

The FBI Hates Trump—and His Voters, Too

During his recent book tour, ex-FBI Director James Comey made it clear that he detests Donald Trump.

Comey mocked Trump’s appearance—commenting on his “orange skin” and the bags under his eyes—and compared the president to a mob boss. He said Trump is unfit to be president, and even questioned his marriage. On Twitter, Comey taunts the president with self-aggrandizing tweets and suggests Trump’s day of reckoning will soon arrive. During an interview last spring, Comey’s wife admitted she and her daughters voted for Hillary Clinton and attended the Women’s March to protest Trump’s presidency the day after the inauguration.

But as the old saying goes, a fish rots from its head, and that certainly is the case with Comey’s FBI. (Trump fired Comey in May 2017.) Several passages in the Justice Department’s Inspector General report on the agency’s handling of the Clinton email investigation illustrate the FBI’s culture of contempt for Trump, before and after the election.

Comments from key law enforcement officials—lawyers and investigators—about Trump were vile, demeaning, and childish. But their ridicule was not isolated to Trump. These public servants were unsparing in their contempt for the voters—the very people who fund their salaries and pensions.

The Case of Strzok and Page
Let’s start with Peter Strzok and Lisa Page, the FBI lovers who are connected to the Clinton email probe, the counterintelligence investigation into the Trump campaign, 
and Special Counsel Robert Mueller’s team. We know from previously-reported text exchanges that Strzok and Page harbored a deep disdain for Trump and a political preference for Clinton. The IG report confirms their bias after reviewing more than 40,000 messages between the two:

These text messages included political opinions about candidates and issues involved in the 2016 presidential election, including statements of hostility toward then-candidate Trump and statements of support for candidate Clinton. Several of their text messages also appeared to mix political opinions with discussions about the Midyear [Clinton email] and Russia investigations, raising a question as to whether Strzok’s and Page’s political opinions may have affected investigative decisions.

While Strzok was working as the lead investigator on the Clinton email probe, he and Lisa Page, then an FBI attorney, exchanged dozens of messages that were critical of the presumptive Republican presidential nominee. Strzok called Trump “an idiot” on several occasions in the spring of 2016, and Page concurred: “He’s awful. This man cannot be president.” After he won the nomination, their scorn intensified. Page called Trump a “douche” and Strzok called him a “disaster” and a “fucking idiot.” They both worried he might win. In referencing a news article the day before the election, Strzok sent a panicked message to Page: “OMG THIS IS F*CKING TERRIFYING.”  

(When questioned by the IG’s office about the tone of the texts, Strzok insisted they were merely “personal opinion talking to a friend and that “the political opinions he expressed in the text messages never transited into the official realm.”)

But that’s a bit hard to believe since Strzok started conspiring in the summer of 2016 about how to respond if Trump won. When asked by his inamorata to assure her Trump would not be the next president, Strzok replied: “No. No he’s not. We’ll stop it.”

And while considering whether to join Mueller’s team in May 2017, Strzok fantasized about his role in an “investigation leading to impeachment.” When Page told Strzok in March 2017 that she had just finished reading All the President’s Men, Bob Woodward and Carl Bernstein’s account of the Watergate scandal, she noted how the president resigned at the end. Strzok replied, “What?!?! God, that we should be so lucky.”

The lovers also criticized Republicans, conservatives, and Trump voters. In early 2016, they complained about the annual March for Life. Page told Strzok, “I truly hate these people. No support for the woman who actually has to spend the rest of her life rearing this child, but we care about ‘life.’ Assholes.” (Strzok then joked about canceling the permit for the event.) During the primaries, Strzok remarked, “the Republican party is in utter shambles. When was the last competitive ticket they offered?” Then in August 2016, Strzok texted Page, “Just went to a southern Virginia Walmart. I could SMELL the Trump support . . . .”

Tax-Funded Contempt
Buried toward the end of the report are shocking comments from three unnamed FBI officials. The inspector general slams the three—as well as Strzok and Page—for “conduct [that] has brought discredit to themselves, sowed doubt about the FBI’s handling of the Midyear investigation, and impacted the reputation of the FBI.” Two FBI agents repeatedly referred to Trump as “drumpf.” In an exchange in September 2016, one agent joked about not wanting to spend time with his colleagues: “i (sic) would rather have brunch with trump and a bunch of his supporters like the ones from ohio that are retarded.”

The day after the election, one FBI officials lamented, “Trump’s supporters are all poor to middle class, uneducated, lazy POS that think he will magically grant them jobs for doing nothing. They probably didn’t watch the debates, aren’t fully educated on his policies, and are stupidly wrapped up in his unmerited enthusiasm.”

An FBI attorney responded: “I’m just devastated. I can’t wait until I can leave today and just shut off the world for the next four days.”

Then this gem: “I honestly feel like there is going to be a lot more gun issues, too, the crazies won finally. This is the tea party on steroids. And the GOP is going to be lost, they have to deal with an incumbent in 4 years. We have to fight this again. Also Pence is stupid.”

Keep in mind, these are the idiots sending messages like this on government devices.

All of the FBI officials cited in the report claimed their personal and political views did not impact their professional work. Incredibly, Inspector General Michael Horowitz seemed to agree. His report concludes that his team “did not find evidence to connect the political views expressed in these messages to the specific investigative decisions that we reviewed.”

But Americans know better. The public and private comments by top law enforcement and intelligence officials in the Obama Justice Department demonstrate a level of contempt for Trump that resulted in a bogus counterintelligence operation into his presidential campaign; the leaking of classified information to hurt Trump associates; and a special counsel investigation that has roiled the presidency and divided the country.

And now we know they hate us, too.

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2016 Election • Administrative State • Big Media • Deep State • Democrats • Donald Trump • GOPe • Government Reform • Mueller-Russia Witch Hunt • Political Parties • Post • separation of powers • The Constitution • The Left • The Media • The Resistance (Snicker)

President Trump’s September Surprise

Imagine if, on the evening of Tuesday, September 4, President Trump delivered the following speech from the White House . . . 

My fellow Americans,

Traditionally, this is the day when the country ends summer fantasies, gets back to work and to school—when we get serious. And it is high time for our political system to follow suit and get serious. Tonight we start.

Two months from now, we will vote for 435 members of the House of Representatives, 34 senators, and countless other officials. Since the last election, we’ve been bombarded with accusations from government officials acting in semi-secrecy and through friendly collaborators in the media that your votes were somehow tainted, and the election results were illegitimate.

Sadly, this outrageous campaign has abetted the Democratic Party’s near-unanimous refusal to accept the results of our election. Aptly, they call what they have been doing “the Resistance.” This open cabal of officials, of the media, of corporate America’s leadership, these upscale lords of the universe, are trying to overturn the results of the last presidential election.

They aim to convince you that you are stupid, unsophisticated, and at least a little racist. In short, they want you to know that you can’t govern yourselves as well as they would have you governed. They tell you that you must vote for Democrats, any and all Democrats, because if enough are elected, they will impeach Donald Trump who is responsible in part for the stupidity, racism, sexism, etc. that led you to vote as you did in 2016.

