Administrative State • Big Media • Center for American Greatness • Deep State • Democrats • Donald Trump • Law and Order • Mueller-Russia Witch Hunt • Post • The Constitution • The Resistance (Snicker)

Still Dreaming of Watergate II

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From left, Carl Bernstein, William Cohen, Bob Woodward, and John Dean talk at the Watergate complex on the 40th anniversary of the Watergate break-in.

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Of all the asinine and, at times, almost psychotic misstatements about the bone-crushing victory the president has won, the prize goes, with admirable historical symmetry, to John Dean.

It was Dean who led the destruction of lawyer-client privilege in the Watergate debacle, and with it, of much of America’s claim to be a society of laws. Having been the corrupt source of many of the most fatuous illegalities in the amateur obstruction put forward by members of President Richard Nixon’s entourage, John Dean was the first rat down the hawser, denouncing his client, employer, and benefactor with contemptuous disregard for the truth and in the supreme demonstration of the evil of the American plea bargain system.

This perversion of the justice system, more than anything else, has ensured that prosecutors in the United States, win a percentage of their cases about equal to those of North Korea and Cuba. They extort inculpatory evidence against the main target by threatening witnesses and give the denunciators immunity from perjury and a sweetheart sentence.

Dean’s performance exceeds in venality even the antics of Bob Woodward and Carl Bernstein, American history’s most successful fiction-writers. (At least Gore Vidal acknowledged he was writing historical novels.) Odious though Woodward and Bernstein are, irritatingly imperishable though they are, as far as I know they didn’t break any laws and didn’t dishonor a learned profession. (Having employed thousands of journalists for decades, I can attest that they aren’t part of a profession and few of them are learned.)

With that preamble to remind us of what we are dealing with in John Dean, I cite his tweet on Friday night at 11:55, after news broke that Special Counsel Robert Mueller had given Attorney General William Barr his report and that he would recommend no more indictments: “Trump and his minions think they dodged a bullet. I have a notion—that Mueller delivered a bomb to AG Barr, who is now trying to figure out how to tell Trump in a way that doesn’t cause him to start World War III. Barr knows he works for a psycho.”

Thus are we reminded of the prescience and integrity of one of the sleaziest characters in American political history, the Michael Avenatti of his times, though thanks to the president he betrayed and traduced, he achieved an ostensibly serious position.

Democrats Vying to Embarrass Themselves
Others who inflict upon themselves more often than I do the cruel punishment of looking at the more egregiously bigoted news outlets are already presenting delicious examples of malicious and dishonest idiocy among the apostles of the Russian collusion fraud.

I cannot resist offering, however,  the two stupidest comments I heard from the bloated dunciad of Democratic presidential candidates. Naturally, the grand prize goes to the vapidest person ever touted as a presidential candidate in my 63 years as an observer of American politics, Beto O’Rourke. Just before the revelation that there would be no further indictments, Beto asserted his knowledge “beyond the slightest doubt” that the president was guilty, in effect, of high treason—that he would only escape the death penalty because the United States and Russia were not at war. (But neither were they when Julius and Ethel Rosenberg were executed in 1953.) And the day Trump was completely cleared of the collusion suspicion, O’Rourke declared that the investigation of Trump must continue.

Close at Beto’s heels is the almost equally simple-minded and even more pretentious straw-haired airhead, Senator Kirsten Gillibrand (D-N.Y.). Standing in front of the Trump Hotel in Washington on Sunday, she called the president “a coward” and then Gillibrand (“I chose to be brave”) said he was still a prime suspect of collusion with Russia, 90 minutes before the release of the attorney general’s letter to the leaders of the Senate and House judiciary committees. I stop here, but not for any lack of other worthy contestants to win the sweepstakes for malice and foolishness.

In the convulsive aftermath of the sudden death of the whole impeachment fraud, the grievously outnumbered elements of the media who had kept their heads through the whole saga were severely overworked calling the witless majority of media assassins to account. The most durable and contemptible of all American media mythmakers, Carl Bernstein, claimed the role of the anti-Trump media was heroic and entirely admirable. He did so on CNN, and so was not asked by his co-defamer Brian Stelter, who although he is only 33, manages to look like he lost his hair fighting alongside Senator Da Nang Dick Blumenthal in Vietnam. Of course, Bernstein was not probingly questioned. He never has been. This mad and pandemical egotism of the Washington media is precisely the reason why this time, the almost suicidal failure of the media must be run to ground.

No Forgiveness Without Conversion
I am venerable enough to have been a publisher of small daily newspapers at the time of Watergate, and I was one of the very few who warned where the criminalization of policy differences would lead. Eventually, Richard Nixon will be seen as the troubled but courageous, talented, and irrepressible American hero and very successful president that he was, (and was always perceived to be by his scores of millions of followers). He has been short-changed in recognition of his greatness and over-penalized for his faults, but history will sort it out, as he knew. (I had the privilege of knowing him in his last five years.)

The same ghastly group-narcissism that showered media awards among the Watergate jackals flared up again, like Camus’ description of the Plague, with Pulitzers to the New York Times and Washington Post for their obscene campaigns of lies about Trump-Russian collusion. The president spoke nothing but the truth when he said on Monday: “It was an illegal take-down that failed.”

It need hardly be emphasized that the right to freedom of expression is sacrosanct, and any attempt to muzzle or intimidate the media would be anathema. Even so, as the almost certain crimes of Hillary Clinton and some of her inner circle and allies—former intelligence chiefs John Brennan (now desperately backpedaling), and James Clapper, the FBI’s own James Comey and Andrew McCabe, former Attorney General Loretta Lynch and her deputy Sally Yates, Yates’ successor Rod Rosenstein, and many lesser figures—are resurrected and charged, untainted elements of the media must conduct a process of chastisement and reinduction of their wayward colleagues. The mercy of forgiveness must await those visited by the grace of conversion, in this case to honest reporting and the separation of reporting of facts from tendentious personal opinion. (Both must be expressed, but not commingled.)

Having been the victim of the evils of the American criminal justice system, I would not have it inflicted on others. In any case, I do not believe in the incarceration of nonviolent, first-time offenders. I wouldn’t ask more than some community service for those who seriously broke the law in the 2016 election and its aftermath.

But it was an attempted coup that would never have come to light if Hillary Clinton had won. The perpetrators must be given the opportunity to atone for their crimes and expiate them, and American posterity must understand the sanctity of the constitutional process. Those who deliver great nations from terrible fates are not always people who seem to have been selected by casting studios. This president’s imperfections are not indiscernible, but he has shown himself to be a courageous and indomitable leader in excruciatingly difficult circumstances. And he is the president; those who want him out can vote against him at the next election.

Having expressed my wish for gentle sentencing, I proclaim what must now be the wish of the majority toward those who so gravely threatened the democratic republican system of American government. I am not a pious man, but so important is the proper outcome of this prolonged crisis, I am moved to cite Judeo-Christian Scripture: “God of Vengeance, God to whom vengeance belongs; show Thyself.” Then it will be time for mercy, even unto the most unworthy, who shall be nameless, such as John Dean and Carl Bernstein.

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Photo credit: Ricky Carioti/The Washington Post

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Administrative State • Congress • Deep State • Democrats • Donald Trump • Elections • Law and Order • Mueller-Russia Witch Hunt • Post • The Constitution • The Resistance (Snicker)

A Lawless Probe Comes to an End

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Attorney General Bill Barr on Sunday sent Congress a letter devastating to NeverTrumpers and Democrats alike: “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’”

Since the probe began in May 2017, Special Counsel Robert Mueller’s office issued 5.8 subpoenas per business day. Per business day, Mueller’s team dragged in a hapless American for an interrogation. At least two witnesses complained that the Mueller team pressured them to lie about the president. Mueller obtained his conviction against former National Security Advisor Michael Flynn by bankrupting him and reportedly threatening to prosecute the man’s son.

Mueller conducted a SWAT-team raid on an unarmed man’s house for the crime of allegedly lying to Congress. Mueller snatched tens of thousands of Trump emails without a warrant or prior notice to the president’s transition team. Mueller held Paul Manafort, a 69-year-old man, in prolonged solitary confinement to pressure him to “flip” on Trump—a treatment some condemned as torture in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

Mueller obtained 500 search warrants. That’s 500 Americans who had their Constitutional rights to privacy set aside for this investigation. Mueller obtained 2,800 subpoenas. Have you ever had to respond to a subpoena from a criminal prosecutor? It’s like a colonoscopy minus the tenderness and romance. Mueller put 2,800 Americans through that.

Mueller’s team conducted 500 interviews. Have you ever been interrogated by a federal agent? Many of these interviews went on for hours, even days. Can you imagine the pressure and intimidation that ordinary Americans must have felt in those long hours under interrogation?

As 40 agents combed through the tax records and loan applications of the many witnesses, they uncovered skeletons and pressure points to apply towards the ever closing concentric circles of Trump’s contacts. Over and over, we heard the media gleefully announce the walls were closing in on Donald Trump. Millions of dollars in private funding worked the public relations effort to sway public opinion against the president and promote his ouster. Mainstream media coordinated with the Mueller probe to leak and undermine their target.

Somehow, justice prevailed. Mueller admitted he could not show (or coerce people to say) Donald Trump conspired with the Russians to steal the 2016 election. The lawless nightmare initiated by Hillary Clinton and her allies in the government appears now to be drawing to a close.

They are defeated in purpose but not in capacity. Within the government, clear rogues such as senior Justice Department attorney Bruce Ohr continue to have access to awesome power as his wife, Nellie, remains open to accepting a commission to use her husband’s influence to launch the next FBI investigation. Consultants for Democrats have perfected the art of simulating Russian interference to frame the next candidate as directed by the highest bidder.

The Department of Justice owes America an apology. Aside from undermining the outcome of a presidential election, we now find ourselves under a two-tier system of justice. Elites like Hillary Clinton appear untouchable. Under our politicized federal justice system, only crimes alleged to have been committed by Trump’s allies are vigorously prosecuted. It will take years before all Americans feel like they can trust the Justice Department again.

When an FBI agent requests an interview of an administration official, he may now refuse and the sympathy of all who remember the Flynn affair is likely to be with him. When a future president actually commits criminal misconduct, it will now more difficult to get people to take seriously the prospect of investigating or prosecuting him.  

The reckoning is upon us. It is time to declassify the documents held to protect the deep state agents from the embarrassment of their lawlessness. It is time to fire the Bruce Ohrs and countless other bureaucrats who abused their positions to frustrate an election. It is time to criminally prosecute the lawless Obama-era intelligence officials who abused our surveillance tools to invade the privacy of American citizens for petty politics. It is time to root out those who undermined the duly elected president by leaking confidential discussions with foreign leaders. And, at long last, it is time to fire Deputy Attorney General Rod Rosenstein, the architect of all of this.

Photo credit: iStock/Getty Images

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Administrative State • America • Congress • Deep State • Donald Trump • Law and Order • Mueller-Russia Witch Hunt • Post • The Constitution • The Media • The Resistance (Snicker)

Mueller Had No Power to Exonerate, Only to Accuse

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Mitt Romney, the former candidate for president who struggled to get out from under the shadow of his pick for vice president, Paul Ryan, posted this to his social media accounts:

The Mueller investigation, led by a person of such honor and integrity, has faithfully applied the rule of law despite accusations and fears to the contrary. It is good news that the Special Counsel has concluded that neither the President nor his campaign colluded with the Russian government. And now it is time for the country to move forward.

Move forward indeed.

It’s fair to ask, what evidence is there that Special Counsel Robert Mueller is a person of honor and integrity? Deputy Attorney General Rod Rosenstein had proposed his friend Mueller as the head of the FBI, and when Trump rejected this permanent fixture of the administrative state to succeed James Comey, Rosenstein appointed Mueller as special counsel. Not usual at all. An appearance of impropriety surrounds Mueller’s appointment. Where there’s smoke, there’s fire.

Mueller’s team of 19 prosecutors and 40 FBI agents served 2,800 subpoenas to produce nothing material to the immediate scope of his investigation, only process crimes that were never tried but pleaded to in order for those accused to avoid financial ruin, the indictment of foreigners who will never be tried, and convictions on unrelated matters designed—as the judiciary noted—to coerce testimony. None of this says integrity.

In his submission to the attorney general, Mueller had the temerity to pen these words: “this report does not conclude that the President committed a crime; it also does not exonerate him.” If Mueller were a first-year law student in criminal procedure he would receive a “D.” Prosecutors accuse. Only a trial by a jury of one’s peers “concludes” someone has committed a crime. Nor do prosecutors have the power to exonerate. Everyone in America, including a sitting president, is presumed innocent until convicted in a court of law.

That Mueller stumbled in his report and revealed that he has in his mind arrogated to himself the power of guilt and exoneration is a prima facie showing of a lack of integrity. These are the paces of papal inquisitors, not the actions of honest American prosecutors. Mueller’s contorted comprehension of the ground rules of our Anglo-Saxon system of justice, which rules are designed to jealously protect the liberties of the accused and any bystanders, is frightening.

Mueller’s weak comprehension of American justice is of the same species as the assault on citizenship that animates so much of the identity politics driving the administrative state. The political friendship of equal citizens requires that we hold one another innocent unless convicted through the process of law. The reciprocal affection needed to deliberate about the common good together, as friends in pursuit of a common object, cannot exist without it. This is not a ball that a prosecutor of integrity can fumble.

Given the lives ruined, should not Mueller’s office be investigated to discover his intention in trampling on these principles? If Mueller’s investigation lacked integrity, should not he and his prosecutors be disciplined? The integrity of our system of justice requires a close look at these questions, not only for the sake of future presidents but for the sake of anyone who might be subject to prosecutorial abuse.

Mueller’s comment on exoneration has another disturbing aspect. It is a message. The words “it also does not exonerate him” is a message to #TheResistance and NeverTrump to carry on frustrating this president.

David Frum tweeted: “No exoneration. The president remains a security risk.” Sadly we observe, the psychological condition of #TheResistance and NeverTrump is one of the people under the delusion that had they been alive in 1933 they would have stopped Hitler. This delusion is reinforced by their erratic actions opposing Trump. The more they oppose Trump, the more events convince them of their sanity. The more marginalized they become, the more confident they grow in their righteousness. They remind one of a schizophrenic who believes the television is speaking directly to him on behalf of a secret entity, except that Mueller is speaking directly to them, in French no less.

J’Accuse.

Photo credit: Tasos Katopodis/Getty Images

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Center for American Greatness • Conservatives • Harry Jaffa • Law and Order • Post • The Constitution

Making Constitutional Law Great Again

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Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa. Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant—references to Abraham Lincoln and the Declaration of Independence.

Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law.

As I explained at greater length elsewhere, conservatives are all over the map when it comes to constitutional interpretation, and spend as much time in internecine feuds as they do in battle with liberal activists. Jaffa notoriously picked fights with respected conservative legal figures such as Robert Bork and Antonin Scalia, and espoused fanciful theories that have never been embraced by mainstream originalists (and almost certainly will never be adopted by a majority of Supreme Court justices).

Not surprisingly, therefore, the Left has made consistent advances, while fractious conservatives often chase their tails. Erler persists in this futile gambit, repeating discredited nostrums and making numerous errors. Rather than advance a workable theory of constitutional law, he finds common cause with libertarians who would have unelected judges divine new “rights” in séance fashion with unwritten “natural law” serving as the ersatz crystal ball. Erler concedes that Justice Kennedy’s risible “mystery passage” from the Casey case is an inevitable consequence of this approach.

Erler’s response to my articles rests on a number of false premises. He contends that the states did not exist as separate sovereign entities prior to the Constitution (and, thus, the Constitution cannot be a compact among the states); the Declaration automatically formed the United States as a single national entity; the Declaration is central to the Constitution; and “natural law” lurks invisibly in the Constitution, waiting to be “discovered” by discerning judges. None of these contentions withstands scrutiny. For that reason, his entire analysis fails.

The Declaration served an important but limited role in the Founding. The Declaration was merely a proclamation of secession of the 13 colonies from Great Britain. As Matthew Franck pointed out in Against the Imperial Judiciary (1996), the Declaration was not a charter of government. (Scalia agreed in A Matter of Interpretation (1997), describing the Declaration as reflecting philosophical “aspirations.”) The Declaration cannot possibly be regarded as a social compact—let alone a “quintessential statement of social compact”—because it was never ratified by the states (or the people). It simply declared that the colonies would henceforth be “Free and Independent States.” The purpose of declaring independence was not to live in an anarchic “state of nature,” but to permit the former colonists to institute governments (plural) “deriving their just powers from the consent of the governed,” in order to secure their natural rights. In a civil society, positive law (statutes and constitutions) serve that purpose. The U.S. Constitution was drafted 11 years after the Declaration was signed, and fully ratified some 14 years after.

