What Law Did He Adjudicate?

District Judge John Bates has ordered the government to restart the Deferred Action for Childhood Arrivals (DACA) program.  The DACA law was never passed.  Congress declined to pass the DREAM Act so President Obama issued an executive order for the government to enforce immigration laws as if Congress had passed a watered-down DREAM Act.  Let us ignore the legality of the president enforcing a law that was not passed and accept that the executive order was a temporary workaround.  However, executive orders are entirely under the discretion of the sitting president.  Obama countermanded many Bush executive orders and Trump can do the same with Obama's executive orders.  The president is not bound by the executive actions of his predecessors.  There is no law for a judge to rule upon.  He is ruling upon discretion that is completely in the hands of the executive branch.  Unless Congress has passed a law that changed the discretion since Obama implemented DACA, the court has no role if Trump used that same discretion to eliminate the program.  This is obviously judicial overreach and will clearly be overturned on appeal.  This is judicial activism.

The Judiciary's Class War

This Glenn Reynolds' pamphlet posits that the US is divided into two classes: Front Row Kids and Back Row Kids.  The Front Row kids are "mobile, global, and well educated."  Back Row kids are more religious, not as well educated, and usually live near where they were born.  Those who become judges are almost exclusively Front Row kids and are likely to rule with a Front Row kid bias.  He lists a variety of rulings over the decades that have favored Front Row attitudes over Back Row views.  He holds that this is a problem.

 

The Front Row kid bias is a fairly new phenomenon.  Justices were once drawn from a variety of sources but now are almost exclusively graduates of Harvard or Yale (Ruth Bader Ginsburg attended Harvard but graduated from Columbia).  Hmm, this reminds me of blogs I've written about the Presidency and the Senate.  There is entirely too much elitism in the government today.  To resolve this problem, Reynolds holds that a wider net should be cast for potential nominees, not just the Ivy Leaguers.  Also, the justices should be made to ride the circuit again.  At one time, justices would serve on circuit courts between sessions; this would give them a better sense of the rest of the country rather than just the echo chamber of the East Coast Corridor.  Another thought is to make the judges an elective office, which would require an amendment.  He offers a pair of rulings that would have resulted in a very effective attack ad in an election.

 

It is a short read and available on Amazon.  Recommended.

 

Travel Ban Approved, Mostly

Surprising no one who read the law and the 'travel ban,' the Supreme Court largely brushed aside the decisions of the 4th and 9th Circuit courts, allowing some exceptions to stand until the court is able to hear arguments in its next term.  Of course, the 120 day ban will have expired by then so it is somewhat moot.  The interesting thing to me is that I, a humble blogger with no legal training, was able to render a Supreme Court-level decision whereas numerous federal and appeals judges, with many decades of legal education and experience among them, were not.  Why is that?  The law itself, as discussed here, is not difficult to understand.  The judges who ruled against it had abandoned the judiciary and joined the #Resistance.  They ruled not upon the letter of the law but upon what they inferred from Trump's campaign statements.  Lady Justice removed her blindfold and blanched when she saw Trump.  This is how a trusted institution ruins itself.  If the law can so readily be interpreted in two diametrically opposed ways, we cease to have a rule of law.

Undermining the Law

First Judge Robart and now the 9th Circuit Court of Appeal have ruled against President Trump's executive order that restricts travel from 7 terror hot-beds.  Arguments against the order rest on due process, equal protection, and First Amendment religious protections.  I did not realize that Constitutional rights extended into other countries.  We need to start toppling a lot of governments in order to make sure these rights are observed globally.  Or maybe these rights aren't conferred until the foreign national books a flight to the United States.  Interesting and diverting as these issues may be, judges are supposed to interpret the law.  What does the law say?

8 U.S. Code § 1182 - Inadmissible aliens

(f) Suspension of entry or imposition of restrictions by President

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

Legalese is usually an ambiguous mess - the better to let unelected bureaucrats and judges to implement their policy preferences - but this is surprisingly clear.  Would a 90 day travel ban on aliens from 7 countries fit the above language?  Clearly.  More interesting, there is no check on his ability to make this proclamation.  If the president deems it appropriate, it fits within the law.  It doesn't take a law degree to interpret this.  If the Rule of Law was taken seriously, Robart would have dismissed the case.