For what will they impeach me? For having done exactly what? They won’t say directly. They want an endless investigation producing more leaks and suggestions that the worst of the allegations about me may be true. And they want elections to be run on the basis of their smoke and mirrors campaigns.

But it’s time to get serious. That’s why, tonight, I’m telling them what Muhammed Ali told George Foreman after he had absorbed his best punches: Now it’s my turn.

So, tonight, hear this.

Robert Mueller, you’re fired. As of noon Eastern Daylight Time on September 5, along with every person you have hired, you are no longer an employee of the United States. The same goes for Deputy Attorney General Rod Rosenstein. I am canceling all security clearances of yours and of theirs as of that hour. By that moment, you and they will have delivered to the Justice Department’s inspector general every copy of every document connected with your investigation of anything having to do with the 2016 election, and every electronic instrument containing such documents. After that moment, your possession of any such documents, in any form, will be prosecuted to the fullest extent of the law.

Second, in the exercise of my authority under Article II of the Constitution, I hereby declassify, as of noon Eastern Daylight Time on September 5, any and all documents in the possession of the Department of Justice, the Department of State, the FBI, the CIA, and the National Security Agency relating in any way to the election of 2016.

The attorney general, the secretary of state, the director of central intelligence, and the secretary of defense shall instruct officials under them to put all such documents online, without redactions. If any of these officials believe that the publication of an item in any of these documents could get anybody killed, they will have to convince me to redact it.

Before now, charges and countercharges were made on the basis of speculation and partial leaks about what these documents contain. This has divided Americans needlessly while giving unfair advantages to insiders and to those connected with them. From now on, as a consequence of my order, the New York Times’ reporters will have access to absolutely everything. But so will everybody else. People will be able to make up their own minds on the basis of information available equally to all. That’s democracy.

Third, I invite any and all members of the House of Representatives who have spoken of impeaching me to draw up those articles of impeachment and to introduce them.

Calling for impeachment is the only responsible thing that the Democratic Party’s “Resistance” has done. If you’re trying to overturn the results of the last presidential election, trying to impeach the president is the constitutionally correct way to do it—especially just prior to congressional elections. If the American people don’t want me as their president now, all they have to do is vote for the would-be impeachers.

So tonight I ask the speaker of the House to bring these articles to the floor, to give their proponents time to promote them, and then bring them to a vote before the November elections. That way, the American people can judge for themselves whether I am the bum who should be thrown out, or whether these Washington insiders are the bums.

I believe—and I hope that you will agree—that a debate on impeachment followed by votes prior to the congressional elections, based on everybody having access to all information, is a fairer, better, more American way forward than an unending parade of innuendo and leaks based on improperly classified information.

What I am doing tonight is, unquestionably, within my power as president of the United States. The Constitution directly empowers only one executive official: the president. All other executive officials are responsible to the people through the president, who is elected by the people in the several states.

Since the president is the only official with a direct responsibility to the people through elections, the president must have the power to dismiss officials when they do not act as the president wishes. In fact, it is the president’s duty to fire officials who are not in accord with him since he was elected, and they were not, to represent the solemn will of the people.

The existence and forbearance of that absolute presidential power and duty are what makes subordinate officials responsible, and hence democratically legitimate. If the American people don’t like any particular firing, they can fire the president through impeachment. That’s how it works. I fired James Comey, and I just fired Mueller and Rosenstein, as is my constitutional right. I did it because they joined “the Resistance,” trying to overturn the results of the last election by manipulating classified information and the justice system. They say they want the law. That’s what they are getting—and are going to get.

I am taking the relevant information out of the hands of insiders and putting it into the hands of all Americans. I am taking this struggle out of corrupt institutions, and putting it right back into open, constitutional channels. Anybody want impeachment? I say, bring it on!

I’m sure that the lords of the swamp will find something wrong with this. But I’m confident that most Americans will regard it as good common sense.

Thank you. God bless you. And God bless America.

Photo credit: Mandel Ngan/AFP/Getty Images

America • Congress • History • Post • separation of powers • The Constitution • The Courts

Madison v. Marshall

In 1824, a retired James Madison was corresponding with the writer Henry Lee IV, half-brother of Robert E. Lee and son of the Revolutionary War hero “Light Horse Harry” Lee. The former president is known to history as “the Father of the Constitution” and the man who helped shepherd the Bill of Rights through the first Congress. But Madison demurred from offering Lee (known to wags as “Black Horse Harry” because of his involvement in a family sex scandal) his opinion of some political and historical works Lee was promoting. “I find that the span of life is contracting much faster than the demands on it can be discharged,” Madison wrote.

Nevertheless, Madison offered Lee this morsel:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers. . . . And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased enquirers into the history of its origin and adoption.

Who primarily was to blame, in Madison’s eyes, for this sorry state of affairs? That would be John Marshall, chief justice of the United States.

Marshall, who served from 1801 to 1835, longer than any other chief justice, was by common assent the greatest of them all. He is best known for his rulings in two cases: Marbury v. Madison (1803), which declared the Supreme Court’s power of judicial review to invalidate unconstitutional acts of Congress, and McCulloch v. Maryland (1819), which allowed Congress considerable discretion in the “necessary and proper” exercise of its enumerated powers. Both opinions were condemned by Marshall’s contemporary critics, and hailed by his modern successors, as instances of what we now call “judicial activism.”

According to Jonathan Turley, for example, Marshall’s Marbury opinion provoked “protests that he was amending the Constitution through the ruling—the earliest allegation of judicial activism.” Chattanooga history professor Larry Ingle (taking issue with something I had written about Marshall in my newspaper days) wrote that in Marbury, Marshall “used a minor administrative case to decide that a mere majority of the Supreme Court had final power to determine what the Constitution meant, even in the face of a congressional majority.” That, Ingle wrote, is an “undeniably judicial activist” ruling. “The phrase ‘judicial review’ is not only absent from the Constitution,” he wrote, “it is also not even implied, except by the broadest reach of a judicial activist.”

I lack the credentials to go toe-to-toe with Turley or even with Ingle. What I know about Marshall comes mainly from Raoul Berger, a man who in my view outranks them both. And according to Berger, Marshall was no activist.

Before going on, I should note that as used here, the phrase “judicial activism” is the antonym of “originalism,” not the antonym of “judicial restraint.” It doesn’t mean an inclination (rather than a hesitancy) to overrule the actions of elected officials or the decisions of previous courts. Instead, activism means the interpretation of the Constitution, on questions where its original meaning is clear, in a sense deliberately contrary to that meaning so as to obtain a result favored by the judge. As the Encyclopædia Britannica puts it, “In political rhetoric activism is used as a pejorative. To describe a judge as activist in this sense is to argue that he decides cases on the basis of his own policy preferences rather than a faithful interpretation of the law, thus abandoning the impartial judicial role and ‘legislating from the bench.’”