The Articles of Confederation officially created “the United States of America.The Articles of Confederation, approved by the Second Continental Congress on November 15, 1777 and ratified by all 13 states on March 1, 1781, comprised a loose federation of the states, which continued until the Constitution was drafted in 1787 and ratified by the requisite number of states (nine) in 1788. The Articles referred to the confederation as “The United States of America” but expressly stated that “each state retains its sovereignty, freedom and independence.” The Constitution was drafted because the individual states realized that the confederation created by the Articles was too weak to be effective. The states clearly existed prior to and independent of the Constitution. It is absurd to contend otherwise.

The Constitution is a “compact of the states.” The Constitution became effective, by its own terms, upon the ratification of nine states in 1788, representing three-quarters of the then-existing states. The last state to ratify the Constitution, Rhode Island, did so in 1790. In Federalist 39, Madison referred to ratification by “the distinct and independent states.” Each state, he explained, was “a sovereign body independent of all others.”

In Federalist 45, Madison assured readers that “the states will retain under the proposed Constitution a very extensive portion of active sovereignty.” Madison described the government to be formed by the proposed Constitution as dual sovereignty, constituting a “federal” rather than a “national” government. The Constitution took effect, and the federal government began to operate on behalf of the participating states, upon the ratification of the first nine states. The remaining four states joined the United States and became subject to the Constitution upon their ratification. The Bill of Rights—and in particular the 10th Amendment—was added to protect the sovereignty of the states. This is the essence of federalism—a concept that Jaffa’s disciples apparently can’t fathom.

State constitutions predated the Constitution (and in some cases the Declaration itself). Despite what the 16th president may have said, possibly for self-serving reasons, historians agree that four colonies adopted constitutions even before the Declaration was signed on July 4, 1776, and the remaining states either drafted constitutions or revised their colonial charters during the Founding period. This is confirmed by references to existing state constitutions throughout The Federalist Papers, especially the discussion in numbers 47 and 48. Denying the existence of antecedent state constitutions is bogus history, worthy of Howard Zinn, not a Claremont Institute senior fellow.

The Declaration is not central to the Constitution. The Declaration is never mentioned in the Constitution, in the 14th Amendment or otherwise, and is scarcely mentioned in The Federalist Papers. The Declaration’s author, Thomas Jefferson, was absent from Philadelphia—indeed, in Paris, serving as minister to France—during the constitutional convention. True, the Constitution was enabled by the Declaration, but inapt Biblical imagery of golden apples and silver pictures cannot alter the Constitution’s status as our ultimate positive law. Slavery was eradicated, not by treacly sentiment or pious philosophizing, but by a Civil War and constitutional amendments.

Natural law does not infuse the Constitution. If the Framers believed that “natural law” (whatever that is) was sufficient to govern their affairs, what was the point of drafting the Articles or the Constitution? Scalia described the Constitution as “a practical and pragmatic charter of government,” and so it is. Like all written laws, it is a text, the moral authority of which—the consent of the governed—depends on government officials honestly enforcing its express terms. In a system based on popular sovereignty (“we the people”), there is no room for unelected judges to impose their will in the form of imagined or desired provisions—a ruse that Erler feebly attempts to dignify with the oxymoronic labels “substantive due process and substantive equal protection rights.” Jaffa had a long-running debate over natural law with Walter Berns. Berns made the better case; natural rights exist only in nature, and are not self-enforcing. Thus, man enters into civil society and seeks the protection of laws.

Among modern legal scholars, Michael McConnell is regarded as the most meticulous and reliable student of constitutional history. He concludes that the Ninth Amendment does not serve as a font of natural rights, and that, in any event, at the time of the Founding natural rights were not understood to override positive (or written) law. If “natural law” connotes deeply-held moral sentiment, aren’t the people, or their elected representatives, the best arbiters of such matters? Unelected judges are the least reliable barometers of the community’s “conscience.”

Tellingly, Erler has nothing whatever to say about Obergefell, and lamely asserts—without explanation—that abortion rights fall outside the amorphous “ambit of the rights of conscience” that he believes lurk invisibly within the Constitution. The problem with pretending to discern such unwritten rights is that they are totally subjective, indeterminate, and susceptible to infinite manipulation and distortion—as we have frequently experienced at the hands of activist judges in recent decades. The Framers, practical men skeptical of human nature, put no stock in such dubious notions.

Due to space constraints, I refer the reader elsewhere for an explanation of why Bork, whom Erler unfairly maligns, is the most important legal thinker in the second half of the 20th century. President Reagan agreed with this assessment, which is why he wanted Bork to join Scalia—one of the greatest jurists in our nation’s history—on the High Court. Likewise, I will not repeat here the arguments (made in American Greatness and elsewhere) debunking the libertarian theory of “judicial engagement,” which Erler (like Jaffa) unwittingly mimics. I displayed no “animus” toward Justice Thomas, whom I compared to Homer and referred to as “normally exemplary.”

Finally, Erler cites Raoul Berger, author of the magisterial treatise Government by Judiciary (1977), as favoring a “reanimation” of the “privileges or immunities” clause of the 14th Amendment, but that grossly overstates Berger’s position. Erler contends that the 14th Amendment effected a “radical change” or “revolution” of the federal relationship, heralding the incorporation of the Bill of Rights and opening a Pandora’s Box of unenumerated rights. Berger disagreed, concluding that the 39th Congress meant only to assure that the recently freed slaves were accorded the basic legal rights generally available to white citizens—to validate the provisions of the Civil Rights Act of 1866. The right to vote had to be guaranteed separately, and Berger is emphatic that the “limited purposes” of the 14th Amendment did not include encroaching on state sovereignty. Once again, Erler is totally off base.

In sum, no one on the Right questions the ultimate source of our rights: They were endowed to us by our Creator. The question is, in a constitutional republic, how do we protect those rights?

The Framers looked to representative self-government, tempered by federalism, filtered popular rule, the separation of powers, and the delineation of certain rights beyond the reach of majoritarian interference—all preserved in written constitutions at the state and federal level. Judges review the constitutionality of laws in the deliberate manner envisioned by Alexander Hamilton in Federalist 78—firmly tethered to the constitutional text. If the people want to protect additional rights, they can amend their state or federal constitutions to do so. This is the essence of sound constitutionalism and the rule of law, not Lincoln idolatry, utopian resort to Platonic Guardians, or parroting the eccentric—nay, silly—rhetoric of cantankerous ideologues.

How can we make constitutional law great again? To paraphrase the title of Erler’s article, don’t misread the Constitution the way Jaffa did.

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America • Center for American Greatness • Democrats • Donald Trump • Electoral College • Environment • Identity Politics • Post • The Constitution • The Left

Constitutional Fairyland

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Another week, a new harvest of insane Democratic pre-electoral hobby horses. Various of the numberless swarm of presidential aspirants in that party have glibly chimed in with their views of how to modify American government to assure a permanent “progressive” majority. Gathering steam now are absurd ideas to side-step the Electoral College, pack the Supreme Court, lower the voting age to 16, and divide the political rubble heap of California into three or four states to create more Democratic senators.

All of this is nonsense, emanating from the same political fairyland as the 12-year elimination of carbon use and bovine flatulence. La Pasionaria Occasion assures us her Green New Deal will not lead to millions of unemployed as the leaders of organized leaders claim, but too a “reinvigorated workforce.” That is a (presumably) unintended recourse to Orwellian newspeak: involuntary unemployment is rarely reinvigorating.

Would-Be Rulers East and West
The bunk about the Electoral College is an attempt to subvert the basis of the American federal system. Little states such as Delaware and Rhode Island had the same number of senators as large states like Virginia (which then included West Virginia) and Pennsylvania, for the reason that their interests as states were just as significant as those of the large ones—and probably in need of even greater protection. (Philadelphia in 1787 was the second largest English-speaking city in the world, with 34,000 people, though a long way behind London, 20 times as populous.)

The champions of the project to negate the Electoral College recognize the practical impossibility of amending the U.S. Constitution for such a partisan measure. In practice, an amendment requires a two-thirds majority of each house of Congress and the concurrence of three quarters of the states, and evidently partisan measures have no chance of leaping these hurdles. Especially in this case, where all the states with fewer than ten electoral votes are effectively disenfranchised, the opposition of a majority of states could be assured in advance.

The detour proposed is that states determine that all their electoral votes shall be cast for whichever candidate receives the largest number of votes. In effect, the Democratic Party elders in New York City, Los Angeles, Chicago, and San Francisco want to take for themselves the power to overturn the verdict rendered by 20 or more states in all parts of the country. A federation equitably homogenizes the collective will of the whole country and balances out the great cities and the more thinly populated states, the regions, and the vastly differing socio-economic characters of the different states.

The whole idea is based on the false notion that the present system throws up presidents who receive fewer votes than their chief competitor. This has happened with John Quincy Adams and Andrew Jackson in 1824, Rutherford Hayes and Samuel J. Tilden in 1876, Benjamin Harrison and Grover Cleveland in 1888, John F. Kennedy and Richard Nixon in 1960 (if the Democratic votes in Alabama for Senator Byrd are not falsely awarded to Kennedy), in the Bush-Gore election of 2000, and the Trump-Clinton election of 2016. Calling upon small states to fall on their swords and put their votes where New Yorkers and Angelenos and Chicagoans want will not achieve the goal of “making every vote count” that is claimed. This is part of the leftist misspeak that holds, inter alia, that “pro-choice” means pro-choice when it really means pro-abortion, and that euthanasia is “death with dignity” and death from a wasting illness is not. (In general, suicide is not usually the most dignified way to die, though it can be. The point is that it should not be allowed the benefit of that phrase uncritically.)

If the advocates of eliminating the Electoral College really wanted the candidate who received the most votes to win (of course, JFK and LBJ would be no better known today than Michael Dukakis and Lloyd Bentsen), then they should advocate that there be, as in the French presidential system, a run-off between the top-two candidates where there is not a majority on the first round. In 2016, Trump, on the second ballot, would have taken most of the Libertarian votes and the McMullin third party votes in Utah, and Clinton would have taken most of the Greens . . .

And Trump still probably would have won.

Under this proposal to end the Electoral College, entire election campaigns would be conducted in the 25 or 30 largest metropolitan areas, altogether excluding states with fewer than 10 electoral votes: Alabama, Alaska, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North and South Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Utah, Vermont, West Virginia, and Wyoming—27 states with 147 electoral votes. Why should these states waive their right to influence elections just to add to the political stature of such unworthies as Chuck Schumer, Kirsten (“I chose brave”) Gillibrand, Bill de Blasio, Kamala Harris, Gavin Newsom, and Rahm Emanuel? This is a greater enthronement of shabby bossism than ever prevailed in the piping days of Boss Tweed, Tammany Hall, and the Kelly-Daley years in Chicago, (which, with Lyndon Johnson’s skullduggery in Texas in 1960 led John F. Kennedy to say: “Thank God for a few honest crooks”).

Partisan Nostrums Disguised as Reforms
The court-packing scheme is completely spurious. There are three co-equal branches of government. Apart from deciding on the number of judges, nothing entitles the legislature to tinker with the composition of the Supreme Court. The current proposals to impose term limits, apportion appointments to each president, and so forth are just cruder forms of meddling than even FDR attempted by seeking to expand the court. He had won a colossal reelection victory, sweeping in huge congressional majorities behind him in 1936, and he still failed to add a few judges “to lighten case-loads.” (He did succeed in frightening the Supreme Court to be careful about invalidating his legislation, and ended up appointing seven of the nine justices.) On that occasion, the all-time heavyweight political champion of the country was rebuffed by his own congressional majorities, very loyal in almost all other matters. This proposal is just a suicide mission.

The rest of it—lowering the voting age and splitting California into several states—is just a naked partisan power grab. At times, the young were more Republican—and so was California when it was the state of Richard Nixon and Ronald Reagan. These things can change.

In pointing this out my intent is not to protect the Democrats from suffering from their tendency to believe that conditions in each state will be as they are now. My point is to protect a system that generally works well and has the legitimacy accorded it from 230 years unbroken practice, from the infantile tinkering of hacks like the egregious Democratic Party Chairman Tom Perez.

All of these partisan nostrums aren’t reforms, they are just the less than righteous grumblings of people who thought they had durably gamed the system already after they watched in horror as this president dumped their apple-cart and lumped in the look-alike Republicans going through the motions with the Democratic winners who show their gratitude by going to the funerals of Republicans they defeated in presidential elections.

The Reagan legacy was squandered when George H. W. Bush allowed the charlatan Ross Perot to take 20 million mainly Republican votes, and we got the Clintons—“New Democrats,” who metamorphosed into the new normal, flat-lined Obama welfare state. It is clear from the tenor of the Democratic race this year that these wished for “reforms” are just another wheeze of the “OBushintons” to re-establish a permanent majority for their soft-left vote-harvesting declinism: the disintegration of the American state in equal opportunity self-denigration in favor of every aggrieved claimant group, foreign and domestic.

It won’t fly, and if these numberless, faceless candidates push any of this silliness, they will regret it. They are already like an awkward wave of people going over a minefield and detonating everything. At some point they are going to have to try to mount a serious campaign. Joe Biden, inadequate as he is, will make every Trump vote count, and will enable the Democrats to solemnize their electoral death with dignity.

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Administrative State • America • Center for American Greatness • History • Post • The Constitution • The Courts

Don’t Read the Constitution the Way Robert Bork Did

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In two recent articles (“Phony Constitutionalists Despise This Freshman Senator” and “The Pernicious Notion of ‘Unenumerated Rights’”) Mark Pulliam attempts to construct a defense of original intent jurisprudence. His attempt is vitiated by one glaring defect: he is utterly mistaken about the first principles of the Constitution. He invites us to “Recall our first principles: The U.S. Constitution is a compact among the states, which existed as separate sovereigns prior to ratification of the Constitution in 1789.”

The Constitution, of course, states that “We the people of the United States . . . do ordain and establish this Constitution for the United States of America.” It is notable that it does not say “We the States. . .” The people created the Constitution, the Constitution did not create the people. Article VII of the Constitution specifies that it was signed “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.” Thus independence is fixed on the date of the Declaration of Independence, which refers to Americans as “one people” and as “the good People.” The people who established and ordained the Constitution were the same people who dissolved “all Allegiance to the British Crown.”

Madison and Hamilton in The Federalist surely would not have characterized the Constitution as a “compact among the states.” Madison described it as “partly national, partly federal,” with the national elements being the “supreme Law of the Land.” Madison and the other leading Federalist supporters of the Constitution agreed that a compact among sovereign states would be, in Hamilton’s words “incompatible with the idea of government.”

Abraham Lincoln, in his July 4, 1861, “Message to Congress in Special Session,” refuted the allegation that states had ever been sovereign and therefore could in any way assert a right to secession. “The Union,” Lincoln declared, “is older than any of the States; and, in fact, it created them as States . . . Not one of them ever had a State constitution, independent of the Union.” He explained that the “United Colonies” were declared to be “Free and Independent States” in the Declaration of Independence. The object of the Declaration was not to proclaim them independent of one another, but as united states. They were not independent, sovereign states having no connection with one another, they were united together as a nation. The states have never been sovereign; they formed their constitutions as members of the United States of America. Lincoln perfectly captured the understanding of America’s Founders.

Pulliam, following Robert Bork, would probably reply that the natural law principles of the Declaration of Independence are entirely subjective and can yield any imaginable (and imaginary) results. Bork, in fact, argued that the Declaration was the beginning of our troubles; once you begin with the central principle of human equality you inevitably find yourself on the slippery slope to permissive egalitarianism. The Declaration, he argued, proclaims natural rights but is silent about natural duties. It should not be surprising then that today there are no limits, as Pulliam points out, to what may be claimed as individual (and idiosyncratic) rights. The Declaration is the real origin of substantive due process and substantive equal protection rights.