Throughout the Obama administration, I was frustrated that the Republicans refused to oppose the president when he went beyond his Constitutional authority  (e.g. implementing the Dreamers Act despite the fact that Congress failed to pass the legislation, bailing out car companies even though Congress voted down the bill that would allow him to do so, rewriting the Affordable Care Act, etc.).  They offered anemic resistance, often leaving their best tools (e.g. power of the purse) unused.  With Trump, we have the opposite extreme.  So desperate to oppose him at every turn, the left is beclowning itself.  The media are jumping at shadows (e.g. Trump Dossier, Trump may assassinate Press like Putin) and shrieking with panic on a daily basis.  The career bureaucrats are leaking his every phone conversation, setting up secret societies to oppose the boss that the people elected, and stonewall fact-finding efforts by the administration.  The judiciary has now joined these crazy antics with rulings that are based not on a sober reading of the law but on a desire to oppose a president with whom they disagree.

Where the Republicans were spineless and timid in opposition, the Democrats are mindless berserkers, not unlike the rioters in Berkeley last week.  The Republicans would do well to emulate some of the fiery passion and steadfast determination of the Democrats (Democrats will resist tooth and nail) while the Democrats would benefit from the calm rationality of the Republicans (Republicans never riot).

Such obviously political rulings only serve to harm the judiciary.  The rulings have rewritten the limits of a clear statute.  In an effort to oppose, judges are undermining the rule of law.

Marriage Matters

As mentioned before, I have no qualms about people living in committed relationships, whatever form that may take.  But the Gay Marriage debate is about gaining a change in law with which to bludgeon those who disagree.  Will it become bigotry for the Catholic Church to refuse to perform marriage ceremonies for same sex couples?  Probably.  Will there be lawsuits?  Certainly.  We have already seen religious hospitals stripped of conscience exemptions with regard to abortion thanks to Obamacare.  We’ve seen Catholic adoption centers close up shop rather than be required to place children with same sex couples.  It is pretty obvious how this will play out if the Supreme Court declares gay marriage to be a Constitutional right based on the Equal Protection clause (I suspect the men who wrote that amendment in the 1860s would be surprised that they had enshrined gay marriage into the Constitution).  This is all the more interesting since the federal government required the Mormons to outlaw polygamy in order to gain statehood.  If we say that any two people can marry – doing away with the state interest of procreation – then why not 3 people?  The basis for two in a marriage is because there are two sexes.  If both need not be represented, then why limit marriage to two people?  If love is the only prerequisite, then marriage becomes whatever any combination of loving people want to call it.  Again, that’s fine with me as long as these same people tolerate those who disagree.  But that’s not going to happen.  Failure to embrace gay marriage is already being painted as bigotry.

So, what should happen with the two cases: California’s Prop and the Defense of Marriage Act (DOMA)?  On Prop 8, the court should let the vote of the people stand.  The country is clearly moving in the direction of allowing same sex marriage (i.e. those who oppose it are old and those in favor are young, wait a few years and it will be approved by voters).  If the court allows it to be struck down, it is negating the voting rights of the people and taking us further down the path of juristocracy (why bother voting if the courts will just overturn it to their preferences?).  In any case, marriage is a state issue and the Feds have no place in it.  As for DOMA, the Feds have no say in marriage and it should be struck down.  The federal government needs to respect the Tenth Amendment, which says all rights not DELEGATED to the federal government are reserved for the state or the people.  Nowhere does the Constitution provide the feds with marriage law authority (I looked!).

Perhaps the best thing that state governments could do would be to repeal laws regarding marriage.  The purpose of marriage laws was to 1) encourage procreation to keep the population growing and 2) force men to support their wives and children.  Neither of these applies to same sex couples.  The laws are antiquated and often contradicted by other laws (e.g. the marriage penalty in tax law – you get more money back if you are just living together).  Women are more likely to be college educated than men, so they can take care of themselves a heck of a lot better than when these laws were first passed (this is doubtless part of the reason why we see an increase in single mothers).  If the states get out of the marriage business, everyone is free to do as they please.  Everyone can sign contracts and powers of attorney and such to deal with what marriage law did, thus making the law entirely disinterested in family composition but still providing law to enforce the ‘marriage’ contract.  That’s liberty!