The controversy surrounding Marshall began long ago, but it continues to affect our lives today. Indeed, for many hundreds of thousands of us, learning the truth of the matter, and having that truth prevail among those who today expound the law to us, can be a matter of life and death.

Was Marbury, as today’s judicial activists would have it, a piece of sneaky business in which Marshall smuggled judicial review into the Constitution without the people’s knowledge or consent? That may be an apt description of their own methods, but it bears no resemblance to Marshall’s work.

Let the ruling speak for itself:

The powers [of Congress] are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may, at any time, be passed by those intended to be restrained? … Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. . . . Does [such an act], notwithstanding its invalidity, bind the courts, and oblige them to give it effect? . . . 

If two laws conflict with each other, the courts must decide on the operation of each. So if a law is in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of the conflicting rules governs the case.

Exclaiming against the idea that the Constitution should not control the courts in such situations, Marshall gave several examples of the absurdities that would result. Such as: “The constitution declares that ‘no bill of attainder or ex post facto law shall be passed.’ If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve?” Then he concluded:

It is not entirely unworthy of observation, that in declaring what shall be the supreme law of the land [Article VI], the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

The logic of Marshall’s elegant opinion is so clear as to be self-evident. What can one say to it? “Well, duh!” And he was no daring pioneer in making his argument. Berger writes that in the Constitutional Convention in 1787, James Madison himself had said “a law violating a constitution established by the people themselves, would be considered by the judges as null and void,” and during debate on the Bill of Rights in 1789 Madison said the “independent tribunals of justice . . . will be naturally led to resist every encroachment” upon those rights—rights expressly asserted against acts of Congress. Statements supporting judicial review as a check on legislative power were made in the 1787 convention by 17 of its members comprising, by constitutional historian Edward Corwin’s count, fully three-quarters of the convention’s leaders. And more such statements were made during the ratification debates, by Marshall himself in the Virginia ratification convention, and by others elsewhere, including New York’s Alexander Hamilton in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the mediums of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. … Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

That’s the same argument Marshall would later make in Marbury. As historian Bernard Schwartz observes, Marbury “merely confirmed a doctrine that was part of the legal tradition of the time, derived from both the colonial and Revolutionary experience.” Marbury thus conforms to the intention of the framers and is, therefore, not an activist decision.

What about McCulloch v. Maryland, the other great opinion upon which Marshall’s reputation rests? Here is where Marshall and Madison parted ways. The question Marbury raised and answered may have been a no-brainer, but the question raised by McCulloch presents a thornier problem. Article I, Section 8 gives Congress a list of enumerated powers, at the end of which is the power “to make all Laws which shall be necessary and proper” for carrying those powers into execution. What, exactly, does that last clause mean?

Marshall’s most famous words come from McCulloch: “We must never forget that it is a constitution we are expounding, . . . a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Accordingly, Marshall thought the framers intended the “necessary and proper” clause to give Congress (not the courts, obviously) an ample choice of means for executing its enumerated powers. His critics, dubbed “strict constructionists,” thought the framers intended that it be interpreted more narrowly.

The point to remember is that both sides held that their interpretation reflected the Constitution’s original, true, intended meaning. What today’s judicial activists ignore is that while Marshall and the “strict constructionists” disagreed about what that true meaning is, neither he nor they thought it can be changed by a judicial opinion.

Marshall summed up his rule for interpreting the “necessary and proper” clause this way:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

That struck Madison as all wrong. In a letter to Virginia jurist and outspoken Marshall critic Spencer Roane, Madison condemned such a “latitudinary mode of expounding the Constitution,” He conceded that “difficulties and differences of opinion might occasionally arise” in expounding the Constitution’s terms and phrases. “But it was anticipated, I believe, by few if any of the friends of the Constitution, that a rule of construction would be introduced, as broad and as pliant as what has occurred.”  An avowal during the ratification debates of the rule Marshall was to spell out in McCulloch, Madison thought, would have caused the Constitution’s defeat.

Madison added:

It has been the misfortune, if not the reproach of other nations, that their Governments have not been freely and deliberately established by themselves. It has been the boast of ours that such has been its source, and that [our Constitution] can be altered by the same authority only which established it [i.e., by “We the People”]. It is a further boast that a regular mode of making proper alterations, has been providently inserted in the Constitution itself. It is anxiously to be wished therefore that no innovations may take place in other modes; one of which would be a constructive assumption of powers never meant to be granted. If the powers granted be deficient, the legitimate source of additional ones is always open, and ought to be resorted to.

So Marshall stood accused of altering the Constitution in the guise of interpretation. What few if any of his latter-day activist admirers realize is that Marshall didn’t shrug off the accusation. He vehemently denied it. In response to a newspaper campaign against McCulloch waged by Roane and others, Marshall wrote a series of newspaper articles of his own, signing them “A Friend to the Union” and “A Friend of the Constitution.” In them, he declared that the “intended to endure for ages” passage “does not contain the most distant allusion to any extension by construction of the powers of Congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution. . . . The [Supreme Court’s] power of deciding, in a last resort, all questions ‘arising under the constitution and laws’ of the United States . . . cannot be the assertion of a right to change that instrument.”

Marshall’s defense of McCulloch v. Maryland was lost to history until rediscovered by Stanford Law Professor Gerald Gunther in 1969, but his rejection of judicial activism has been evident all along. From the bench, he held “that the intention of the instrument must prevail; that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them nor contemplated by its framers” (Ogden v. Saunders, 1827).

In modern terms, then, Marshall himself was a “strict constructionist.” And in Gibbons v. Ogden (1824), he said as much: “What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle.”

“Judicial power, as contradistinguished from the power of the laws, has no existence,” Marshall wrote. “Courts are the mere instruments of the law, and can will nothing. . . . Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law” (Osborn v. Bank of the United States, 1824).

Berger sums it all up:

Commentators at a loss to justify judicial arrogations fall back on Marshall’s sonorous reference to a “constitution intended to endure for ages to come.” In an oft-quoted apostrophe, Justice Frankfurter declared that it “expressed the core of [Marshall’s] constitutional philosophy . . . the single most important utterance in the literature of constitutional law.” It has become a mythic incantation. . . . Slender as was the justification for invocation of Marshall’s dictum prior to Gerald Gunther’s discovery of Marshall’s Defense, it has been shattered altogether by Marshall’s categorical disclaimer of judicial “right to change that instrument.” . . . The evidence, I submit, calls for an end to the incantatory reliance on Marshall’s “a Constitution . . . to be adapted to the various crises of human affairs.” If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.

The reason any of this matters today is that modern judicial activism has greatly empowered itself by its appropriation of Marshall’s mantle. Sometimes the activists’ results have been good, but mostly they’ve been bad, and often they’ve been disastrous. Left unchallenged, their toll in innocent lives will continue indefinitely into the future.