Bork frequently quoted Justice James Iredell’s opinion in the 1798 case of Calder v. Bull: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject.” This, it would seem, is the reductio ad absurdum for both Bork and Pulliam—but not for the Founders. It is certainly true that “the ablest and the purest men” have disagreed about the principles of natural justice. But there was no disagreement among the Founders about the principles of the Declaration, beginning with the “self-evident truth” that “all men are created equal” and culminating in the right and the duty of the people to “alter or abolish” government when it becomes destructive of the ends for which it was established—the safety and happiness of the people. This is not “subjective fantasy,” but the inductive reasoning derived from a truth that is evident to all who have the capacity to reason.

The Declaration, of course, is the quintessential statement of social compact and Madison is famous for his frequent repetition of the basic principle that all just and free government is derived from social compact. Social compact rests on the consent of the governed as its legitimating principle and consent itself is synonymous with natural human equality. But in forming civil society based on consent, each person who consents to be governed also consents to incur the many obligations of society. This means, at a minimum, that in return for the protection of his rights and liberties each individual pledges to protect the rights and liberties of others. Rights and obligations are reciprocal in social compact. Bork was wrong. The Declaration does encompass obligations. The pursuit of happiness contains moral obligations; rights must be consistent with public happiness and the public good. This excludes any notion of rights that are merely self-serving or idiosyncratic. Given Bork’s defective understanding of the Declaration, it is little wonder that he and Pulliam reject it. But the grounds on which they reject it are wrong!

Pulliam and Bork rightly rail against judges who invent rights that have no textual basis in the Constitution or cannot fairly be inferred from the Constitution’s text. Both deny that there are “unenumerated” rights, even though the text of the Ninth Amendment indicates there are other rights “retained by the people” not listed in the Bill of Rights.

Madison, of course, always opposed a Bill of Rights, even as he became the prime mover in securing its passage. One of the reasons he opposed the project is that a list of rights reserved against government could never be exhaustive, and because it could not be comprehensive it may well become dangerous. The legal argument is “whatever is not included is excluded.” A list in the law or constitution cannot be simply suggestive: “Here is a list of things that are forbidden and there are other things as well that we cannot think of right now but may become important in the future.” No law or constitution can be so imprecise, but this is exactly the danger that Madison attempted to address in the Ninth Amendment. “The rights adumbrated in the first eight amendments are not exhaustive. There are others retained by the people and they must remain unenumerated.”

Madison realized that it would be better not to have a Bill of Rights because sooner or later, instead of limited government, we would come to believe that government can do everything except what we expressly say it cannot do. Without a Bill of Rights we would be more likely to demand that government justify the exercise of its power in terms of its delegated powers. The addition of a Bill of Rights, as Madison predicted, would transform limited government into unlimited government. This is the situation we find ourselves in today. The Ninth and 10th Amendments were designed to forestall that eventuality. But as Madison also realized, they were weak attempts to preclude the inevitable.

Bork argues that some parts of the Constitution are too obscure to be understood; their text, history, and logical structure simply cannot be understood—it is as if they has been rendered indecipherable by “inkblots” on the text. Because they are indecipherable they should be ignored. This is the case of the Ninth Amendment’s invocation of unenumerated rights. Best to ignore this “inkblot provision.” This is how Bork understands original intent jurisprudence! It is fair to ask, however: if it is legitimate to ignore parts of the Constitution one does not approve under the pretext that it is obscured by “inkblots,” why is it not equally legitimate to put into the Constitution clauses (and substantive rights) that one would like to have there? What is the essential difference? Isn’t one just as much judicial activism as the other?

Pulliam cites Justice Anthony Kennedy’s so-called “mystery clause” as a reductio ad absurdum of how the Supreme Court manufactures unenumerated rights out of whole cloth. I, too, have ridiculed this passage, and at the risk of being ridiculed myself, I bring it for discussion once again. Justice Kennedy had written in the context of abortion rights and the right to privacy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Pulliam characterizes this as “the type of psychobabble folderol that activist judges use to impose their policy preferences on Americans.” In the context of abortion, Pulliam’s ire is understandable. But we can also see this statement as resting at the heart of the free exercise of religion or what Madison called the “rights of conscience, the most sacred of all rights.” It is beyond cavil that this “sacred right,” where those decisions about how to worship God according to the dictates of one’s own conscience, requires something like the right to privacy, a sphere insulated from government intrusion. This is certainly one of the unenumerated rights that are encompassed by the Ninth Amendment. However, it is doubtful—nay impossible—to believe that abortion falls within the ambit of the rights of conscience.

For Bork, however, any reference to natural rights propels us into the realm of “values and totalities.” Madison feared this development: for Bork, rights do not exist by nature; they exist only because government confers them. Thus there can be no unenumerated rights; all rights are positive rights. Rights do not exist prior to the advent of government. The danger, as the framers knew, is that if government can create rights, it can destroy rights as well. Bork, true to form, denied there was a natural right to revolution, even though the founders described it as the right that guaranteed every other right.

Pulliam displays a particular animus at Justice Clarence Thomas’s attempts to restore the moribund “privileges or immunities” clause, fearing that it will provide a new source for judicial activism. “Privileges or immunities,” Pulliam argues, was rightly interred in the Slaughterhouse Cases (1873). It is clear, however, that from even the most casual reading of the debates in the 39th Congress, the framers of the 14th Amendment intended privileges or immunities to be the substantive core of the amendment. The clause repeated Article IV of the original Constitution and made that clause binding upon the states. It was because Slaughterhouse rendered the privileges and immunities clause impotent that due process and equal protection were pressed into service. Those clauses were ill-suited to the substantive tasks designed for privileges or immunities; thus the confusion and lack of boundaries that have resulted in due process and equal protection jurisprudence.

Raoul Burger, the famous 14th Amendment scholar and original intent jurisprude, sought to reanimate the privileges or immunities clause as a way of curbing judicial activism because he calculated (rightly in my opinion) that privileges or immunities were more amenable to limitation than equal protection and due process. This is precisely what Thomas is attempting to do. Natural law jurisprudence provides a principled basis to curb judicial activism. Thomas alone among the members of the Supreme Court understands this. Those following Bork, I don’t think, ever will.

The natural law principles of the Declaration, as Madison noted in the central number of The Federalist, was the authoritative ground of the Constitution—and still today is listed as the first of the Organic Laws of the United States in Title I of the U.S. Code. There is abundant evidence that the framers of the 14th Amendment sought to complete the founding by readopting the principles of the Declaration.

One quote, from Representative Thaddeus Stevens on May 8, 1866, is typical:

It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.

Insofar as the Constitution allowed for the continued existence of slavery and provided protections for that “peculiar institution,” it was only a partial expression of the Declaration’s central principle that “all men are created equal.” The concessions to slavery were necessary to keep the slave states, particularly South Carolina and Georgia, from bolting the convention. But when the Constitution is read in the light of the principles of the Declaration, the provisions protecting slavery are clearly shown to be compromises and not principles; that is, they are temporary departures from principles taken in order to secure the adoption of the Constitution which, in Lincoln’s phrase, put slavery in “the course of ultimate extinction.” But if we follow Bork and Pulliam in insisting that any reference to sources outside the text and structure of the Constitution is illegitimate, then we cannot distinguish the Constitution’s principles from its compromises. The provisions in the Constitution protecting slavery would then have the same status and dignity as those protecting liberty. It is the Declaration that supplies the purpose to the Constitution, and clearly distinguishes the permanent protections afforded liberty from the temporary expedients that protect slavery.

The Fifth Amendment specifies that “no person can be deprived of life, liberty or property without due process of law.” The debate that consumed America in the decade of the 1850s was whether a slave was a person or property. How can that question be settled within the “four corners” of the Constitution? In every circumlocution touching on the issue in the Constitution slaves are referred to as “persons.” At the same time, they are treated as “property” when they are taxed and when the return of fugitives is required. Within the “four corners” of the Constitution’s text, I submit, it is impossible to decide. Once you have reference to the principles that inform the Constitution, the Declaration, the question is easily resolved; human beings can never be property because “all men are created equal.” Those protections for slavery in the Constitution are compromises made necessary by political expediency to be tolerated only as long as necessary until it was possible to implement fully the principles of the Declaration. And, as Rep. Stevens remarked in 1866, the time for the fulfillment of the Declaration’s principles was at long last demanded by circumstances.

By the time Rep. Stevens gave his speech, the 13th Amendment abolishing slavery had already been passed. The late Harry V. Jaffa made a startling, but true, argument that the 13th Amendment is an unrepealable part of the Constitution. There is nothing in the Constitution that makes any amendment unrepealable, although some parts of the Constitution are still said to unrepealable, e.g., that every state must have two senators. Since the invocation of an unrepealable provision would have to rely on an authority higher than the Constitution, it would be difficult to imagine what authority could exist for the proposition that every state have two Senators. It is obviously different for the 13th Amendment. Here the natural law and natural right authority of the Declaration, the authoritative source of the Constitution’s authority, makes it unrepealable. Natural law principles—flowing inexorably from the fact of human equality—condemn slavery as a violation of natural law and natural right. Bork says, however, that the 13th Amendment could be repealed by a subsequent amendment but we depend on the good sense of the American people never to do so. For Bork, the Constitution is a positive law document that is merely procedure without a purpose. For the Founders, however, the purposes of the Constitution were spelled out in the Declaration of Independence and the Constitution served as the means to fulfill those purposes.

The rights contained in the Bill of Rights were originally designed to be part of the “privileges and immunities” that adhered to federal citizenship in Article IV. The architects of the 14th Amendment clearly intended to make the protection of those same rights safe from violations on the part of the states. It was thus the intention of the framers of the 14th amendment to “incorporate” the provisions of the Bill of Rights, not through the due process clause, but through “privileges or immunities” clause. Anyone who reads the 14th amendment debates easily can glean this intention from its leading proponents. The majority in Slaughterhouse willfully ignored this evidence. Had they given full recognition to the framers’ intent with regard to “privileges or immunities,” the due process catastrophe that we know of as “incorporation”—the source of so much judicial activism—could not have occurred.

Slaughterhouse upheld a state monopoly that the majority said did not implicate any privilege or immunity of United States citizenship. Clearly, however, a monopoly is an assault on the right to property, one of the “the privileges or immunities of citizens of the United States,” that the framers of the 14th amendment intended to be protected from state abridgment. Madison had written in his famous essay on “Property,” published just after the ratification of the Bill of Rights, that property was the right that comprehended all other rights, including freedom of speech, free exercise of religion, the rights of conscience, and other rights. His memorable phrase was that “as you have a right to property, so you have a property in your rights.” Monopoly, Madison averred, was an assault on the right to property because it denied the right to choose an occupation which was the primary means of securing property. As a means to securing property, the right to choose an occupation freely was a part of the right to property—it was a necessary extension of that right. Clearly, a proper understanding of the original intent of the framers of the 14th Amendment would have concluded that the free choice of an occupation was properly a part of the right to property under the “privileges or immunities” clause which the states could not abridge.

The Slaughterhouse majority took a truncated view of the “privileges or immunities” clause premised on the mistaken view that no change in the federal relationship had been worked by the 14th amendment. This was patently false. In the 39th Congress, the defenders of states’ rights—the heirs of those who were defenders of the southern slavocracy—attempted to maintain the palpable fiction of state sovereignty. The states were not sovereign before the Civil War and it was utterly futile to argue state sovereignty after the war, although there were enough states’ rights advocates to provoke debate. Calhoun’s “ingenious sophism” that “all men are not created equal, all States are created equal,” was the centerpiece of slaveocracy’s defense of slavery. That argument was dead in the post Civil War debates—but it continued to have advocates.

The 14th Amendment portended a radical change of the federal relationship. The privileges or immunities of United States citizenship were now primary and those of state citizenship secondary. The Slaughterhouse majority, of course, tried to minimize the revolution occasioned by the Reconstruction Amendments. Pulliam is simply wrong when he says that the Reconstruction Amendments were intended to apply only to the equal civil and political rights of the newly freed slaves. Even Slaughterhouse doesn’t take that position.

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America • Center for American Greatness • Congress • Democrats • Donald Trump • Elections • Mueller-Russia Witch Hunt • Post • Republicans • The Constitution

Democrats Advance to the Rear and Take America to the Woodshed

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The announcement by House Speaker Nancy Pelosi (D-Calif.) that she was opposed to impeaching the president unless something unexpected and mortally damaging to him arises, has almost unimaginably transformed her into a force for good sense in Congress. Maybe she thinks Special Counsel Robert Mueller will produce something the impeachers can run with and she is staking out a false position as a balanced and statesmanlike opponent of anything but impeachment for real crimes, to assist her in trying to get some Republican support to remove the president. More likely, she knows it’s a hopeless case and is taking the high ground early, before Mueller throws in the towel for her.

After prolonged and malicious scrutiny such as no president except Richard Nixon has ever faced (and in Nixon’s case somebody did illegally enter the DNC office at the Watergate and somebody tried to obstruct justice), there is nothing to hang on President Trump, so the speaker has joined the James Comey school of sophistry.

Comey said that to impeach and remove Trump was “letting the country off the hook,” by which he meant that since there were no grounds to impeach or remove him, and the country voted him in, the country had to vote him out. That philosophical overview did not, of course, deter Comey from writing a probably false memo to himself, which instantly became government property, which he then illegally leaked to the New York Times—all, as he has proudly asserted, to bring the Mueller investigation into existence and down on the president’s back even though he knew there was no reason to believe that Trump was guilty of anything. Comey is doing an unusually acrobatic star-turn, as Hillary Clinton blames her electoral defeat on Trump’s “treason” as well as on being “shivved three times by Jim Comey.” Never mind that two of the shiv attacks were exonerations and one of those was probably Comey’s illegal acquiescence in Clinton’s criminal behavior.

Comey didn’t seek the impeachment of the president, merely that he be mercilessly tormented with a phony investigation established because of Comey’s own illegal acts. But the point still is: we must not impeach and remove Trump because the country must stew in its own juice and pay the price of having elected him president.

Jim Comey’s tough love for the country—not the complete absence of a cause for impeachment—incidentally spares the president impeachment. At least Nancy Pelosi, as far as we know, has not committed crimes, and she too eschews impeachment, not because there is no evidence of the president having done anything impeachable, but because the process is so “divisive to the country” and this president “is not worth it.” The clear implication is that he could be impeached, and may have done things that merit impeachment, but the president is too unimportant and doubtless afflicted by moral turpitude to be worth the bother of impeaching him.

Two years apart and by different routes, the Democrats appear to have arrived at the end of this trail: to teach the country its lesson—give it a proper trip to the woodshed and punish it severely, Trump will be permitted to complete his term, and as our parents used to say, by the same token, because he is too insignificant to justify the level of controversy impeachment entails, the country can be spared that process.

Spurious, pompous, and mendacious casuistry though this is, within this retreat there are some important consequences. Pelosi has effectively acknowledged that even though for two years the country had an emasculated attorney general who immediately after being confirmed with a heavy laying on of the Republican whip in the Senate, recused from a lethal and legally unfounded challenge to the president’s legitimacy, and even with fanatically hostile media and rabidly antagonistic special counsel staff and practically unlimited time and powers, nothing could be found to discommode this president seriously. There are many predecessors in that great office of whom the same could not be said.  

And the speaker has pulled the rug out from under the succeeding chapter in the hastily cobbled together second round of the national sport and parlor-game: “Let’s Torment the President.”’ Representatives Jerrold Nadler (D-N.Y.) and Adam Schiff (D-Calif.), chairmen of the House judiciary and intelligence committees, have said the word “impeachment” or a derivative of it in every other sentence they have publicly uttered since Election Day 2016. Nadler has produced the distinctive constitutional interpretation that the president’s frequent references to the Mueller inquiry as a “witch hunt,” despite the fact that Trump has been fully cooperative with it, constitutes obstruction of justice, though Nadler, in his suave nonpartisan professionalism allows that though a crime, this form of obstruction may not meet the criteria  for the “high crimes” required by the Constitution for removal of a federal officeholder. This is a variant on the Comey and Pelosi weaselfest.

The president’s exercise of his First Amendment right to free speech in reference to an improperly constituted and partisanly directed investigation that has torn his administration apart and fed the Democratic media defamation factory for two years is a crime, but possibly not on a scale sufficient to justify removal from office. I am very conversant with the relevant works of Franz Kafka, George Orwell, and Arthur Koestler, and none of them had the morbid or maladjusted imagination to conceive of so implausible an official stance. The closest I can think of was Kafka’s infamous category of “nameless crimes.” Schiff merely repeats endlessly that he has “clear” and “strong” prima facie evidence of collusion between the Trump campaign and Russia, but never reveals it.