Respecting the Constitution

This is a reprint from my old blog, first posted 6 years ago.

In the 19th Century, the Temperance Movement gained considerable steam and worked its way through America.  The goal was to end the evils of drunkenness by banning alcohol.  After more than a century of effort, the various Temperance groups achieved great successes in towns, cities, counties, and even states but there was still work to be done.  It was time to go national.  However, there was a problem.  The Constitution offered no authority for the Federal government to outlaw or restrict alcohol; that was a state-issue.

The Temperance folks were not to be denied.  There was a way around that pesky problem and it was provided by Article V of the Constitution.  They could amend the Constitution.  The 18th Amendment was proposed in the summer of 1917 and ratified less than 2 years later.  Starting in 1919, the US government had the authority to restrict alcohol and Prohibition commenced.  Though alcohol consumption in the US was dramatically reduced (by roughly two-thirds if I recall correctly), the resulting crime of bootleggers – especially violence like the St. Valentine’s Day massacre – was viewed as an unacceptable price.  Thus, the 21st Amendment was ratified and the alcohol flowed again in 1933.

You might ask, "What's your point, Dave?"  The point is that in order for the Federal government to outlaw a substance - alcohol - it was necessary to amend the Constitution.  This all happened in the days prior to rampant judicial activism so the Constitution wasn't a "Living Document" yet.  So, my question is this: on what basis does the Federal government outlaw any other substance?  I find no amendments granting the Federal government the authority to ban marijuana, cocaine, or anything else.  Where did they get this new found power that required an amendment for alcohol?

The purpose of the Constitution was to limit the authority of the Federal government.  The Founders had experience with an overbearing monarch and didn't want a repeat performance.  They wrote the Constitution to give the Federal government a limited role, mostly with regard to foreign policy and interaction among the states.  In our era, we have forgotten this.  Government has stuck its fingers in pies where it has no Constitutional authority to do so.  However, since most people are ignorant of the Constitution, there are few who seek to hold government to account.

From my reading of the Constitution, I can find no authority for Social Security, Medicare, Education, Drugs, Media (e.g. NPR, PBS), et al.  Whenever I make this point, it is inevitable that the ‘General Welfare’ clause is cited as a catchall.  Well, let's see what James Madison, Father of the Constitution, thought of General Welfare: 

With respect to the two words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. If the words obtained so readily a place in the "Articles of Confederation," and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted.

It appears that James Madison is on my side of this argument.  The Temperance Movement respected the Constitution and made the effort to amend the document.  Now, we no longer respect the document and just amend it on the fly through judicial rulings.  It is clear that we have drifted from the belief that the Constitution was meant to limit government.  Today, the government does many things that the Framers never intended and the document doesn't condone except when read by activist judges and elected officials who neglect their oath to uphold the Constitution.

Judicial Activism

Yesterday, the President said it would be an 'unprecedented' case of judicial activism if the Supreme Court were to strike down the Affordable Care Act as unconstitutional. There are a couple of problems here. First, the court regularly strikes down laws passed by Congress, so there is nothing unprecedented. Second, he and I differ on the definition of judicial activism.

Judicial activism is when the court legislates from the bench. For instance, a judge in Missouri ruled that taxes would be raised and how the money would be spent for a Kansas City school district. That was activism. In Roe v. Wade, the court not only struck down a Texas law but wrote a new abortion law in its ruling for the country which stands to this day. On the other hand, if the court simply strikes down a law, that is not activism. If Congress passed a law and the President signed it that all Americans must wear green clothes, would it be activism for the Supreme Court to strike it down as unconstitutional? Obviously not. Now, if the court struck it down and said all Americans must instead wear blue, that would be activism. Laws created by the court is activism.

This also gets to the issue of whether the whole law should be tossed or just the mandate. If one were to toss only part of the law, then the court is engaging in a degree of activism. How? Well, the remaining parts would constitute a law that Congress did not pass and the President did not sign. It would be a mongrel law crafted by the court, not the legislative body of the US. Consider the following sentence: "I am not a racist." The court decides to strike down 'not' but leave the rest intact: "I am a racist." Clearly not what was intended. Best to toss the whole thing and let the Congress, having been chastised for its overreach, try again.