Further, as a general principle of jurisprudence, both Madison and Marshall agreed that judicial activism is entirely illegitimate. In the words of a man who outranks even Madison and Marshall:

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. . . . If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

 

2016 Election • Center for American Greatness • Conservatives • Deep State • Democrats • Donald Trump • Government Reform • Law and Order • Obama • Post • Progressivism • Republicans • Russia • separation of powers • The Constitution • The Courts • The Resistance (Snicker)

Thoughts on ‘Unfettered Power’

Where to start? The phrase “unfettered power,” to which I will return, may put you in mind of Lord Acton’s famous observation that “power corrupts, and absolute power corrupts absolutely.” But the context of Acton’s mot was grand politics. “Great men,” he went on to say, “are almost always bad men.”

What we see in the present case—the case of the hall-of-mirrors, matryoshka-doll-like investigation tirelessly pursued by Robert Mueller and his band of merry Democratic prosecutors—is not grand but shabby.

In just a week, we will have reached the first anniversary of what threatens to be an interminable investigation of—what? It’s hard to keep track. Is it charges dating back to 2005 of bank fraud against Paul Manafort, who was briefly Donald Trump’s campaign manager? Or does it have to do with a taxi business in which Donald Trump’s personal lawyer, Michael Cohen, is involved? It’s hard to say.

Mission Creep
Robert Mueller’s 
original marching orders authorized him to look into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” That was the main thing. Acting Attorney General (as he was then) Rod Rosenstein also added that Mueller was authorized to investigate “any matters that arose or may arise [my emphasis] directly from the investigation” as well as “any other matters within the scope” of the governing statute.

That was last May. In August, Rosenstein issued another memo. I would like to tell you what it says, but can only give you the most general sense because, in the version released to the public, most of it is blacked out—“redacted,” to use the term of art that has replaced “collusion” as the political word du jour. Someday I hope to see a communication from the Justice Department or our intelligence services that is 100 percent redacted. The memo was released, just not the words on the memo.

Freudians like to talk about “analysis terminable and interminable.” I suppose Mueller’s ever-expanding probe would fall into the latter category. Some people think it will proceed for as long as Donald Trump is president, maybe longer, since for our permanent bureaucracy Republican presidents are by definition illegitimate.

In 1968, Richard Nixon’s election was illegitimate because it was said that Nixon had colluded with contacts in South Vietnam to delay peace talks until after the election. In 1972, there was Watergate. In 1980, Ronald Reagan’s election was illegitimate because it was said that his campaign had access to Jimmy Carter’s debate preparation notes. In 1988, George H. W. Bush’s election was illegitimate because he used anti-crime ads against Michael Dukakis. In 2000, George W. Bush’s election was illegitimate because of the U.S. Supreme Court decision in his favor. In 2004, W.’s reelection was illegitimate because of the “Swift Boat” ads taken out against John Kerry. And of course, Donald Trump’s election was illegitimate because his good friend Vladimir Putin put him into office by—well, I’m not sure exactly what Putin, or what “the Russians,” are really supposed to have done, but Trump cannot be president. You can “take it to the bank,” said Nancy Pelosi, “he will never be president”—so that is that.

Dramatis Personae 
If I digress, it is because this updated version of 
The Mousetrap is a bewildering thriller with a seemingly endless cast of characters (also an apparently bottomless, or at least undisclosed, budget).

Just last week, James Baker, chief legal counsel for the FBI (also James Comey’s best friend), suddenly quit, as did Lisa “love bird” Page (not to be confused with Page, Carter). Why? Are they keeping one step ahead of the next course of Michael Horowitz’s inspector general’s report? Horowitz’s last bombshell led to the firing and criminal referral of Andrew McCabe. Really, you should keep a list of the dramatis personae of this farce: playing the King is Robert Mueller, of course, but who is Bruce Ohr? Who is his wife Nellie? Why was she working for Fusion GPS, which leads us to Glenn Simpson and Christopher “Dossier” Steele. Where is Peter Strzok? How does John Brennan, former head of the CIA fit in, or former Director of National Intelligence James Clapper, now under contract at CNN? Then there is James “higher loyalty” Comey who wishes he were still director of the FBI but is happy to be pushing his best-selling book instead. And let’s not forget Susan Rice and Samantha Power and Sally Yates, and, oh! so many others.

Rule of Law? Who Needs That?
The thing to keep in mind is that we would never have heard of most of these people, and those we had heard of we soon would forget if only the universe had behaved as expected and elected Hillary Clinton.

We would not be talking about illegitimately obtained FISA warrants. Neither Paul Manafort nor his pal Richard Gates would have been indicted, nor would George Papadopoulos, Michael Flynn, that baker’s dozen of Russians that Robert Mueller indicted just for show a couple months back or Michael Cohen. What an entertainment the world would have lost!

Good theater though it is, however, there are one or two other considerations that press upon the public’s attention. One is that hoary old idea of checks and balances. Back in the antique days before the progressive establishment achieved maximum virtue and was able to dispense with such atavistic appurtenances as the Constitution and the rule of law, many people worried about individuals or institutions accumulating too much power, especially when that power was not subject to effective oversight and control. We’ve passed beyond all that now, or nearly.

There are one or two holdouts. One conspicuous redoubt is Judge T. S. Ellis III who had some interesting things to say when Robert Mueller’s merry men came before him the other day to press their case against Paul Manafort.

“You don’t really care about Mr. Manafort’s bank fraud,” Judge Ellis said. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”

Bingo.

Singing . . . and Composing
Judge Ellis continued with a relevant musical metaphor. Manafort was of interest to Robert Mueller—of such interest that he and his wife were subjected to a pre-dawn, guns-drawn raid, you know the sort of stuff you see on television when there are terrorists or drug kingpins involved—not for himself, not for a 2005 bank fraud case for which, 
according to some reports, he has already been investigated with no charges being brought.

No, Paul Manafort, like so many other people charged by Robert Mueller, is caught up by the awesome, grinding power of the American legal machine in order to illustrate that great Archimedean principle, leverage.

As Judge Ellis neatly put it, the hope is that by putting pressure on Paul Manafort, Robert Mueller will be able to induce him to “sing” about Donald Trump. The problem is, Judge Ellis noted, that often people so pressured “may not just sing. They may also compose,” i.e., make things up.

The crux of Judge Ellis’s repartee with Robert Mueller’s thugs, er, prosecutors revolved around the legitimate exercise of power. His remarks have been quoted in dozens of columns. They deserve to be quoted in dozens, if not hundreds, more.

“What we don’t want in this country is we don’t want anyone with unfettered power,” Ellis said. “We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.”

Oh, but we don’t have unfettered power, rejoined the prosecutors. Our investigation is limited by orders from Deputy Attorney General Rod Rosenstein, his original May 2017 order, supplemented by our discussions with him (which we are not doing to tell you about) and a clarifying order he issued on August 2, 2017, three-quarters of which is redacted and we can’t tell you about that, either.

Nice work if you can get it. Judge Ellis seems to be doing his best to be sure that they don’t get it. His summary: “We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter.”