Speaker Pelosi has cut the ground out from under the Nadler-Schiff blizzard of subpoenas for 81 witnesses and herniating masses of documents. There is no ground for impeachment; this cannot possibly lead anywhere legislatively. It is just a squalid, gasping effort to keep the fiction of Trump’s legally suspect election going and producing more fake news for the Democratic media propaganda machine.

It is one of life’s pleasant surprises that Nancy Pelosi should be the agent of a benign shift in public discourse. She is obviously having trouble keeping some of her caucus within rational policy guidelines, and the anti-hate resolution was a fiasco that leaves the country wondering how much of the dog the tail comprises. But she has effectively told them that it is time to try to win the next presidential election and to stop trying to overturn the last one. It is one of the most ungraciously formulated retreats since the German army announced in 1942 that in Russia it was “advancing to the rear,” but it is a welcome gleam of realism.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

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America • Americanism • Center for American Greatness • Post • The Constitution • The Courts • The Left

Clarence Thomas: “Freedom Man,” Free at Last

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In his farewell address, President Ronald Reagan recalled a Vietnamese refugee who upon leaving his leaky boat for the American rescue ship, yelled out, “Hello, American sailor. Hello, freedom man.”   

That image of American military power in the cause of justice is replicated in the stormy seas raised by administrative state today: our “freedom man” is Supreme Court Justice Clarence Thomas.

Reagan appointed “freedom man” to his first executive branch positions back in 1981 and 1982, first to the Department of Education and then to the U.S. Equal Employment Opportunity Commission, where he was chairman. I had the honor to work for Thomas as a special assistant at the EEOC from 1986 to 1990, when President George H. W. Bush appointed him to the D.C. Circuit Court of Appeals. Bush subsequently nominated him for the Supreme Court, where he has served for 28 years. In each position Thomas expanded freedom to the extent his circumstances permitted him.

His latest Supreme Court opinions display his view of freedom in abundance. Out of a tangle of facts and precedent, Thomas has the genius to spot the principle that will allow him to protect and foster fundamental freedoms. Consider two of his February  opinions in the area of free speech and basic constitutional protections, as well as the related area of freedom of religion.

The most noted of these opinions came in a Bill Cosby trial-related case and involved the scope of free speech: Specifically, Thomas raises the question how much free speech protection is available to persons accused of violating libel laws?

Right now, too much: almost anyone, such as a Bill Cosby accuser, could be regarded as a “public figure,” who must prove “actual malice” to sue for libel damages—Cosby’s lawyers therefore easily vilified the victim in this case as a liar. Thomas insists on a reconsideration, to provide non-public figures some real recourse against defamation.

Compiling impressive evidence, he rightly observes, “New York Times [v. Sullivan (1964)] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” By virtually wiping out state libel laws, they placed an overwhelming burden on those who would sue for being libeled. “If the Constitution [in “the original understanding”] does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Frequent critics of Thomas, such as Obama appointee and confidante Cass Sunstein, of Harvard Law School, praised his “public service” of reopening the case for stronger libel laws.

Sunstein adds, “New and creative thinking, designed to protect people from having their reputations shattered, is very much in order.” Of course Sunstein would use his creative reading of such laws to sue President Trump, when he disparages an opponent. Altogether, as Edward Erler has shown, Sunstein is actually an enemy of free speech, preferring Franklin Roosevelt’s “Economic Bill of Rights” to the original. Under Sunstein’s regime we would have reduced political free speech, less talk radio, and more dominance of progressive dogma.

Another Harvard Law professor, Noah Feldman, contends Thomas wrote a fascinating and bizarre opinion that contradicted itself. After all, Feldman desperately maintains, “An attack on the New York Times v. Sullivan case is . . . an attack on the media.” But there is no contradiction here at all: robust political speech suffers today not from Alien and Sedition Acts but from political correctness.

By denouncing the opinion as “medieval,” Feldman caricatures Thomas’s core principle in his jurisprudence: his rootedness in natural law, the natural rights teaching of the Declaration of Independence. Whether he is defending a baker’s free expression rights in designing and selling his wedding cakes or discouraging reckless, defamatory speech, Thomas is encouraging a freer and more just society.

In his concurring opinion on the constitutional prohibition on excessive fines and thus the issue of civil asset forfeiture, Thomas again demonstrated how his original understanding approach could protect freedom from both prosecutorial and judicial recklessness. Being free of an “excessive fine” was an explicitly protected “privilege or immunity” or right, with a distinct history and embedded in the Constitution, not an invention of the judiciary that distorted the concept of “due process of law.” He thus reaffirmed his critical McDonald case 2010 vote protecting gun ownership rights as a “privilege or immunity.”

Finally, while Justice Thomas maintained his typical silence in the oral argument of he hotly disputed Maryland Cross case, he will likely extend the reasoning of his concurring opinion in a previous case involving a monument with religious significance. The Maryland Cross case involves a 40-foot-high cross on public land, erected to commemorate fallen World War I veterans from the area. Oral argument indicated that the court would likely allow the cross, thus further backing away from its earlier claim that such religious monuments were a prohibited government “establishment of religion.”

The real issue was what reasoning the court ought to adopt. Was the cross acceptable as an instance of “civic deism”? As tradition and history? As a sign of respect at the time of its erection, 93 years ago? Thomas would reject all these weak arguments in favor of the original understanding of the First Amendment: government may not coerce religious belief or a rejection of it. That means religious freedom and therefore no established religion.

Just as free speech protects utterance of offensive opinions, religious symbols that may cause offense cannot for that reason alone be prohibited. This means that monuments with religious meaning may be erected on public land (as in Arlington National Cemetery) and prayers may begin city council meetings without accusation that a state religion is being propounded. More positively put, religion may flourish in the public square.

We will not hear a farewell address from Justice Thomas for a while. For he hasn’t yet spoken all of his piece yet.  

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2016 Election • Administrative State • Center for American Greatness • Donald Trump • Post • Progressivism • The Constitution • The Culture

The Indispensable Guide to the Matrix

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You’ve felt it your entire life, that there’s something wrong with the world. You don’t know what it is, but it’s there, like a splinter in your mind, driving you mad. It is this feeling that has brought you to me. Do you know what I’m talking about? —Morpheus, “The Matrix”

Pop culture references go stale pretty quickly, so it’s usually best to avoid them. But when a movie made 20 years ago reveals a genuinely interesting and important truth, it’s worth bending the rule.

A Review of

Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century

by John Marini, edited by Ken Masugi

(Encounter Books, $20.58)


In 2016, Donald Trump was elected president of the United States by millions of people who knew—or sensed—that something in American political life was deeply wrong or broken; and that Donald Trump sensed this as well and wanted to do something about it. Most of these voters couldn’t fully articulate what was wrong (neither in many cases could Trump!), but they had begun to doubt the essential truth of what they were being told. The official narrative about our government, our public life, and our culture—the story told by Washington, Hollywood, Wall Street, and Harvard—was not quite a lie, perhaps, but many had become convinced that it was not quite the whole truth either. There was “a glitch in the matrix.” And people felt it—like a splinter in their minds.

These taglines, of course, are from the 1999 film, “The Matrix,” starring Keanu Reeves. In the movie, Artificial Intelligence has run amok and enslaved humanity by creating a false reality—“a computer-generated dreamworld.” Reeves as the movie’s hero begins to discover the truth and is offered the choice between staying in the real world—where a small band of humans are fighting to liberate mankind—or returning to the comforting illusion of the Matrix:

This is your last chance. After this, there is no turning back. You take the blue pill—the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill—you stay in Wonderland and I show you how deep the rabbit-hole goes.

Around 2016, the term “red-pilled” (which had bounced around subReddits and Internet chat forums for several years) became a popular, semi-humorous meme to describe people who had come to support Trump because they stopped believing in or accepting the legitimacy of what we might call the liberal consensus, or the uni-party status quo. By 2016, this status quo—and the myths supporting it—had become illegitimate in the eyes of much of the electorate.

John Marini’s profoundly important and illuminating book, Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century, explains how all this came to be.

Marini shows that despite a radical break both in theory and practice with the Founders’ constitutionalism, the progressive narrative that dominated the late 20th and early 21st centuries had convinced much of the public that American government was functioning more or less as it should do. To be sure, there was important work yet to be done: fine-tuning the proper distribution of benefits; empowering various disenfranchised or underappreciated groups; creating a society ever more free from racism, inequality, and misgendering. But in principle, government was on the right track.

The mandarins of both the Democratic and the Republican parties accepted this understanding and therefore, between them, represented the full range of acceptable policy options on trade, immigration, crime, culture, and foreign affairs. Perhaps most important of all, the narrative insisted that the experts running the various federal departments and agencies—as well those in charge of academia, the media, and the influential technology and social media companies—knew what they doing and not only could be trusted to remain in their positions of authority but should be obeyed. Who exactly had put them in charge of so much of our lives, and who held them accountable, however, had become somewhat unclear. (Such questions, by the way, never seemed to be raised by most “independent” and “objective” journalists or professors.)

In 2016, when these myths was no longer believable for many people, Donald Trump was able to capture the presidency on the promise to restore America’s sovereignty in the world, and the people’s sovereignty at home in their government. The old elites still don’t know what hit them.

To unpack this strange and astonishing story, Marini weaves together German philosophy of history, sociology, and demographic trends, institutional developments in Congress, the “politics of budget control,” constitutional jurisprudence, the classical teachings of Plato and Aristotle, federalism and separation of powers, and particularly the rise of the bureaucracy as a faction within the government. From this seeming wilderness of topics and ideas, Marini traces a coherent path toward the work’s unifying theme, most succinctly expressed by the book’s editor, Ken Masugi: “the administrative state represents a change in regime, an actual overthrow of the Constitution of 1787.”

Marini shows the contrast between the Founders’ intentions and a progressive ideology animated by a radically different conception of human nature and the human good:

That difference, both theoretical and practical, becomes apparent when comparing constitutionalism as it was understood by the American Founders and the modern administrative state as envisioned in theory by Hegel and the American Progressives in practice.

A peculiar kind of administrative state, distinctly American, was consolidated within the constitutional order during the past century. It did not appear to violate in any procedural way, the letter of the Constitution. The political branches voted for its establishment, and the courts upheld most of its provisions. Nonetheless, it has contributed to undermining the political conditions of limited government and self-rule. In attempting to provide administrative solutions to social, economic, and political problems, it undercut or destroyed those institutions within civil society that had established the foundations of self-government, including the family and the church.

Marini’s careful analysis offers little in the way of bumper-sticker slogans. The truths he teaches in this book would be hard to scrawl on cardboard signs for a rally. But his measured prose has a kind of patient, inexorable, deadly precision—not unlike the precision of a world-class surgeon skillfully removing a particularly advanced and complicated tumor. The operation Marini performs in this book, however, is more demonstration than cure; exploratory rather than excising. For the only surgeon who can root out this cancer is the people in their collective political capacity. Marini’s political medicine, then, is meant to be instructive about the healing powers of politics itself. His intention is to show his fellow citizens how they, or rather we, can restore the health of the republic.

“If the people are to understand themselves as sovereign, they must reestablish the political authority of the Constitution in a manner that makes it possible to restore the moral ground of civil and religious liberty,” he writes. This means taking up the duty to exercise thoughtful and responsible citizenship, informed and enlightened by the complex story Marini has meticulously uncovered:

American public opinion must be reflected in the creation and mobilization of national political majorities. Constitutional government is not possible in the absence of the mobilization of such majorities. They are indispensable for establishing the legitimacy of law in a manner compatible with the rule of law and the common good. That requires revitalizing the meaning of citizenship and reaffirming the sovereignty of the people and the nation.

Marini has devoted a lifetime to understanding and explicating these questions; the book is a collection of essays written over several decades of close study and careful reflection. This leads to what may seem to be a certain weakness in terms of coherence. Some readers may find Unmasking repetitive when read cover to cover. But the advantage is that each essay has an integrity or wholeness that allows it to be digested on its own. My suggestion is to read the book slowly. Start with a chapter that catches your interest. You will be sure to learn something new. Each essay is a vignette—a red pill, if you will—exposing an aspect of the real world that has been operating beyond or below the comforting liberal narrative. Even reading one will open your eyes.

A last word on “The Matrix,” which like any work of art or entertainment, is also a form of illusion. In this movie, as in most, the hero wins at the end. Life doesn’t work that way. In the battle to restore our constitutional government, the defenders of freedom may lose. The administrative state is powerful; its ideology seductive. It fights dirty. We cannot guarantee success, as the famous play says, but we can deserve it.

But to have any hope at all, we must understand what is at stake. We must clearly see how our country came to be detached from the Constitution. This is not an easy thing to grasp—though hardly impossible. Reading John Marini takes a bit of work; most worthwhile things do. Only by understanding the nature and origins of our predicament can we begin to know what success would look like, let alone how to achieve it. Courage, devotion, even patriotism—though necessary—will not be enough. This is a battle of ideas.

Marini’s book is the indispensable guide to understanding those ideas.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo Credit: Getty Images

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2016 Election • Administrative State • Center for American Greatness • Deep State • Donald Trump • Intelligence Community • Law and Order • Mueller-Russia Witch Hunt • Obama • Post • The Constitution • The Media • the Presidency

Should the FBI Run the Country?

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Since the media would doubtless answer that loaded question, “It depends on the president,” let us imagine the following scenario.

Return to 2008, when candidate Barack Obama had served only about three years in the U.S. Senate, his sum total of foreign policy experience. And he was running against the overseas old-hand, decorated veteran, and national icon John McCain—a bipartisan favorite in Washington, D.C.

During the campaign, unfounded rumors had swirled about the rookie Obama that he might ease sanctions on Iran, distance the United States from Israel, and alienate the moderate Arab regimes, such as the Gulf monarchies and Egypt.

Stories also abounded that the Los Angeles Times had suppressed the release of a supposedly explosive “Khalidi tape,” in which Obama purportedly thanked the radical Rashid Khalidi for schooling him on the Middle East and correcting his earlier biases and blind spots, while praising the Palestinian activist for his support for armed resistance against Israel.

Even more gossip circulated that photos existed of a smiling Barack Obama with Louis Farrakhan, the Black Muslim extremist and radical pro-Gaddafi patron, who in the past had praised Adolf Hitler and reminded the Jews again about the finality of being sent to the ovens. (A photo of a smiling Obama and Farrakhan did emerge, but mysteriously only after President Obama left office).

Imagine that all these tales in 2008 might have supposedly “worried” Bush lame-duck and pro-McCain U.S. intelligence officials, who informally met to discuss possible ways of gleaning more information about this still mostly unknown but scary Obama candidacy.

But most importantly, imagine that McCain’s opposition researchers had apprised the FBI of accusations (unproven, of course) that Obama had improperly set up a private back-channel envoy to Iran in 2008. Supposedly, Obama was trying secretly to reassure the theocracy (then the object of Bush Administration and allied efforts to ratchet up pressures to prevent its acquisition of nuclear weapons) of better treatment to come. The conspiratorial accusation would imply that if Iran held off Bush Administration pressures, Tehran might soon find a more conducive atmosphere from an incoming Obama Administration.

Additional rumors of similar Logan Act “violations” would also swirl about Obama campaign efforts to convince the Iraqis not to seal a forces agreement with the departing Bush Administration.

Changing Status Quo Calls for a Federal Investigation
Further, conceive that at least one top Bush Justice Department deputy had a spouse working on the McCain opposition dossier on Obama, and that the same official had helped to circulate its scandalous anti-Obama contents around government circles.

In this scenario, also picture that the anti-Obama FBI soon might have claimed that the Obama Iran mission story might have been not only an apparent violation of the Logan Act but also part of possible larger “conspiratorial” efforts to undermine current Bush Administration policies. And given Obama’s campaign rhetoric of downplaying the threats posed by Iran to the United States, and the likelihood he would reverse long-standing U.S. opposition to the theocracy, the FBI decided on its own in July 2008 that Obama himself posed a grave threat to national security.

More importantly, the FBI, by its director’s own later admission, would have conjectured that McCain was the likelier stronger candidate and thus would win the election, given his far greater experience than that of the novice Obama. And therefore, the FBI director further assumed he could conduct investigations against a presidential candidate on the theory that a defeated Obama would have no knowledge of its wayward investigatory surveillance, and that a soon-to-be President McCain would have no desire to air such skullduggery.

The Bush FBI would be further alarmed in 2008 that Obama would, in addition, reverse long-standing U.S. foreign policy by restoring relations with Venezuela, Cuba, and “resetting” policy with Russia. In short, the intelligence community might suspect that a President Obama would turn enemies into friends, and friends into enemies—and thus endanger the entire post-war order.

Envision as a result that the Bureau would have notified the CIA of its concerns about a likely Obama radical new change in U.S. foreign policy toward archenemy, theocratic Iran. The CIA director would then also begin tipping off important Republican senators of the dangers Obama posed. He would spice up his warnings with the preliminary “data” gleaned from shared FBI-inspired counterintelligence surveillance operations of the various members of the Obama campaign—specifically, FISA-court ordered surveillance focused on, say, the Iranian-born Valerie Jarrett.

Again, no proof of any collusion, but lots of worries that the outsider Obama would pose a level of danger to the status quo.

At about the same time, in the weeks before the election, the Bush FBI and Justice Department would have presented to the FISA court a dossier paid for by the McCain campaign—produced through the use of both law and opposition research firms that had hidden the improper use of McCain campaign fund payments, as well the fact that the anti-Obama dossier was compiled by a British retired spy, with a long known hostility to the Obama candidacy.

Unverified Claims, Anonymous Sources
In this continuing thought experiment, the FBI would not verify 
any of the dossier’s salacious accusations, which covered lurid accusations concerning Obama’s personal life, his college years, his real estate deals with Tony Rezko, contacts with the felon Bill Ayers and the firebrand Father Michael Pfleger, his full relations with the anti-Semitic and anti-American Reverend Jeremiah Wright and the Trinity church, his mysterious college-era trip to Pakistan and his Pakistani friends, his own references to prior drug use, and additional and assorted quite sensational and inflammatory rumors that had come up during the 2008 campaign.

Many of the dossier’s details had been earlier leaked to conservative journalists by the deputy director and general counsel of the FBI, with the intent of damaging the Obama campaign. The conservative media would legitimize its gossip and anti-Obama smears by using terminology such as “two unidentified FBI sources” and “an anonymous source at the DOJ.” During the closing stretch of the campaign, suddenly lurid details from the dossier would be published to suggest that Obama was either a foreign stooge or unfit personally for the nation’s highest office.

Nonetheless, the Bureau would still believe that the dossier was important enough to support further investigation into Obama’s radical and suspicious behavior during the campaign—including the possibility of conducting federal surveillance on his staffers through the FISA courts. Such warrants would be obtained and used to reverse-target Obama campaign officials through the excuse of focusing on Valerie Jarrett and her supposed Iranian ties.

In addition, imagine that in talks with the CIA, the FBI director decided to insert a government informant into the Obama campaign to ascertain whether his outreach to Iranian officials or his ideas about resetting the Middle East comprised a national security threat—and, given some of the salacious material in the McCain bought dossier, whether Obama himself might be compromised as some sort of Manchurian candidate by blackmailers working for Iranian or Russian intelligence.

Finally, after the stunning defeat of John McCain, both the CIA and FBI would have been worried that the incoming Obama Administration might soon learn that the intelligence services had warped the FISA process by not apprising the court that the dossier was unverified, much less that it was paid for by the McCain campaign and its author severed from FBI contact. And they were further anxious that members of the Bush Administration had deliberately unmasked names of surveilled Obama aides and advisors, and leaked them illegally to the press.

Suspicious Activities, Thickening Plots
As a result of partial disclosures of such intelligence community misbehavior, President Obama would have fired the FBI director, who in retaliation would have leaked confidential memos of his private talks that he had with President Obama himself—in hopes of creating enough outrage to lead to the appointment of a special prosecutor to review Obama campaign and administration suspicious activity abroad. The FBI would attempt to create such hysteria over the firing of the director and charges of Obama collusion that the rogue behavior of government agencies would be largely ignored.
Meanwhile, imagine also that the FBI secretly continued with its prior counterintelligence investigations of the new president. The Bureau based its persistent surveillance on grounds of new worries during the transition and early months of Obama’s presidency that tended to fuel old suspicious of radical and dangerous new foreign policies.

The FBI noted that Obama’s first interview as president was with the Arab language Al-Arabiya, in which he sharply criticized past U.S. policies toward the Middle East; his June 2009 Cairo speech, in which he seemed to fault the West for much of the chaos in the Middle East while parroting Islamic “talking points” about Islam’s key contributions to Western culture; his silence when 1 million Iranians protested the theocracy during the so-called “Green Revolution”; and assorted loose gossip that he might be willing soon to trade billions of dollars for hostages and ease sanctions to conclude a so-called Iran deal.

Finally, also imagine that by 2012 under increasing pressure due to endless leaks, and Republican hostility, President Obama had relented and allowed the appointment of a special counsel, who turned out to be a friend of the fired FBI anti-Obama director. The counsel was charged with investigating whether Iran and radical Islamic groups had played an inordinate role in the 2008 campaign, and whether other foreign entities had exercised undue influence on the Obama campaign and administration.

Almost immediately, more leaks from the new special counsel’s team suggested that Obama himself might be also compromised by Russia’s Vladimir Putin. Accordingly, the counsel’s team quite expansively was suddenly also investigating the laxity shown the Russian government after its annexations of Crimea and eastern Ukraine; the administration’s unwillingness to provide arms to Ukrainian forces; the open mic quid pro quo pre-reelection promise to consider ending completely the U.S.-led efforts to install missile defense in Eastern Europe, should Putin stay quiet during the 2012 election campaign and thus give Obama space and flexibility and a boost in the elections; the strange decision to block U.S. oil companies from federal lands rich in natural gas and oil that enhanced Putin’s pivotal role in adjudicating world energy prices; and serial laxity in replying to continued Russian cyber attacks against private American companies and U.S. government institutions. Again, the effort would be to rebrand Obama’s legitimate but radical shifts in policy as criminal activity in a fashion designed to abort the Obama presidency or at least to shield public scrutiny from past FBI and CIA misdeeds.

During the 2012 Obama reelection campaign, Republican activists, former administration officials, and members of the Romney campaign would find access to some of the Bush-era surveillance dating back to 2008 and began leaking transcripts to the press. At the same time, the special counsel’s “dream team” (inordinately stocked with McCain and Romney contributors) would be rocked by scandal, once it was disclosed that in a series of texts two members of the investigatory team had expressed hatred for Obama, claimed that one could “smell” the presence of his supporters, and had hoped to derail his 2012 campaign. Some of their embarrassing texts would later mysteriously be proved to be unrecoverable, apparently erased or lost by the special counsel’s team.

Where Does It All Lead?
An exasperated Obama himself would have threatened to dismiss the special counsel as he serially complained that he had been an earlier victim of “wiretapping,” based on purchased smears by the McCain campaign, the use of a foreign former national intelligence officer to subvert his campaign, and the serial misconduct of the FBI that had illicitly surveilled his campaign and presidency on the bogus notion that his recalibrations in the Middle East either amounted to treason, or were the result of blackmail by foreign powers who had evidence of the  sort of behavior documented in the opposition-research dossier. Why, Obama would complain, was the special counsel team stocked inordinately with Bush conservatives, McCain donors, and even a few lawyers who had at times been McCain subordinates?

Obama was especially infuriated that Bush Administration officials in the FBI, Justice Department, CIA, State Department, and the National Security Council had worked with McCain campaign operatives to circulate the dossier on his prior friends and activities to media outlets. And why were former Bush CIA and FBI officials going on television to charge Obama with veritable treason?

The president was even more incensed that after his inauguration, the FBI had continued its FISA court surveillance of former campaign operatives, and persisted with surveillance of his own national security advisor.

For most of his presidency, an exasperated and harried President Obama tweeted incessantly that the FBI surveillance and special counsel investigation were constantly marked by leaks to Fox News and the conservative press on irrelevant issues and unproven stale gossip—such as old 2008 Obama campaign finance violations; ancient allegations that Michelle Obama had received favorable treatment at her University of Chicago hospital job once Obama had been elected senator; fossilized stories that Obama had still not paid taxes on the Rezko discounted gift of tangential property; tired narratives that in Obama’s prior senate campaign the sealed divorce records of both his primary and general election opponents had been mysteriously and unlawfully been leaked and published; new revelations that Obama’s own autobiography was little more than a mythography of composite sketches and made up narratives; and insinuations that ongoing scandals at the General Services Administration, Department of Veterans Affairs, IRS, and the Environmental Protection Agency might have cross-fertilizations with the special counsel investigations. Racy elements within the fabricated so-called McCain dossier such as unproven drug use, alleged manic chain-smoking, and libelous, unproven personal liaisons, would be favorite gossip of journalists.

A number of former Obama associates—Bill Ayers, Tony Rezko, Jeremiah Wright, David Axelrod—were reportedly being leveraged by special counsel attorneys in exchange for limiting their own legal exposure in a variety of areas. A sleepless Obama often railed that both the FBI and the special counsel were conducting “witch hunts” and “fishing expeditions,” and that there had been no “collusion” with either Middle East or Russian interests.

Obama, in our thought experiment, would have charged that the role of the Bush-era FBI, CIA, DOJ, and special counsel’s team had become part of a “resistance” to delegitimize his presidency. Indeed, Obama charged that conservative interests had long wanted to abort his presidency by fueling past efforts to subvert the Electoral College in 2008, to invoke the Logan Act, the 25th Amendment, and the Emoluments Clause (based on rumors of negotiating lucrative post-presidential book and media contracts by leveraging his presidential tenure), as well as introducing articles of impeachment.

Celebrity talk of injuring Obama and his family would be daily events. Actor Robert De Niro talked of smashing Obama’s face, while Peter Fonda dreamed of caging his children. Johnny Depp alluded to assassination. It soon became a sick celebrity game to discover whether the president should be blown up, whipped, shot, burned, punched, or hanged.

Imagine that if all that had happened. Would the FBI, CIA, or FISA courts still exist in their current form? Would the media have any credibility? Would celebrities still be celebrities? Would there ever again be a special counsel? Would we still have a country?

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: Alex Wong/Getty Images

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America • Donald Trump • Government Reform • Immigration • Post • The Constitution

Some Best Possible Outcomes of the Shutdown

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The longest-lasting partial federal government shutdown in U.S. history affords President Trump the opportunity to kill off an over-the-hill political spectacle, drain some of the swamp and maybe—just maybe—build the wall.

Trump is a disruptor and a breaker of political norms that need to be broken. Among the more irritating contemporary norms is the State of the Union address delivered to a joint session of Congress every January and televised nationwide during prime time.

Speaker of the House Nancy Pelosi (D-Calif.) on Wednesday asked the president to reschedule this year’s address until the shutdown is over, citing security concerns. Some outlets reported Pelosi’s suggestion as an “un-invitation.” It wasn’t. But Pelosi did dangle a tantalizing prospect: “Consider delivering your State of the Union address in writing to the Congress” on Jan. 29.

Yes! Perfect! Definitely do that!

Read the rest at the Sacramento Bee.
Photo credit: Alex Wong/Getty Images

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Administrative State • America • Donald Trump • Immigration • Political Parties • Post • The Constitution • The Courts • The Resistance (Snicker)

Why the Citizenship Question Matters

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The Judicial Resistance has struck again. As I have explained here and here, the historic 2016 election revealed how our federal courts have harnessed their power to stifle any change on the cardinal issue of the day and the signal issue defining the division between the American Left and Right: illegal immigration.

The Judicial Resistance made its first strike two years ago, invalidating the so-called “travel ban” on multiple occasions, forcing President Trump to narrow the ban to a near-nullity. It struck again in blocking President Trump’s efforts to withdraw federal funding from states that refuse to enforce federal immigration law. And it struck yet again, just last month, when a district court issued a nationwide injunction mandating that the Trump Administration must permit the Central American caravaners to stay in the United States for as long as it takes to process their asylum claims.

Now, in a 277-page opinion issued Tuesday, Judge Jesse M. Furman of the U.S. District Court in Manhattan held that the Trump Administration’s decision to place a citizenship question on the 2020 census was illegal. Judge Furman rested his opinion on two principal reasons. One, Judge Furman claimed that the administration’s decision violated the Census Act by failing to report the change to Congress. Two, he deemed the administration’s decision to be “arbitrary and capricious” in failing to consider the extent to which this census change would lead to an underreporting of persons in immigrant households and a resulting financial and political cost for areas with significant immigration. Because the failure to consider this impact was “arbitrary and capricious,” Judge Furman concluded it violated the Administrative Procedures Act, the federal law governing the procedural requirements that administrative actions must follow.

Judge Furman’s decision is important, both for the American Left and Right, and for this reason it is almost certain to reach the Supreme Court. For the Left, the census question is important, because as William Frey at Brookings writes, the addition of the citizenship question might lead to census underreporting, thus depriving urban residents, ethnic minorities, and high-immigrant states of federal funding and political representation. According to Frey, the state most likely to be harmed from this census question would be California and the state most likely to benefit would be West Virginia.

For the American Right, the census question is instrumental in determining just how many illegal immigrants are in the country. This is a critical question, because the mainstream media continues to claim that there are nearly 11 million such persons, despite a recent exhaustive MIT-Yale study finding that the number is likely more than twice that amount. Much of the controversy over The Wall turns on determining how big of a problem illegal immigration actually is—and that requires determining precisely how many illegal immigrants are in the country. Judge Furman’s decision is a strike against answering that critical question.

In waging this attack, Judge Furman’s decision bears three indelible marks of the Judicial Resistance. Like the other cases, the census decision arose from the collusion of civil-rights organizations (such as the ACLU) and powerful liberal states (the lead plaintiff in this case is the State of New York). This is a testament to how the nation’s leading civil rights organizations and liberal judicial activists no longer operate to resist the state; they now operate in tandem with the state.

And like many of the other Judicial Resistance cases, Judge Furman’s census decision used traditionally conservative principles of legal interpretation to reach the desired political result. For example, the travel-ban decisions invoked a strict separation of powers to limit President Trump’s discretion over our borders. Similarly, the sanctuary-city decisions invoked federalism principles and the 10th Amendment to limit the administration’s power over state and local obligations to enforce federal immigration law. And Judge Furman’s decision used principles designed to reign in the administrative state to prevent the Trump administration from using the census to answer a pressing demographic question.

This should not fool anyone to believe that liberal judges actually believe in these principles or will eventually use them to curb the next Democratic president. Judge Furman’s decision, for example, refused to resolve New York State’s equal-protection claim under the Fifth Amendment’s Due Process Clause, because Judge Furman claimed that, at this point, there is not sufficient evidence to reveal a racial animus underlying the administration’s decision. On its face, this might seem like an exercise in judicial restraint. But it is, in fact, a careful legal maneuver by a skilled legal technician. Indeed, by framing the decision this way, Judge Furman was able to discuss how racist the administration is (Kris Kobach’s and Steve Bannon’s roles in the census question are discussed throughout the opinion) without opening up Judge Furman’s decision to a reversal on that ground by an appellate court.

Finally, like many of the other judges leading the Judicial Resistance, Judge Furman is a President Obama appointee, and a well-connected one, firmly entrenched in the progressive elite (his mother is Gail Furman, a wealthy Democratic party activist and donor; his father is Jay Furman, a New York City real-estate mogul; his brother is Jason Furman, Obama’s chief economic adviser in the 2008 campaign and Obama’s Council of Economic Advisers chair; and his wife is a former Columbia law professor and current head of the Heschel School).

Judge Furman’s decision might be reversed, but the impact of this ruling is permanent, as it represents yet another step in a disconcerting direction. Our elites are increasingly more concerned about those seeking to make a new life in California than those who are losing their way of life in West Virginia. Whatever one thinks about the census decision, this is not a trend any of us should be celebrating.

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Administrative State • America • Center for American Greatness • Deep State • Department of Homeland Security • Donald Trump • Government Reform • Law and Order • Post • Russia • The Constitution

The FBI Has Become Too Dangerous

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If you’re not the first lady, being alone in the Oval Office with the president of the United States is a rare occurrence. Even visiting heads of state will be accompanied by an interpreter, or an official notetaker, when they meet privately with the most powerful man in the world.

So I will never forget the day, in June 2017, when I found myself in front of the Resolute Desk, with just President Donald Trump in the room with me.