Where will this end? I do not know. But I am alternately heartened and depressed by what has happened in this last week or so. Depressed by the ongoing spectacle of what is (for all intents and purposes) unfettered power being deployed to unseat a freely elected president—for that, ultimately, is what this juggernaut is all about—but heartened by some glimmers of judicial awareness and mounting public revulsion against this out-of-control effort to cover up the greatest political scandal in the history of the United States—the effort by one administration to sabotage the candidacy and then the presidency of a rival.

Were I to risk a wager, I’d suggest that the chief casualty of this absurd witch hunt is going to be the reputation of the FBI and the Department of Justice. Doubtless there will be collateral damage. But never again will Robert Mueller be entrusted to investigate anything more pressing than why his bathroom drain is clogged. That thought is a day-brightener.

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Congress • Conservatives • Donald Trump • Elections • Law and Order • Post • Republicans • separation of powers • The Constitution • Trump White House

House Freedom Caucus: Don’t Trivialize Impeachment

House Freedom Caucus members have prepared articles of impeachment against Deputy Attorney General Rod Rosenstein. The reasoning behind this absurd tactic? They don’t like the way he is doing his job.

Impeachment was one of the most hotly debated topics at the Constitutional Convention in Philadelphia, and its inclusion in the Constitution was carefully crafted by the Framers after serious consideration and discussion.

Section 4 of Article II states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

Members of the Freedom Caucus claim to be “constitutional conservatives” who believe in, among other things, the rule of law. Might I suggest that before they proceed further with this embarrassing exercise that they carefully review the Constitution, and the volumes of commentary that have been written about it, including very thorough discussion by one Alexander Hamilton in Federalist 65 about what the founders had in mind.

The Freedom Caucus is irritated over Rosenstein’s failure, in a timely manner, to provide documents the Congress has requested in relation to Special Prosecutor Robert Mueller’s investigation into Russian collusion by the Trump Administration and the department’s investigation into Hillary Clinton’s emails.

You do have to wonder how serious these members of Congress are about all of this. Press reports indicate that they have no intention of actually moving forward with their impeachment effort, but are just using the draft articles as a “warning shot” to the Department of Justice.

Since the Constitution was ratified nearly 230 years ago, 19 federal officials have been impeached by the House of Representatives, and only eight of those—all federal judges—convicted by the Senate and rem0ved from office. Charges against them included tax evasion, perjury, bribery and, in one case, supporting the Confederacy. Two presidents—Andrew Johnson and Bill Clinton—have been impeached by the House, but neither was convicted by the Senate. Only one member of the Executive Branch—in 1876—has ever been impeached by the House of Representatives, and even he was acquitted by the Senate.

The Constitution’s framers realized that impeachment would always be a matter of politics rather than a matter of law, which was why they provided that they be adjudicated by the Congress—a political body—rather than by the courts. They also knew that removing a federal official from office by the impeachment process would be enormously disruptive to the country, which was why they reserved the process for the most serious offenses, namely treason, bribery, and other high crimes and misdemeanors. By requiring a two-thirds vote for conviction in the Senate, they assured that only offenses so serious that they crossed partisan lines would reach the threshold of conviction.

Alexander Hamilton stressed that impeachment was not designed for the punishment of the offender, or for a punitive purpose, but as a way of protecting the public from future behavior predictable by a pattern of misbehavior.

Nor was impeachment perceived as a substitute for elections, which the Founders believed to be the best remedy for misbehavior or failure of government officials to do their job adequately while in office.

I find very little with which I can agree in the opinions of Rep. Adam Schiff (D-Calif.). But he got it exactly right in his recent piece for the New York Times, where he wrote: “Impeachment and removal for federal officials is an extraordinarily rare event . . . an extraordinary remedy, not to be entertained lightly . . . It is instead a remedy that must be considered soberly, mindful of the fact that removing a president from office should be the recourse for only the most serious transgressions.” The same standard, I might add, must be applied to any other applicable public official.

The Freedom Caucus would be well advised, in this rare instance anyway, to take their colleague Adam Schiff’s advice.

The Freedom Caucus’ threat to file articles of impeachment against Rosenstein trivializes the importance of the seldom-used process and could even backfire. These congressmen know full well that there is no chance—zero—that the House would proceed to conduct impeachment proceedings. Threats that we do not intend to advance rarely change any behavior.

So, we can assume that Rosenstein, as he indicated subsequent to the impeachment threat, is not in the least bit intimidated and will continue to do his job in the manner he sees appropriate.

And backfire? Like perhaps encouraging the impeachment of Trump? Don’t forget the conventional wisdom:

There was a young lady of Niger
Who smiled as she rode on a tiger;
They returned from the ride
With the lady inside,
And a smile on the face of the tiger.

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2016 Election • Administrative State • Donald Trump • Law and Order • Post • Russia • separation of powers • The Constitution • The Courts • the Presidency • The Resistance (Snicker) • Trump White House

Mr. President: Talk to Mueller Now, or Plead the Fifth Later

The long negotiations between Donald Trump’s legal team and the gaggle of professional witch-hunters employed by Special Counsel Robert Mueller may yet produce a formula by which the president could sit down for a voluntary interview. Increasingly, however, this seems doubtful, as the hostility between the two camps grows, and as Trump’s poll numbers rise even as he castigates Mueller.

Therefore, we must take seriously the possibility that Mueller will try to subpoena the president and force him to testify. Does Mueller honestly believe that he would obtain valuable information from such an interview? That’s doubtful. Nevertheless, he could raise the stakes and increase the pressure and scrutiny on the president. Given Mueller’s modus operandi, this may well be the path he follows.

A Question for the Court
A subpoena presumably would be contested by the president’s lawyers, and it is hard to imagine that such a dispute would not be litigated all the way to the Supreme Court. This would take months, if not years, and all the while the Left would claim the president was “obstructing justice.”

Whether the president ultimately is forced to testify or not, the political script would be written for the foreseeable future, and it would be more of the same: a nation divided, a political system whose very legitimacy is in question, and an administration under siege. Probably, Democrats would be pleased with this scenario. Mueller might also view it as a “win,” since, even if the president was never impeached and removed from office, he would still be hobbled and embarrassed.

If the president is compelled to testify, he could answer the special prosecutor’s questions, or he could “plead the Fifth,” asserting his constitutional right not to incriminate himself. Historically, this is something politicians have been hesitant to do, since pleading the Fifth conveys the impression of guilt. In President Trump’s case, however, such a decision could be explained as a form of protest against a rogue prosecutor, who has demonstrated that he is biased, ruthless, and more than willing to press charges on any pretext. Not answering Mueller’s questions could be seen as noble, therefore, or at the very least as common sense.

A Preemptive Strike?
From another perspective, the president might wish to volunteer to sit for an interview, after all. Arguably, what the president says in any potential interview, unless it is monstrously imprudent (“Sure, I colluded, and I enjoyed every minute of it”) is irrelevant to the outcome of the proceedings.

I say this because ultimately the president’s fate will be decided by political factors rather than legal ones. The reality is Trump won’t be removed from office without the concurrence of a very large percentage of Republicans in Congress, especially in the Senate. But Republican voters are steadfastly opposed to impeaching Trump, and show no sign of turning on him. Unless Trump’s interview were to change those facts, whatever Mueller discovered would be of little consequence.

To be sure, Mueller will issue a report indicating that the president is likely guilty of a variety of crimes. This much has been obvious for a while. To be sure, most Democrats will believe that the charges are true. At this stage, however, it seems highly unlikely that Republicans will believe it, and that is what counts.

My advice to President Trump, therefore, would be to sit down with Mueller and answer as few of his questions as possible, and with the utmost vagueness. “I don’t recall” should be Trump’s constant refrain. He should also rely heavily on his lawyers in crafting his answers. The upside of this approach will be that, absent a long court battle over any subpoena, the Mueller inquiry will end sooner rather than later, and Mueller’s report, although it will be seized upon by Democrats as a vindication of their conspiracy theories, will not produce impeachment, much less the removal of President Trump from office. The country can then move on.

If, however, the president’s legal team views it as more expedient to refuse to submit to a voluntary interview, then any forthcoming subpoena should be fought tooth and nail all the way to the Supreme Court. This is partly to defend the integrity of the presidency itself, which otherwise could be made captive to frivolous litigation.

Specious Criminal Claims
If the subpoena ultimately is upheld, Trump should plead the Fifth. He should do so because, by that time, Democrats may well have taken control of the House, and the elevation of the dispute between Trump and Mueller to a matter of interest to the highest court in the land will buttress the Democrats’ specious claims that Trump’s “crimes” are on such a scale that impeachment is the only remedy. More importantly, the political pressure on Democrats in Congress from their own base to pursue impeachment will be irresistible. Given the gravity of the political dangers the president would face, answering Mr. Mueller’s questions would be foolhardy at that stage.

And that is the fundamental choice the president now faces: take his medicine now, by sitting down with Mueller for a voluntary interview, or fight the prospect of an interview, even if a subpoena is issued, and drag out the process for many months. Either the subpoena would be quashed, or an interview would ensue. Either way, there is a good chance that substantial parts of Mueller’s report are already written. An interview would simply give Mueller the opportunity to “fish” for more ammunition.

In politics, as in life, timing is everything, and so my advice to President Trump and his legal team would be to choose the first option, that of submitting to a voluntary interview, simply because it promises to end the Mueller investigation ASAP. This will mean that Mueller’s harrowing report will land in a Republican-led House Judiciary Committee that will treat it with the contempt it so richly deserves. True, there is a chance that, if Democrats eventually took the House, they would dust off the report and pursue impeachment anew, but my guess is that newly elected moderate, swing-district Democrats would balk at the prospect. And, from their narrow political perspective, wouldn’t it be better to let a wounded President continue in office, under a cloud of suspicion, so Democrats could triumph over him in 2020?

In the end, the chances that Trump’s term will be cut short are very slight. Throughout this debacle, the Left has shown no ability to convince the right that its case for collusion and obstruction of justice is compelling. On the question of Trump’s guilt, therefore, the two parties are, and likely will remain, in a stalemate—and a tie, in this case, goes to the incumbent president, who may be tarnished, but is still standing, despite herculean efforts to topple him.

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Should the Supreme Court Run U.S. Immigration Policy?

In Wednesday’s oral arguments in Trump v. Hawaii, the case involving the third version of President Trump’s “travel ban” on immigrants from certain countries, the Supreme Court tried to pin down a great deal of evasiveness about a simply worded statute, and, in the end, fundamental questions about judicial supremacy.

On September 27, President Trump issued an executive order and proclamation indefinitely suspending entry into the country from six Muslim-majority countries—Iran, Libya, Syria, Yemen, Somalia, and Chad—and two non-Muslim-majority countries—North Korea and Venezuela. The 20-page proclamation, which includes specific findings with respect to each country, has the purpose of “detecting entry into the United States by terrorists or other public-safety threats.”

Two previous versions of the proclamation had generated a great deal of public controversy, and the third was no exception. None of the three proclamations have included the words “Muslim” or “religion,” but, nevertheless, all have been extensively portrayed as being motivated by the president’s alleged antagonism to Muslims. And federal district and appeals courts have not hesitated to add fuel to that fire. For example, the federal district court in Hawaii ruled that the second order “was issued with a purpose to disfavor Muslims.” This week’s oral arguments came to the Supreme Court from the decision of the Ninth U.S. Circuit Court of Appeals, which imposed a “worldwide” injunction against enforcing the president’s order and proclamation.

President Trump issued the proclamation pursuant to a provision, 8 U.S.C. 1182(f), entitled “Suspension of entry or imposition of restrictions by President,” of the Immigration and Nationality Act (INA) that by its explicit terms bestows an extraordinary degree of executive power on the president to deal with national-security and foreign-policy emergencies and exigencies involving immigration:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. (emphases added)

In defense of the proclamation, Solicitor General Noel Francisco opened his argument yesterday by pointing to the law and stating “the proclamation reflects a policy and national security judgment that falls well within the president’s power under 1182(f) and has been successful, which is why the country of Chad has been dropped from the list.” Justices Ruth Bader Ginsburg and Sonia Sotomayor pointed out that Congress had written sections of the INA listing specific rationales for excluding aliens and also allowing certain waivers to exclusion. But, like the Ninth Circuit in its decision, neither justice seemed willing to concede that Congress had also written section 1182(f) granting the power to the president to protect “the interests of the United States” as “he may deem to be appropriate.”

Francisco downplayed the full extent of the power granted to the president by section 1182(f). Instead, he repeatedly emphasized that the secretary of Homeland Security had recommended the proclamation to the president after a “worldwide multi-agency review applying neutral standards.” As for Trump’s campaign statements about Muslims, Francisco, replied that a politician is a private citizen before he takes office and that the only statements after the oath of office is taken are “constitutionally significant acts.” He argued that any such statements by President Trump do not “address the meaning of the proclamation itself,” which “excludes the vast majority of the Muslim world” and “omits Muslim-majority countries that were covered by past Orders.”

Neal Katyal, an Indian immigrant, specialist in immigration law, and a private lawyer at a Washington law firm, spoke for the state of Hawaii. He argued essentially that Congress, in enacting the INA, had already considered the issues presented in the proclamation and chosen to address those issues by establishing an immigration system whereby potentially dangerous aliens had to go through an “individualized vetting process,” with the result that there could be no bans on admission into the country based “on nationality discrimination.” The president, he said, had violated the separation of powers and contravened these legislative decisions of the Congress.

Throughout his presentation, Katyal more or less denied the plain words of section 1182(f) which empower the president to act about “any class” of aliens. He wanted to take up the argument that President Trump intended to discriminate against the Muslim religion in violation of the Establishment Clause, but the justices never allowed him to develop that position. The Ninth Circuit had heard extensive arguments on the Establishment Clause issue but had declined to rule on it.