I was there for something that pertained to my job as strategist to the president—if memory serves, it was to discuss our plan to undo the 44th president’s disastrous Iran Deal—when the topic of Russia came up.

Suddenly the president stopped, looked at me, and said: “They will find nothing because there is nothing.”

Since he shared that declaration with me, good men like General Mike Flynn have been charged with process crimes, shady characters like Paul Manafort have been convicted of wire fraud, and young men such as George Papadopoulos have served time in federal prison as a result of their foolish self-aggrandizing. Yet, none of the charges made or convictions brought by Special Counsel Robert Mueller have linked the activities of the Trump campaign with the Kremlin, which of course, was Mueller’s mandate.

Two years later, at a reported cost of well over $25 million, not one charge or conviction has proven the original allegation of “Russian collusion.” At any other time, this would have led otherwise reasonable people to say: Enough! Time for Mueller and his team—a dozen of whom are registered Democrat donors—to close shop and for the former FBI director to end what President Trump justifiably has called a “witch hunt.”

Instead, the Left, and the Left’s domesticated media, have escalated their attacks.

Monday, as the president was preparing to board Marine One on the North Lawn, Kristen Welker, a member of the White House Press Corps working for NBC, actually asked him whether he is working for Russia.

This following a New York Times story, in which we learned that the FBI’s leadership initiated an investigation into the president after he fired James Comey, positing that he was, in fact, an agent of the Kremlin.

President Trump was right to call Welker’s question disgraceful. But we must go further.

First, there is the issue of facts. After two years in which Donald Trump as president has raised the defense budget, sent anti-tank missiles to the government of Ukraine, scolded NATO nations for not taking the threat from Russia seriously and encouraging them to keep their commitments to the alliance, as well as authorizing the killing of more than 200 Russian paramilitary “contractors” in Syria. How can any sane person who values the truth—and her own professional integrity as a journalist—even ask such a ridiculous and surreal question?

But there is an even more serious question, one that raises the specter of sedition at the highest levels of our republic.

As former federal prosecutor Andrew McCarthy noted on my show, “America First,” the FBI is part of the executive branch and its mandate to execute counterintelligence investigations serves one person and one person alone: the incumbent president.

McCarthy, remember, helped put the mastermind of the first World Trade Center attack, Omar Abdel Rahman (the Blind Sheik), behind bars. As he has written time and again, counterintelligence operations are not exercises in evidence gathering designed to lead to a prosecution of a crime in a federal court. They are instead secret activities designed to provide the chief executive with information on what enemy nations or inimical non-state actors are doing to the country so that the president can direct responses to the threat, be it from Soviet agents during the Cold War, or ISIS terrorists here in America today.

This is not what happened in 2017.

Instead, a rogue FBI decided unilaterally to investigate the newly elected president in order to undermine him—rather than serve the elected official who bears ultimate responsibility for the safety of all Americans. Never before in our history has this happened.

The FBI has had problems since the days of J. Edgar Hoover. But never has the seventh floor of FBI Headquarters decided by itself to launch a clandestine operation to target a newly elected president under the cover of working for an alien power simply because they wanted political revenge for their candidate losing an election. Yet this is exactly what happened. Instead of being horrified, the establishment perpetuates the outré assertions day in and day out to further weaken the president.

So what is to be done?

Given the last two years of continued assaults against President Trump by Mueller and Obama-holdovers such as Deputy Attorney General Rod Rosenstein, the confirmation of a new attorney general might not be enough.

There may be one solution that preserves the patriotic agents who are protecting the nation while helping drain the Beltway swamp: dissolve the FBI, fire all the senior political operators still in the Hoover Building, and make the 56 FBI field offices across the nation—where the real agents work—the counterterrorism, counterintelligence, and criminal investigations division of the Department of Homeland Security.

This way we may prevent the next palace coup.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: Bonnie Jo Mount/The Washington Post

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Administrative State • Center for American Greatness • Deep State • Donald Trump • Environment • Post • The Constitution • The Courts

The Celebrated Fake Frog That Is Taking Down the Deep State

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When President Trump nominated Brett Kavanaugh to the Supreme Court, the top constitutional lawyers in the country shared one predominant hope and expectation. Before the hearings, I spoke with five of the men who fought and won hard Supreme Court battles for religious freedom, property rights, and freedom of speech. All of them told me the same thing: the Kavanaugh court will take on the administrative state.

Recently, I received an email from the Pacific Legal Foundation that their hopes are coming true. It is a comic tale of frogs, mice, and deep state overreach, but far from trivial for America’s future.

President Trump, we are often told, is not a principled man, certainly not a constitutionalist. These critics mistake a habit of abstract thinking for principles. President Trump has a patriotic grasp of the essentials. He ran on the promise to appoint top quality, conservative judges, and unlike the GOP political class, he takes pride in keeping his pledge to voters over donors. Trump used the constitutional experts at the Federalist Society to draft his list of candidates, unlike the politically safe Bush appointments, which irresponsibly added to the liberal court majority.

President Trump’s appointees, Justice Gorsuch and Justice Kavanaugh, are now showing their mettle.

With liberals dominating the federal agencies and the courts, the Environmental Protection Agency’s power has grown decade by decade—that is, until President Trump appointed these two strong constitutionalists to the Supreme Court. The EPA is on the front lines of this battle because its rulings directly impact private property and economic freedom.

Without property rights, we have no freedom. The founding fathers understood that private property is the boundary which limits the tyranny of state power. As David D’Amato wrote, the leftist assault on liberty preaches that private property is inherently unjust. The sanctity of your private property has no place in their dystopia of social justice under an all-powerful state.

Enter President Trump’s new conservative majority on the Supreme Court. In the very first case of the new term, the court, with Kavanaugh taking his seat, took on a seemingly comical case that goes to the heart of government overreach.

Constitutional Ground Zero
The Supreme Court, since 1984, has been guided by the precedent that administrative regulations are the specialized work of “experts,” creating the infamous “Chevron deference,” that gives federal bureaucracies the right to create rules with the force of law but not subject to judicial review.

Ordinary people victimized by federal regulations often find little recourse in the courts. The deep state gets away with no judicial limits to their power. This is rule without law.

Politicians take advantage of this unwise court deference by writing vague laws, seemingly uncontroversial, and pass on the writing of the concrete—and at times politically explosive—details to unelected bureaucrats. Bureaucrat diktats are set above the courts. Thus, the Supreme Court’s Chevron deference throws open a wide door to government action without accountability to voters.

The impact on America has been devastating. Flying in the face of everything our founders accomplished, judicial deference to the bureaucracy allows government power to grow unchecked. And grow it has. It has meant a diminishment of our liberty and our prosperity.

Robert Alt, head of the Buckeye Institute, told me that we now have 4,500 federal criminal laws, that is, laws passed by Congress. That may sound like a lot but compare it to the 300,000 federal regulations written by unelected administrators. Bureaucratic rules are not insignificant when they carry criminal penalties. These 300,000 regulations are more powerful than any law, because no one is politically responsible for them, and the courts rarely review them.

The EPA is ground zero in the constitutional battle surrounding the rule of law, balance of powers, and limits on powers. Activists at the EPA hide behind the respect we give to scientists and our desire to protect nature and human health. They take popular, important safeguards, and pervert them into unscientific, unfair, and undemocratic power grabs. The EPA’s abuse of the Endangered Species Act is a power tool in the liberal shed that seeks to diminish property rights and limit economic activity.

Fighting a Mythical Jumping Mouse
The Pacific Legal Foundation emailed happy news about their victory against administrative overreach, “The U.S. Supreme Court gave PLF client Edward Poitevent—and all Americans—another huge reason to give thanks.”

The federal government designated this farmer’s private property in Louisiana a critical habitat for a threatened frog that does not—and cannot—even live on his farm. This species of frog hasn’t been seen in Louisiana for 50 years. Biologists stated it couldn’t live on his property even if someone put it there.

The new Supreme Court reached a unanimous decision that the EPA does not have authority to extend the definition of critical habitat to absurdity. The importance of the case is that the Court judged the issue at all. It is a significant step in taking back the power of review over the Deep State. This goes beyond the particular justice done for a single farmer facing down the EPA.

Justices Gorsuch and Thomas have signaled they view Chevron deference as unconstitutional. Joined by Kavanaugh, they are exerting a leadership role on the court.

The non-existent frog is not alone. In cahoots with activist environmental groups, the EPA has been able to define critical habitat where the endangered species does not exist and could not exist in many places, precisely in order to deprive citizens of the free enjoyment and value of their private property.

The Pacific Legal Foundation is taking on the Preble’s Jumping Mouse as the next stage in this battle.

Twenty years ago, the EPA undertook to protect a mouse subspecies at the behest of activists fighting development in a broad area south of Denver. DNA studies show the Preble’s Jumping mouse never has existed. There is no such distinct genetic subspecies.

Yet the EPA forced ranchers in Wyoming, hundreds of miles away and where even alleged Preble’s Jumping mice were never found, to do mitigation. The U.S. Fish and Wildlife Service estimates the price tag to ranchers has topped $200 million. These are not rich folks with extra money lying around in bank accounts. If PLF prevails, they will get relief. The frog case should help them.

A New Era of Constitutional Limits
Cases like this go far beyond the actions of the EPA. The untouchability of liberal rulings from the bench are based on precedence and deference. Precedence and deference shelter the unconstitutional New Deal expansion of the commerce clause to allow federal regulation of all economic activity. They also shelter Roe v. Wade.

Changing the court’s application of precedence and deference, as in the Louisiana frog case, is a building block of constitutional reform. Justices Roberts and Kavanaugh are conservative in that they make narrow rulings, try to avoid big public controversies, and build up new precedents case by case. We will not see overnight revolutionary changes. We will see a gradual restoration of constitutional limits on the government.

The assessment of their Louisiana frog victory by the Pacific Legal Foundation is jubilant: “The takeaway is a very clear, severe message the justices sent to government agencies intent on abusing their administrative powers: stop exploiting your power!”

The task will take time, but we should note and celebrate that we are on the way. Victories like this are essential if we wish to return to a nation of free enterprise and liberty.

None of this is academic. Fake frogs and imaginary mice have been powerful weapons against property rights and freedom. We are battling for constitutional rule once again. Our new conservative majority on the Supreme Court has used a small frog to take a small, but hopeful, step to restore legal limits on the power of Big Government.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

 

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Center for American Greatness • Congress • Democrats • Donald Trump • Immigration • Post • Republicans • The Constitution

Dump The National Emergencies Act

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One of the more revelatory aspects of the Trump era is how the national media, after taking an extended nap between 2009 and 2017, now are very worried about constitutional overreach by the executive branch. Presidential power-grabs—which were super cool just five years ago when Barack Obama threatened to use “a pen and a phone” to work around a Republican-controlled legislative branch—suddenly went out of style in January 2017. Obama needed to take unilateral action as a last resort, the media argued, because of those big, bad Republicans.

“Blocked for most of his presidency by Congress, Obama has sought to act however he could,” lamented the New York Times in August 2016. “In the process he created the kind of government neither he nor the Republicans wanted—one that depended on bureaucratic bulldozing rather than legislative transparency.”

But it was for our own good, insisted the Times. “An army of lawyers working under Obama’s authority has sought to restructure the nation’s health care and financial industries, limit pollution, bolster workplace protections and extend equal rights to minorities. Under Obama, the government has literally placed a higher value on human life.”

Thanks, Obama!

The former president often defended himself to sympathetic journalists. “I am not going to apologize for trying to do something while they’re doing nothing,” he boasted to George Stephanopoulos in a June 2014 interview on ABC News.

To what was Obama referring? Immigration. “The majority of the American people want to see immigration reform done. We had a bipartisan bill through the Senate, and you’re going to squawk if I try to fix some parts of it administratively that are within my authority while you are not doing anything?”

But now that Donald Trump in the White House and Democrats are in control of the House, the same rules do not apply.

Definitions Depend on Party Affiliation Now
After threatening to invoke the National Emergencies Act to fulfill his campaign pledge to build a wall between Mexico and the United States, the media, Democrats, and even some Republicans are crying foul. “I have the absolute right to declare a national emergency, the lawyers have so advised me,” Trump told reporters outside the White House on Thursday. “This is a tremendous crisis at the border.”

Trump is correct when he says that invoking the National Emergencies Act (NEA) is wholly within his presidential purview. Whether it’s a smart political move is a separate discussion, but there is little doubt he has the legal authority to stem the flow of illegal immigrants at our southern border via that statute. (John Eastman explained why last week at American Greatness.)

So, political foes are dispatching Trump to a presidential No Man’s Land, alternatively downplaying (or entirely ignoring) previous applications of the law and fabricating fictional scenarios about how future Democrats could exploit Trump’s alleged precedent—”whatifism,” if you will.

The most outlandish warning is that a Democratic president could declare climate change a national emergency and take any number of drastic measures, from shutting down coal plants to forcing the military to build wind turbines.

“If today, the national emergency is border security, tomorrow the national emergency might be climate change,” explained Sen. Marco Rubio (R-Fla.) on CNBC on Wednesday.

Perhaps these folks don’t remember that the Obama Administration declared war on carbon dioxide in 2009, paving the way to propose hundreds of billions in federal regulations with the alleged purpose of limiting carbon emissions; this included attempting to execute the Clean Power Plan, which the Supreme Court found so excessive and outside the authority of the executive branch that it took the highly unusual move of halting the EPA-imposed rule in 2016.

But if Americans now are expected to believe that the NEA suddenly is either unlawful or unconstitutional merely because Trump is president, and his action could portend a dark future of presidential authoritarianism, then the only reasonable step is to eliminate the law. Permanently.

More Than Four Decades of Emergencies
Now that the act is, for the first time in recent memory, an issue of public debate—consequently spawning a whole Twitterverse of experts—it’s fair to assess whether the 42-year-old law should exist at all. Currently we are under a state of 31 national emergencies, including one dating back to the Carter Administration. Another emergency declaration, imposed days after the 9/11 terror attacks, has been renewed on an annual basis.

According to a 2014 report by USA Today, “in his six years in office, President Obama has declared nine emergencies, allowed one to expire and extended 22 emergencies enacted by his predecessors.” This included proclaiming in 2009 that the flu was a national emergency, which allowed for waiving federal rules and set off a public frenzy for flu vaccines. Others deal with national security threats posed by Colombia, the Congo, and Yemen.

There is no doubt the law provides sweeping powers to the president. In a study published by the University of Michigan Journal of Law Reform in 2012, Patrick Thronson criticized the act as “[contrasting] sharply with the traditional conception of the United States as being a government of limited and enumerated powers.” Thronson detailed how the NEA activates “over 160 provisions of statutory law, dozens of presidential orders, and numerous other federal regulations.” This includes the use of the military. He also blasted Congress for being “oblivious” to the implications of ongoing and future national emergencies.

Applying the NEA—much like firing the FBI director or appointing an acting attorney general—is yet another presidential power that the media, Democrats, and anti-Trump Republicans would deny because the president happens to be Donald Trump. If protecting our southern border in order to stop a legitimate emergency that previous presidents also have identified as a crisis, then few, if any, events could surpass this ongoing humanitarian and security disaster that Congress refuses to solve.

If lawmakers on Capitol Hill suddenly are worried about how a Democratic president could abuse the NEA to impose drastic climate change policies or gun control, doesn’t it make sense to repeal the law now? If there is a legitimate and grave national emergency in the future, Congress and the president could address it together as need be.

Our laws are not capricious and subjective: they aren’t enforceable based on whether or not we like, or even trust, the person empowered with executing the law. Either let Trump exercise his legal authority and suffer any political consequences—or repeal the NEA. Congress can’t have it both ways.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo Credit: Getty Images

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2016 Election • Center for American Greatness • Congress • Deep State • Donald Trump • Post • The Constitution • the Presidency

Time to Put a Stop to Impeachment Talk

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A push is underway for the Democrat-controlled House of Representatives to hold a vote on whether to impeach the Republican President Donald Trump. Of course, we have been through this before, but with a majority of Republicans voting to impeach President Bill Clinton, a Democrat. It takes only a majority in the House to bring articles of impeachment, which are similar to a grand jury indictment—they are the required first step in a two-step process.

Following a grand jury indictment, a criminal trial occurs, and a unanimous jury must bring in a guilty verdict for a conviction. Similarly, following impeachment, a two-thirds vote of the United States Senate is required to remove a president. Bill Clinton survived his impeachment because only half the members of the Senate supported his removal, with not a single Democrat voting in favor of it. It is likely that the impeachment effort to remove President Trump would fail in the Senate now controlled by Republicans, but there are some other similarities and differences between the two proceedings that deserve examination and comment.