Chief Justice John Roberts repeatedly challenged Katyal as to when and how a president could act in an emergency in the field of immigration law if section 1182(f) did not allow him to do so. And Justice Anthony Kennedy followed that inquiry up by asking whether it is the province of the courts “to review whether or not there is such a national contingency” about immigration. Katyal’s answer was that potentially dangerous aliens seeking admittance should be “individually vetted,” and if that does not prove feasible on a large scale, to go back to the Congress with proposed legislative changes.

Justice Samuel Alito asked “whether any reasonable observer reading this proclamation” could “think this was a Muslim ban?” He said that there are 50 Muslim countries in the world but only “five predominantly Muslim countries are on this list.” Justice Neil Gorsuch wondered how and why a lower federal court could issue “a cosmic injunction” in the area of immigration and why domestic third parties should be allowed “to assert the rights of aliens who are not present in this country.”

In his rebuttal, Francisco clarified what the law has to say about the supposed “ban on nationality discrimination.” He flatly stated that there is no such thing. A certain provision of the INA, 8 U.S.C. 1152(a)(1) bans discrimination concerning “the issuance of immigrant visas,” he said. “It doesn’t address the broader question over whether somebody is allowed to enter in the first place.”

Indeed, Francisco could have elaborated that a “visa” is a temporary pass to enter the country. It does not allow a person to become a permanent resident. And it is issued only after the approval of a petition, which is subject to other provisions of the INA like section 1182(f), by a family member or other legal sponsor.

Katyal eventually conceded that he “could imagine an emergency situation” in which section 1182(f) would allow the president extra powers, but he repeatedly argued that in this case it had been “460 days” since President Trump had issued the proclamation, and that no emergency had occurred. Overall, then, the state of Hawaii has proclaimed that it knows and will define the criteria for, and length of, a foreign-policy emergency and that the Supreme Court should do the same.

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Administrative State • America • Americanism • Center for American Greatness • Immigration • Law and Order • Post • self-government • separation of powers • The Constitution • The Courts • the Presidency • Trump White House

Justice Thomas Asks: Do Aliens Enjoy Constitutional Protections?

The controversy last week over Justice Neil Gorsuch joining a liberal majority in declaring unconstitutional an immigration statute supported by the Trump Administration  overshadowed Justice Clarence Thomas’s provocative dissent in the case. “Until today],” wrote Thomas, “this Court has never held that an immigration statute is unconstitutionally vague.”

In fact, Gorsuch and Thomas ruled in different ways on the result in Sessions v. Dimaya because they both aimed at constraining arbitrary power and, ultimately, the administrative state.

Gorsuch maintained that he was following the reasoning of the justice he replaced, the late Antonin Scalia, who had used the Fifth Amendment due process clause to nullify a law on grounds of its alleged vagueness about what a “violent felony” is. The Fifth Amendment reads “no person shall … be deprived of life, liberty, or property, without due process of law.” But Thomas is hunting even bigger game—not only the judiciary’s abuse of the due process clause through arbitrary interpretation (e.g., Roe v Wade) but how originalist jurisprudence should argue about immigration and the rights of aliens.

Thomas’s opinion in fact reflects the founders’ view that only citizens who form part of the consenting social contract are fully protected by the nation’s laws. For this reason, “the Court upheld vague standards in immigration laws that it likely would not have tolerated in criminal statutes.” Indeed, “it was, at best, unclear whether federal removal statutes could violate the Due Process Clause.” Dimaya marks the first time “vagueness” has been used to void a federal removal statute.

Thomas then provides some intriguing details from the early federal attempts to regulate immigration and alien rights, culminating in the notorious Alien and Sedition Acts. In the 1790s, Thomas Jefferson opposed these laws. But he did so less as a friend of liberty than as a protector of slavery: he feared that expanded federal power would inevitably permit federal power over slavery. Thomas quotes in support Walter Berns: “Whether pro- or anti-slavery, most southerners, including Jefferson and Madison . . . were united behind a policy of denying to the national government any competence to deal with the question of slavery” in the states.  Thus, as has been said, the Civil War was Thomas Jefferson arguing with himself, as author of the Declaration of Independence (“all men are created equal”) and as author of the Kentucky Resolutions (state sovereignty—to protect slavery).

In support of the Alien Friends Act, first, “the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution.” And the “law of nations imposed no enforceable limits on a nation’s power to remove aliens”—which is consistent with the natural law notion that only those who participate in the social contract have full rights under it.

Second, the law did not threaten fundamental citizen rights to “life, liberty, and property.” The Federalist argument was that “‘privileges’ or ‘franchises’ bestowed by the government on individuals … did not qualify and could be taken away without judicial process.” Aliens may have a legally granted privilege to reside in America but the executive could revoke it. “After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century.”

Only in 1950 did the Supreme Court find due process violations in non-penal removal statutes. “But the Court upheld vague standards in immigration laws that it likely would not have tolerated in criminal statutes,” Thomas writes. While Progressive racial theories may well have had influence here, I would emphasize as well the abiding force of founding social contract views: Laws governing citizens should be held to higher standards than those over aliens. In fact, “it was at best, unclear whether federal removal statutes could violate the Due Process Clause.” I would add to these cases, as Thomas does not, the ethnic Japanese exclusion cases of World War II.

Thomas finds the reason for the court’s change in his adoption of post-Dred Scott substantive due process assertions, which empowered the judiciary to overturn laws, often arbitrarily. One of its traditional tools to advance the due process innovation was the vagueness test. He argues that “perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically the doctrine of nondelegation.” But this would make the vagueness objection an application of the Constitution’s vesting authority, its separation of powers, not the due process clause. If we take the founders’ adaptation of Blackstone seriously, “the executive Power” includes the power to deport aliens.

It is sad that Justices Kennedy and Alito did not join Thomas in this historical section of his dissent. Even worse, Gorsuch, while not going as far as the Kagan plurality, dismisses Thomas’s use of the American Founding.  

But the Alien Friends Act—better known as the “Alien” part of the Alien and Sedition Acts—is one of the most notorious laws in our country’s history…. Yet even then it was widely condemned as unconstitutional by Madison and many others. It also went unenforced, may have cost the Federalist Party its existence, and lapsed a mere two years after its enactment. With this fuller view, it seems doubtful the Act tells us a great deal about aliens’ due process rights at the founding.

These inapposite comments—which I hope are the worst lines he ever writes in his career—in turn raise an even more fundamental worry about Gorsuch. Is he basing this decision on underlying “new natural law” principles, which are not so friendly to borders?

It is clear that Thomas argues on immigration in the context of the founders,’ old, social contract natural law, as he does generally. Thus, while being an ally with Thomas on the administrative state,  Gorsuch may dissent from President Trump on other immigration issues besides this decision, which he characterizes by its “narrowness.”