First is the essential question about what the Constitution means when it provides in Article II, section 4 that an executive official “shall be removed” following impeachment and conviction for the commission of “treason, bribery, or other high crimes and misdemeanors.”

During the course of the Clinton proceedings, I was one among 19 scholars invited to explain to Congress the historical background and meaning of the impeachment clause. In my testimony, which Rep. Henry Hyde cited when he moved the articles against President Clinton, I said: “Impeachable offenses are those which demonstrate a fundamental betrayal of public trust. They suggest the federal official has deliberately failed in his duty to uphold the Constitution and laws he was sworn to enforce.”

Clinton was credibly accused of lying to a grand jury when he denied having a sexual relationship with Monica Lewinsky, of seeking to get witnesses to give false testimony in proceedings related to a civil suit brought against him by Paula Jones, and of attempting to conceal evidence in that case. He was, in other words, accused of perjury and obstruction of justice. This was criminal behavior that, according to federal judge Richard Posner (who wrote a book on the matter slyly called An Affair of State), would have gotten anyone else a sentence of three years in a federal penitentiary. The Republicans who brought the charges against Clinton argued that this commission of perjury and obstruction of justice in matters in which he was involved was done for personal selfish purposes, and was a betrayal of President Clinton’s presidential oath to “take care” that the laws be faithfully executed.

The scholars defending the president, most notably Cass Sunstein, then at the University of Chicago and now at Harvard (and later an influential figure in the Obama Administration), argued that just as it would be improper to impeach President Clinton for a traffic ticket, it was inappropriate to bring charges related, essentially, to matters unrelated to high affairs of state. The Constitutional clause, for Sunstein, ought to be reserved for cases in which the president had utterly ignored his duties to our country in order to serve the interest of some foreign power, or clearly put his own financial interests ahead of those of the nation. To seek to remove him for what amounted—at least in the eyes of his supporters—to lying about a sexual tryst, would weaken the presidency, thus hurting the constitutional scheme of separation of powers and equality of the three branches of government. Sunstein claimed that it was the purpose of elections to remove presidents who were politically unpopular and that impeachment simply should not be a tool of partisan politics.

The Best They’ve Got
Rashida Tlaib, the freshman congresswoman from Michigan who recently told a group from MoveOn.org that she couldn’t wait to “impeach the motherf—er,” unkindly referring to the sitting president, has published an op-ed in USA Today with activist John Bonifaz. Bearing the headline, “Now is the time to begin impeachment proceedings against President Trump,” the piece is happily devoid of any unsavory epithets. Rather, Tlaib and Bonifaz lay out exactly what they believe Trump has done that constitutes impeachable offenses, to wit:

obstructing justice; violating the emoluments clause; abusing the pardon power; directing or seeking to direct law enforcement to prosecute political adversaries for improper purposes; advocating illegal violence and undermining equal protection of the laws; ordering the cruel and unconstitutional imprisonment of children and their families at the southern border; and conspiring to illegally influence the 2016 election through a series of hush money payments.

The charge of “obstructing justice,” must have to do with the firing of FBI Director James Comey, an action well within the prerogatives of the president, and concurred in by a brace of former Justice Department officials. The charge of seeking to direct law enforcement to prosecute political adversaries must reflect the chants of “lock her up” directed at Hillary Clinton’s illegal use of a personal server for State Department business, and the “cruel and unconstitutional imprisonment of children,” appears to be the same quite legal activity of border enforcement undertaken by the Obama Administration.

The “hush money payments,” are the attempted non-disclosure agreements with purported pre-presidential paramours, but it is a stretch to find them to be illegal campaign contributions. I’m at a loss even to find a purported abuse of the presidential pardon power or a violation of the emoluments clause, which latter clause was conceived to apply to those in the pay of foreign governments, and not those simply doing business abroad.

More to the point, however, it is startling that we haven’t heard much from those who, like Sunstein, cautioned against using impeachment as a means to the purely political removal of the president, since that, after all, is precisely what Tlaib and her allies in the House seek to do. #TheResistance simply has never accepted the Electoral College result in the 2016 Presidential election, and the impeachment of President Trump is their seeking a second bite at that apple. Surely, if the attempt to remove President Clinton was wrongly and politically-motivated so is this one.

Questions of Character vs. Disputes over Policy
In fairness to Tlaib and her colleagues, however, it is appropriate to seek to remove a president devoid of character, and willing to pervert the prerogatives of his or her office for personal financial or political gain at the expense of the nation or the performance of his or her required duties. I do believe that fairly characterizes President Clinton and what he did when he sought by shameful means to avoid liability to Paula Jones.

In President Trump’s case, however, all of the litany of complaints that have been lodged against him actually seem to be connected to his efforts to fulfill his campaign promises to end the divisive politics of the Obama years, and to reverse the harmful regulation, excessive taxation, and lax immigration policies of the last administration. Trump’s critics, such as Tlaib and Bonifaz, should acknowledge that their disagreement with the president is really about his policies and politics, not his character.

Controversies over political and policy matters are supposed to be settled by the election coming up in 2020, not by impeachment. Sunstein and other defenders of President Clinton ought to remind those seeking the impeachment of President Trump that they are engaged in undermining the very Constitution they claim to venerate.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo Credit: Win McNamee/Getty Images

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Administrative State • California • Democrats • Identity Politics • Immigration • Post • Republicans • The Constitution • The Courts • The Media

RINO Droppings: The Legacy of California’s Girlyman Gov

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Tani Cantil-Sakauye, chief justice of the California Supreme Court, is giving up her Republican Party registration. The cause, she explained, was the confirmation hearings for U.S. Supreme Court Justice Brett Kavanaugh.

But Cantil-Sakauye was not disturbed by the sleazy charges Democrats unleashed against the Trump nominee, which evidently she believed. Instead, California’s chief justice wondered why Republicans would bring in a female prosecutor to question Christine Blasey Ford. Perhaps to find out if her story that a drunken Kavanaugh sexually assaulted her was true or false? Though that is hardly all this jurist doesn’t get.

Last year Cantil-Sakauye wrote a letter to Attorney General Jeff Sessions and Homeland Secretary John Kelly stating: “As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests. Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.” It was all unsafe, unfair, and so on.

Sessions and Kelly replied that “stalking” has “specific legal meaning in American law,” and it was “criminal activity.” On the other hand, “the arrest of persons in a public place based on probable cause has long been upheld by the United States Supreme Court,” as U.S. v. Watson confirmed. Federal statutes authorize arrests where probable cause exists to believe that “such aliens are in violation of immigration laws.” Courthouses are not only public places, but visitors are screened for weapons, Sessions and Kelly wrote, therefore “the safety risks for the arresting officers are substantially decreased.”

Besides her apparent ignorance of the law, Cantil-Sakauye also overlooked recent cases of violent criminals who should not have been in the United States, who remained at large, and who murdered police officers and innocent civilians. These criminals include Mexican national Luis Bracamontes who gunned down Sacramento deputy Danny Oliver, detective Michael Davis and wounded motorist Anthony Holmes, an African American. In court, Bracamontes said he wished he would have killed more “motherf—ing” police officers, deployed the N-word, and told the jury “black lives don’t matter.”

Repeatedly deported Juan Francisco Lopez-Sanchez was in custody but not turned over to ICE. In July 2015, this illegal felon gunned down Kate Steinle on a San Francisco pier. The state Supreme Court is in San Francisco but the killing of an innocent 32-year-old woman did not prompt Tani Cantil-Sakauye to write a letter challenging the city’s sanctuary policies. For this chief justice, ICE agents are the bad guys.

Last week, Cantil-Sakauye describe herself open-minded on social justice issues and praised the judicial appointments of Governor Jerry Brown  as “people-centric” and “underdog-centric.” It was all about “what are we going to do about homelessness, what are we going to do about climate, what are we going to do about guns.” Reporters recalled that Republican Governor Arnold Schwarzenegger had nominated Cantil-Sakauye in 2010, but there’s a back story to that move.

According to a longtime friend of Arnold, the governor outsourced his judicial selections to his wife Maria Shriver, a Democrat insider of high standing. That would also explain other key choices.

State director of finance is an important position that merits an experienced economist with a Ph.D. or a master’s degree. Arnold’s pick was Ana Matosantos, a Puerto Rican with a B.A. in political science and feminist studies. Besides the meager qualifications and lack of experience, her hiring also defied state law, Proposition 209, which forbids racial and ethnic preferences in state employment, education, and contracting.

In 2011, Matosantos was busted for drunk driving and offered to resign but incoming governor Jerry Brown kept her on the job. Covered California, the state’s wholly owned subsidiary of Obamacare, picked up Matosantos for $20,000 a month. Her wealthy family has been embroiled in a conflict of interest case in Puerto Rico, but incoming governor Gavin Newsom has now hired Matosantos as his cabinet secretary.

Meanwhile, Tani Cantil-Sakauye was not California’s first female chief justice. During the 1974 election campaign, Rose Bird served as Jerry Brown’s campaign chauffeur. She was only 40 and without judicial experience but Brown picked her for chief justice.

In 10 years as chief justice, Bird heard 64 capital cases and never voted to uphold a death sentence. Even for staunch death-penalty opponents, including those on the court, it defied belief to think that every case was unfounded. The cases included that of Theodore Frank, duly convicted of kidnapping, torturing, raping, murdering and mutilating two-year-old Amy Sue Seitz in 1978.

On November 4, 1986, California voters ousted Rose Bird by a margin of 67 to 33 percent. California voters also ousted Justices Cruz Reynoso and Joseph Grodin, both Brown appointees, who sided with Bird on the death-penalty cases.

In similar style, Tani Cantil-Sakauye keeps quiet when racist criminal illegals murder Americans but gets agitated when ICE agents arrest criminal illegals in courthouses. She also finds it disturbing that anybody would question the wild accusations against Brett Kavanaugh. Tani Cantil-Sakauye has changed her registration from Republican to “no party.” A better description for this Rose Bird clone might be “no justice, no peace.”

Photo credit: NBC Los Angeles

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Administrative State • America • Big Media • Book Reviews • Center for American Greatness • Deep State • Democrats • First Amendment • Law and Order • Post • Progressivism • The Constitution • The Courts • The Left • The Media

The Mental State of the Ruling Class

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In some ways, Todd Henderson is living the dream. He has worked as an engineer, a management consultant, a practicing lawyer, and ended up as a professor at his alma mater, the University of Chicago Law School, focusing on business regulation and securities law. Now he can add mystery novelist to his curriculum vitae with his debut thriller, Mental State.

The story, as well as the publication’s reception, sheds light on the sometimes toxic culture of our elite and their institutions. For all the talk of “engagement with ideas” and “encouraging critical thinking,” elite universities are more rigid and conformist today than perhaps any previous time in our history—yes, including the dreaded 1950s.

Henderson’s thoughts echo those of another University of Chicago professor who some 30 years ago noted we were experiencing the Closing of the American Mind.

By Chicago’s standards, Henderson is a man of the Right. In reality, he is more in keeping with the law school’s traditions of law and economics and libertarianism, made famous by two prolific and influential emeritus professors, Richard Posner and Richard Epstein. Unfortunately, Chicago is now becoming less distinguishable from peer institutions, not least in its demand for ideological conformity.

Mental State, as well as its tortured path to publication, exemplify this unfortunate trend.

Art Imitates Life
A good mystery or thriller, while not an account of actual events, is fundamentally honest. It presents believable characters and explores their motivations, problems, skills, and flaws. As such, Mental State is a good book, and it will prove to be of particular interest to lawyers, especially those uneasy with the “deep state.”

The story revolves around the supposed suicide of a law school professor, Alex Johnson, who resembles the author in important ways. He teaches at an elite Chicago law school, Rockefeller University, a facsimile of the University of Chicago, right down to the Bauhaus-style law school building.

What appears at first to be a suicide turns into a mystery, as the professor’s FBI agent brother, Royce, suspects the local police are missing something. He goes outside the normal chain of command to learn, not only about the death of his brother but also more about his brother’s life.

The professor is white collar, professional, bookish, surrounded by others of the elite, and variously reflects or rejects their styles. Considering the obvious resemblance to the author, the portrayal is brutal at times, exposing the deceased as flawed and venal, especially in his initial lack of courage in the face of institutional pressure. He is led astray not only by his ambition but also by the modest glamour that comes with being a law professor, such as the international conferences and hero-worshiping students.

His brother, by contrast, has common sense and tenacity, as well as no small measure of physical courage. He is an agent of the system, but he also really believes, as cops often do, in justice and in doing the right thing. The mid-level lawman has a corresponding blind spot to the gap between the ideology of the managerial elite—whose chief qualification consists of credentials bestowed by institutions like the fictional Rockefeller—and the gritty, Machiavellian reality of highly placed ideologues.

As if a suicide and the possibility of murder were not dark enough, the story also involves tolerance of the most grotesque double standards. The liberal president, who vaguely resembles Hillary Clinton, aims to appoint a suitably progressive jurist to the Supreme Court. The potential nominee has the right kind of credentials to ensure that he and the president make history. He would be the first Asian-American justice, has had a brilliant career, is a reliable progressive, and is connected from childhood to the late professor.

But he has a secret, and its exposure would be devastating to his candidacy. Was the professor killed as part of a cover-up?

The book ends up exploring more than one kind of hypocrisy. We learn how the elite looks out for its own and cultivates the future leadership class, selected chiefly for a combination of their academic pedigrees and ethnic diversity. Failing grades can be changed, particularly when they would damage the narrative. Indeed, even high crimes can be overlooked, so long as the cause is at stake. The individual and truth mean little compared to the cause.

This diversity bean-counting and concern for ideological goals have a dark corollary; underprivileged or not, inconvenient people are quickly and callously victimized when this serves the broader goal of advancing the agenda. One is reminded of the crude smear campaign levied against Clarence Thomas, whose black ancestry did little to deflect the mob of leftists that are usually so ostentatiously concerned for diversity. Among the managerial elite, the only kind of diversity that proves fatal, whether to one’s career or one’s life, is diversity of thought.

One of the more interesting aspects of Mental State—which was authored before Donald Trump descended the escalator, but only released this year—is the exploration of an emergent human type: the careerist, left-of-center, deep state bureaucrat. Echoing Peter Strzok, Andrew McCabe, and James Comey (himself a Chicago alumnus), a clique of political and law enforcement insiders at the highest levels of the federal government evince a disturbing willingness to bend any rules to serve the president in her pursuit of the right kind of Supreme Court appointee. After all, in the words of one of the fixers, “Our whole agenda would be in peril. . . . We just couldn’t let that happen.”

This is all fiction, of course. But it is a believable story of what might happen and how. We know strange things are afoot, and not only in the shady origins of the Steele dossier. Consider the aggressive efforts to sink a boy scout like Brett Kavanaugh, coupled with the indifference and slap-on-the-wrist treatment of Bill Clinton and Jeffrey Epstein. We have a powerful elite, concerned not only with ideological goals but equally with shoring up its own power and immunity from oversight.

The strong relationship between elite schools and the upper echelons of the nation’s political and business structures cannot be overstated. The Supreme Court at the moment is made up exclusively of graduates from Yale and Harvard law schools. Facebook’s founders and executives hail from Stanford, Harvard, Yale, and similar institutions. The culture of those elite schools is now becoming the culture of our tech giants and high government officials, up to and including their increasing indifference to free speech, their separation from the country’s more conservative or traditionalist interior, and their Draconian enforcement of the party line.

The most notable change from yesteryear’s elite is that today’s managerial elite makes no distinction between thoughts and actions. For them, good character is demonstrated by expressing the right kinds of opinions, and this low bar allows for extremely low behavior. This inversion of traditional morality ends up being the meta-narrative of Henderson’s novel, which begins as a thriller-mystery but ends up being an important critique of the spirit of the age.

Life Imitates Art
While it has been addressed elsewhere in some detail, one might imagine that a subversive work such as this did not receive the most welcome reception. Mental State was at one point unceremoniously yanked from Amazon and all pre-orders were lost. Amazon, like Facebook, Google, and the other tech monopolists, has decided to leverage its power not only for profit but also for progressive ends.

In addition, the author has received various threats, not only for the book but for making observations that ran counter to the acceptable narrative. Affirmative action—a theme of the plot and a source of controversy earlier this year involving Henderson’s criticism of Justice Sotomayor—depends, above all, on not noticing things. The elite not only must permit lower standards in the service of its group diversity, but its members and the general public must pretend that this is not happening at all. We’re just supposed to conclude the elite as a whole are what they tell us they are: “The best of the best!”

While those struggling in the business world may find much to envy in the protections of tenure, those protections are not what they used to be, particularly for conservatives, who make up a vanishingly small percentage of professors at elite institutions. Worse, they must self-censor if they are to avoid a sometimes violent and always insolent cohort of activist students, the cat’s paw of the equally leftist deans and professors. A sizable number of conservative academics publish their most interesting thoughts using pseudonyms.

This is not just melodrama. What is happening at these schools matters because it is not confined only to universities or at least not for very long. Universities are “beta testing” what will soon appear in the business world, in government, in the military, and in courts of law. This includes the labeling of nearly any right-of-center view as “hate speech,” the use of threats and intimidation against iconoclasts, and the Soviet-Style replacement of due process with “class justice,” as exemplified by the anti-truth formula “believe all women.”

Legal Realism Has Reached Its Logical Conclusion
Henderson and I were students at the University of Chicago’s law school around the same time. Compared to Harvard and Yale, Chicago was something of an oasis, a place of diverse views, vigorous debate, and rigorous scholarship. Scalia taught there for a time in the 1980s, but so did prominent liberal academics, Catherine MacKinnon and Cass Sunstein, as well as then-state-senator Obama. More recent events, including the reception of Mental State and a student-led attempt to kick conservative groups off campus, suggest the monoculture of other elite schools have started to undermine the unique culture of Chicago’s law school.

The roots of these elite law schools’ degradation may have deeper roots in what initially made them so influential. In the middle of the 20th century, each of these schools embraced the cutting-edge approach of legal realism to one degree or another. The alternative to legal realism is what most people think of when they think of law, sometimes called formalism. Formalism still exists in the world of practice, on the bar exam, in court, and at most schools, where the degree leads not to the Supreme Court, but rather the ranks of workaday practitioners. Formalism counsels that law is a closed and self-referential system, the careful and honest study of which can yield, more or less, correct answers to legal questions. It treats law as its own idiom, distinct from opinion, politics, or private morality.

Legal realism—similar to Marxism—suggests that all of this is a mask, an ideology. In its descriptive sense, legal realism teaches that law exists to serve the particular group in power and, by implication, to harm the socially and economically marginal. In keeping with the Progressive Era from which it sprang, legal realism also has a normative aspect: courts, lawyers, and legal educators should aim to fashion legal rulings and legal minds in order to advance the “correct” progressive agenda. The strong inculcation of “realist” views is the chief purpose of Chicago’s famous 1L course, Elements of Law.

Such a vaguely cynical point of view pervades elite legal education. It’s how a 200-year-old Constitution can be tortured to find au courant rights to gay marriage and abortion, while disregarding hoary guarantees like the right to bear arms. Wordy legal opinions mask this reality by design, appearing on the surface to involve the careful weighing of precedents and the precise applications of five-part tests.

But one may safely assume legal realists know the score; after all, everything in their education told them the law is just a tool, not an inherent limitation upon both the governed and the governors.

Legal realism planted the seed that grew into the contemporary decadence of the law’s elite ranks. After all, if all the robes, oaths, and judicial opinions are just a mask for the real reasons things are done—advancing progressivism—then perhaps other more egregious deviations from the formal constraints of the law may be authorized. It all comes down to the seductive lure of power masquerading as higher order wisdom and sophistication, a combination of “the end justifies the means” and “everyone is doing it.”

One thing these elite schools do undeniably well is select for intelligence. Through LSATs and undergraduate grades and thousands of applicants for comparatively few slots, the elite schools gather truly brilliant young people from every corner of the country and then dispatch them to the centers of power: New York, Los Angeles, Washington D.C., San Francisco, and Chicago.

The slow decline of the nation’s institutions and the increasing cleavage between the governed and the elite suggests that our governing elite should be chosen and educated in a different fashion.

Law and governance are not only about intelligence but also about character. But very little in the selection process for elite law school distinguishes the wise and the good from the merely clever. Worse, the pervasive “realism” of these institutions encourages the least mature and malformed characters to also pursue naked power. The product of a Yale or Chicago is far more likely to resemble the power-hungry and deceptive Mark Zuckerberg or James Comey than an Atticus Finch.

“Who guards the guardians?” The age-old question of Cicero does not suggest an easy answer, but one answer is the law, properly understood as containing limits. Mental State shows the pit into which a self-satisfied, clever, arguably well-intentioned, but ultimately immoral, elite may sink when the law is viewed not as a restraint, but as a mere mask. And, more frighteningly, Mental State asks what kind of ugliness we may encounter when we dare to look behind the mask.

Correction: An earlier version of this article misidentified the form of transportation Donald Trump used ahead of making his announcement in 2015 to run for president. The editors all know it was an escalator. The managing editor has been flogged.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

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America • Post • Pro-Life • The Constitution • The Courts • The Culture

Kavanaugh: Too Soon to Be Reading Tea Leaves

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Justice Brett Kavanaugh. Savor those words: They are the culmination of a harrowing ordeal—for Kavanaugh, his family, and the entire nation.

At his despicable confirmation hearing, Kavanaugh was subjected to a pummeling more brutal than the gauntlets faced by Robert Bork and Clarence Thomas, combined. Kavanaugh’s replacement of moderate Justice Anthony Kennedy, long the fickle swing vote on the sharply divided court, was expected to create a conservative majority for the first time in decades. Understandably, therefore, court watchers have been monitoring Kavanaugh closely to discern any shift in the court’s direction.

Good grief. He’s only been sitting on the court for a couple of months—still learning where the bathrooms are. All the speculation about how Kavanaugh will vote and what his judicial philosophy will look like is premature.

Ocean liners don’t turn on a dime, and neither do decades of constitutional jurisprudence. Give the man a chance to write some actual opinions or join in other justices’ opinions on the merits. As someone who has been harshly critical of the Supreme Court, I believe it is too soon to be disappointed in Kavanaugh—or, for that matter, to draw any meaningful conclusions about his alignment on the court. What we know is that he served with distinction on the D.C. Circuit for over a decade.

My esteemed Law & Liberty colleague, Northwestern University law professor John McGinnis, recently decried Kavanaugh’s apparent attitude toward stare decisis—the precedential weight of the court’s prior rulings—based on a question Kavanaugh asked at oral argument in an important double jeopardy case.  McGinnis fears that Kavanaugh may be too cautious regarding the court’s overruling of previous decisions, declining to do so unless they were “grievously wrong.” McGinnis’s concerns may prove to be well-founded, but I’m willing to give Kavanaugh the benefit of the doubt until I see how he actually votes in the case, Gamble v. United States. Until then, observers are simply reading tea leaves.

Another kerfuffle, involving the court’s discretionary decision not to hear a case (the denial of certiorari, to be precise), has provoked widespread commentary about Kavanaugh’s willingness to overrule the notorious decision in Roe v. Wade.  

This is silly. The court typically receives over 8,000 cert petitions (requests for review) each year, but only accepts review of about 80 to 100 of them. In other words, the court decides to hear only one in 100 of the cases submitted to it for review. Roughly 99 percent of the cases are rejected. The denial of review is not a ruling on the merits, does not signify the court’s agreement with the decision below, and is generally made summarily—without any written opinion by the court. Four of the nine Justices have to agree to “grant cert” (or accept review) in a case.

The recent spate of conjecture surrounds Gee v. Planned Parenthood of Gulf Coast, a decision from the Fifth Circuit raising a technical—but important and contentious—legal issue: whether Medicaid recipients have a private right of action to challenge a state’s determination of “qualified” Medicaid providers under a federal statute.

The case was fraught with political implications because it arose in Louisiana, where the state had removed Planned Parenthood as a state Medicaid provider due to that organization’s (and its affiliates’) involvement in the illegal sale of fetal organs and fraudulent billing practices. The case, while not about abortion rights per se, involved the nation’s leading abortion provider and concerned the rights of individual Medicaid patients to bring suits challenging the state’s decision to remove Planned Parenthood as a provider.

The federal courts of appeals are split on the legal issue raised by Gee, which is one of the factors the court normally uses to determine whether to grant review.  What made the denial of review in Gee noteworthy is that Justice Clarence Thomas—joined by Justices Alito and Gorsuch—issued an unusual, four-page dissenting opinion explaining the importance of the issue and implicitly criticizing the court for declining to grant review. Thomas is generally regarded as the most conservative justice on the court, with Alito and Gorsuch not far behind. The dissent seemed to be directed at one or both of their Republican-appointed colleagues, Chief Justice John Roberts and the newly-seated Justice Kavanaugh. Thomas’s dissent could be interpreted as scolding Roberts and Kavanaugh for timidity in not voting to grant review, going so far as to contend that the court was “refusing to do its job” for political reasons:

Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background. The Framers gave us lifetime tenure to promote “that independent spirit in the judges which must be essential to the faithful performance” of the courts’ role as “bulwarks of a limited Constitution,” unaffected by fleeting “mischiefs.” . . . We are not “to consult popularity,” but instead to rely on “nothing . . . but the Constitution and the laws.” . . . We are responsible for the confusion among the lower courts, and it is our job to fix it.     

Commentators are reading all kinds of silly things into Kavanaugh’s failure to join Thomas, Alito, and Gorsuch in granting review in Gee: he’s aligned with the liberal bloc, he’s going to be a moderate like Kennedy, he won’t vote to overrule Roe v. Wade, he’s been intimidated by the opposition to his confirmation, he’s lying low, he’s under the sway of Roberts, he’s unwilling to jeopardize the institutional legitimacy of the court, and so on. We don’t know why Kavanaugh didn’t join his colleagues. Absent the unusual dissenting opinion, which strikes me as not-very-collegial, we wouldn’t even know how many justices voted in favor of review, let alone who.

Give Kavanaugh a chance to develop a record on the court before judging him. Thomas has been on the court for nearly three decades, Alito since 2006. Gorsuch, who assumed the High Court bench in 2017, is on his second term. Each of these justices has developed, and exhibited, a distinctive profile on the court. Kavanaugh hasn’t . . . yet.

There are many possible reasons why Kavanaugh felt Gee wasn’t deserving of review, out of the many thousands of cases seeking to be heard by the court. Justices don’t have to explain why they didn’t grant cert to the 99 percent of cases they reject. Until Kavanaugh has produced a track record of rulings on the merits, trying to make sense of his way of thinking by scrutinizing his questions during oral arguments or his votes on cert petitions will produce nothing more substantial than a fortune teller’s divinations, an astrologist’s celestial insights, or the reading of tarot cards.

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Administrative State • America • Congress • Conservatives • Deep State • Democrats • Post • The Constitution • The Courts

Reasserting Self-Government and Sovereignty Won’t Be Easy

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We are all aware that our politics is broken. There is more hate dividing Americans than in recent memory, and especially is there corrosive ire directed at our president and those he has appointed, particularly to judicial office. If our politics is riven, however, the cause may be deeper, and it may lie in a division over the nature of our law.

For almost two generations our law schools have been dominated by the theory, usually labelled “legal realism,” that law is inherently uncertain, and that it is, essentially, nothing more than the will of those in power, whether they are legislators or judges.

One emerges from law school with a skepticism about whether there really is any such thing as the rule of law, or whether, instead, law is constantly recreated and modified by judges doing what they can to ameliorate the still-existing injustices in American society.

The paradigm cases for many lawyers and law students are Brown v. Board of Education (1954), in which the Supreme Court unanimously ordered an end to state-mandated racial segregation in the public schools, and Roe v. Wade (1973) in which a 7-2 majority declared that there was a Constitutional right to terminate pregnancies before fetal viability.

Both of these decisions flew in the face of existing precedents, and both, whatever their merits as advances in the cause of social justice, tended to reinforce the view that it was inevitable and right that justices made law rather than simply interpret it. A few sober voices in the academy and on the bench recognized that our historic claim to be a nation governed by laws and not men was at risk, but in the excitement of possible reform and eradication of discrimination these protests were generally ignored.

The heroes of the law and the legal profession became men like Earl Warren and Anthony Kennedy—those who refashioned constitutional rules to accord with their personal ideas of fairness and equality. What happened in the courts, really, was part of a broader phenomenon dating to the Progressive period and brought to fruition in the New Deal with the triumph of the belief that experts, particularly those in the federal government, could refashion American society in a more equitable and just manner. This led to the rise of what is now generally called the “administrative state,” where Americans are governed not by their elected representatives, but by an elite bureaucracy operating with considerable discretion and very little legal control.

The Elites and the Bootlicker Hacks Strike Back
The election of Donald Trump, we are coming to understand, represented a reaction on the part of ordinary Americans, those whom Kurt Schlichter calls “militant normals,” and Hillary Clinton called “deplorables,” to the loss of what they believed to be their constitutionally guaranteed right of self-government. When Donald Trump urged that he be given a chance to “Make America Great Again,” his supporters understood he was promising to restore the rule of law and put an end to the usurpations of the federal leviathan.

It is no wonder, then, that the administrative state (or the “deep state,” as many of Trump’s supporters call it) struck back, and thus the appointment of a special counsel, Robert Mueller, with a mandate, really, to undermine and ultimately to destroy the Trumpian threat to government by elite technocrats.

The attack on the president is not conducted simply by elites who still control the levers of the bureaucracy. Prominent Democrats, sensing an opportunity to regain power they have lost in recent elections, have determined that the disgraceful political tactic of branding the Republican president as a corrupt and oligarchic racist (with the new spin of being a Russian puppet) might profitably be employed in the effort to enlist the mainstream media in this coordinated enterprise of destroying the threat to their hegemony.

Mueller, the Steele dossier, the corrupt activities of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, Sally Yates, the Clintons, Susan Rice, and others are all signs of this struggle, but it is important to see all of this for what it is—a flaw in the theory of progressive politics.

Progressives believe that if only a little more expert tinkering can be done, an earthly paradise is within reach. This explains the constant effort to pass campaign finance reform legislation, for example, which has actually created a web of incumbency protection regulations carefully calculated to hurt outsiders such as the president, who now finds himself enmeshed in a dubious assertion of violating those regulations by payments to purported paramours.

A Hell of Our Own Making
Setting aside the Orwellian implications of our campaign finance regulations (and many of the other suspect laws to which the special prosecutor has had to resort) which have resulted in a situation where virtually anyone can be the subject of a federal prosecution, we ought to recognize that it is time to reject the belief that all we need is more law and regulation to produce the just society.

The late acerbic Grant Gilmore—a Yale law professor, no less!—was quite correct when he remarked, “In heaven there will be no law, and the lion shall lie down with the lamb . . . In hell there will be nothing but law, and due process will be meticulously observed.” We are now in Gilmore’s hell, one of our own making.

We cannot legislate or regulate our way to nirvana, Valhalla, or Utopia, and what the federal leviathan tends to create is a corrupt class of political parasites, demagogues, and miscreants. Exhibit A is the team of Mr. and Mrs. Clinton, as Peter Schweitzer demonstrated in his book, Clinton Cash. This is why the framers disdained the idea of professional politicians, and the election of a non-politician, Donald Trump, as President is a sign that many Americans still understand the wisdom of the framers’ insight.

With the Democrats about to be in charge of the House of Representatives, with its attendant subpoena and investigative powers, we can expect that party—the party of the bureaucracy, the deep state, and regulation—to do all in its power to prevent the Trumpian Counter-Reformation from succeeding. With the mainstream media behind them, and with the still-powerful prerogatives of the deep state at their command, they will be positioned to threaten impeachment of the president, and, in any event, will be able to harass and hound him in innumerable ways.

We are, then, in the midst of a constitutional and legal crisis, and in a battle for popular sovereignty itself. In a world in which government by impersonal, entrenched, and isolated bureaucracies is increasingly common, this country once again has an opportunity to preserve our position as a bastion of liberty and freedom. This will only happen, however, if the American people themselves resist those who would wrongly use tainted legal institutions to preserve their power and influence.

The framers understood that ultimately the constitutional scheme they bequeathed us would only survive if the American people possessed and employed the virtue necessary for self-government. That virtue must now be used properly to restore the rule of law, to eradicate the corruptions of the deep state, and to return control over their lives to the American people themselves.

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