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2016 Election • Administrative State • America • Center for American Greatness • Deep State • Donald Trump • GOPe • Law and Order • Political Parties • Post • self-government • separation of powers • statesmanship • The Constitution • The Media • The Resistance (Snicker)

Respect Unearned

Washington’s self-righteous establishmentarians talk of professionalism when they act unprofessionally. They refer at length to their intellectual and professional pedigrees when they prove incompetent. And they cite their morality and ethics when they possess neither.

And then, adding insult to injury, when the public expresses abhorrence at their behavior, they accuse critics of unprofessionalism, a lack of patriotism, or reckless demagoguery.  

A James Clapper can lie to Congress under oath about intelligence surveillance of U.S. citizens; a John Brennan can lie about CIA monitoring of U.S. Senate computers, or mislead Congress about the absence of any collateral damage in the use of drones. Yet we are supposed to give both further credence based on their emeriti titles or to believe their current Captain Renault-like outrage over President Trump’s lack of presidential decorum? But what in their past has earned them the moral high ground? Claiming that the Muslim Brotherhood in Egypt was largely “secular,” or redefining jihad as “a holy struggle, a legitimate tenet of Islam”?

Are we supposed to believe that Robert Mueller did not overreach by spinning off an investigation of Trump consigliere and lawyer Michael Cohen?

Why? Because we are also told that a regional federal prosecutor would have to have had good cause to order raids on Cohen? Because a federal judge would have had to have seen such credible evidence before anyone dared enter Cohen’s office and residence? Because another federal justice believes it is in the national interest that we know Michael Cohen knows Sean Hannity?

Once Bitten, Twice Shy
Trust in the Obama-era directorships of the Justice Department, FBI, and, indeed, the federal courts themselves are now horses that have long ago left the proverbial judicial barn. Should the public also believe that no sober and judicious FISA court judge would ever have approved surveillance of American citizens without asking where the evidence came from, who compiled it, who, if any, paid for it, or had a vested interest in seeing it used for a warrant? Should the public believe that its FBI director, and various deputy attorney generals, would never have dared keep from a FISA court information about their own submitted evidence?

The public is sorry, but once bitten, twice shy. The Humpty Dumpty federal FISA court process and the FBI credibility shattered in 2016 will not so easily be reconfigured.

We are told that Special Counsel Robert Mueller is variously a war hero, a patriot, a professional, and one whose reputation is beyond reproach. Again, perhaps. But because establishmentarians assert all that does not necessarily mean that Mueller acted ethically in prior cases, such as the Whitey Bulger investigation or the Anthrax misadventure or in the abandoned Clinton Uranium One matter.

Mueller had unlimited choices in staffing his legal team to avoid not just a conflict of interest, but even the appearance of a conflict of interest in a politically divided nation. Did Mueller think that his reputation was so unimpeachable or his emeritus FBI status was so exalted that he need not have worried about diversity—lawyers who in their past were not attorneys for those involved in the Clinton-related scandals, or who had not donated to the Clinton campaign, or who were not intimates from his own law firm?

Are we not supposed to question why Mueller’s focuses have descended from his mandate of collusion to leaked news of upending but never actualized obstruction of justice charges, to supposed lying and now to Stormy Daniels and Michael Cohen? Are we not to wonder why in the last year have incriminating leaks appeared almost weekly—the most recent that Cohen is a liar and can be proven not to have visited Prague—as the media has serially warned about what bombshell Mueller would drop next, usually followed by nothing much at all, but another such leak.

The Vastly Overrated James Comey
What exactly is James Comey owed by virtue of his supposed past distinguished office and service? I think most now agree—nothing at all.

Comey by his own admission has leaked at least some classified FBI notes and memos to the press to warp the administration of justice by forcing the appointment of a special prosecutor. If some regional FBI administrator had engaged in such a hare-brained scheme, Comey would have fired him and held a press conference to brag about his own integrity in dismissing a wayward underling.

If the FBI director, the national steward of investigatory ethics, leaks classified government documents with impunity, then who in the United States could be ever prosecuted again for such a crime?

Comey has misled a federal FISA court. Several of his testimonies to Congress about the timelines of his Clinton report, or his care not to leak FBI investigations are probably false. More falsehoods will appear when his memoir is collated with his voluminous testimonies. Either Comey, McCabe, or Loretta Lynch is lying, or in fact, all three are doing so. Comey previously testified that the Steele dossier had no credibility; on his book tour, he now winks and nods that it does.

Comey has admitted that he predicted the course of his investigation of the Clinton emails on his own perception of whether she would win or lose the election. Again, Comey would have staged a press conference to announce that he had fired any subordinate who did that, and asked a federal attorney to indict him—provided of course there was the properly correct media and political atmospherics.  

Comey oversaw an FBI, in which a number of subordinates have either resigned, been reassigned or fired, for unconscionable behavior during a national election. We know the Russians’ motives to distort our election, but we do not expect Comey, or Andrew McCabe, or Lisa Page or Peter Strzok to have had either financial conflicts of interests, to have lied to Congress, to have lied to investigators, and to have plotted to shape the course of a presidential campaign.

We know the Russians dumped dirt to Christopher Steele, and we know too that Comey himself knew that fact, and he knew it well enough not to tell a federal judge. The public would have good cause to see Comey currently indicted and facing federal felonies rather than exempt from charges and cashing in on his miscreant behavior. Comey does not grasp that by incinerating the reputation of the FBI hierarchy, it is no longer of any advantage to seek refuge in referencing his former directorship.

What Happened to Equality Under the Law?
For the next decade, the FBI, the Justice Department, and the federal judiciary will have to explain exactly why some Americans can lie to federal investigators, lie to the Congress, destroy subpoenaed evidence, leak classified documents, and face no consequences—while other Americans would have had—and have had—their lives and careers ruined for much less.

Had General David Petraeus told the FBI that his notebooks were accidentally lost, but no matter, because they simply documented his private family plans for a wedding and his own yoga regimen, would he have been indicted? The danger of the present age is not James Comey’s self-righteousness or Robert Mueller’s peculiar latest focus, but a massive distortion of the foundational principle of the United States: equality under the law. In some sense, it no longer exists.

In addition, what the FBI hierarchy did not do seems almost as worrisome as what it did. All of what James Comey is and did follows a disturbing FBI administrative culture of intelligence and preemptive investigatory failures—the Boston Marathon bombing, Fort Hood shooting, and the Orlando and San Bernardino massacres in which knowledge of suspects and their suspect activity should have led the FBI to preemptive action. While an Andrew McCabe was finessing his own conflicts of interest, while the lovesick Page and Strzok were conniving to warp an election, and while Comey was orchestrating his special counsel appointment gambit, how much other important FBI business was simply ignored?

This growing loss of confidence in a compromised justice and investigatory elite is a symptom of a larger failure of our so-called best and brightest, whether in the media, government or the university. We need to return to an older American idea that where we went to school, who wrote us recommendations, what titles we self-reference, and which grandees we know, mean little in comparison to what we actually do each day.

Self-righteousness and self-referencing become fatal when combined with incompetence and malfeasance. James Comey is our touchstone to a morally confused age.

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