Bruno Leoni

On a recent EconTalk, Michael Munger discussed the underrated economist, Bruno Leoni.  Leoni held that law should emerge in a manner similar to a market.  The current system of topdown legislation is just as backwards as central planning for an economy.  As an example, Munger suggested that rather than paving paths between buildings on a college campus, builders should wait a year and see where the muddy paths emerge.  That is where you pave.  Of course, we have all seen cases where the builders paved first only to find trails blazed through the grass thereafter.  By this system, law would emerge through judicial rulings: case law.  I have long disliked case law as creating bad precedents (e.g. Plessy v. Ferguson, Rowe v. Wade, etc.), but those eventually fell away by the same process that brought them into being.  Could this be a reasonable means of enacting law?

Bruno Leoni was an Italian economist who was unfortunately murdered at the age of 54.  However, such economists as James Buchanan and Friedrich Hayek - both Nobel Prize winners - credit Leoni for influencing their work.  Had Leoni lived longer, his works might be as well-known as theirs.

The idea of law emerging like a market seems backwards, but it does harken back to how it was done in earlier days.  There was a time when people would bring their disputes to the ruler and ask him to decide.  His decision became law.  As societies grew larger, this method became impractical.  Or did it?  Let the law emerge through judicial rulings.  Other judges may adopt the reasoning of a deciding judge or overrule it.  Over time, those muddy paths that persist will be paved while those that don't will see the grass return.

Seeing where legislatures have brought us, it looks like Leoni has a point.  A legislator is there to legislate.  That we already have far too many laws is beside the point.  If you are a hammer, all you see is nails.  If you are a legislator, you need to make laws.  It might be that the US had hit the perfect number and balance of laws in 1972 and everything since has just been busywork for bored lawmakers.  On the other hand, a judge exists to rule on the law.  The judge could give the same ruling scores of times, further paving that well-tread path.  The judge only needs to rule on those issues that are presented in court by plaintiffs, not write law suggested by lobbyists.  Leoni is onto something here.

Outstanding episode and highly recommended.

Not Criminal If the Government Does it

"When the president does it, that means that it is not illegal, by definition."

Richard Nixon

If Pablo Delgado the cartel coyote cuts razor wire along the US-Mexican border to allow illegal immigrants into the United States, that would be a crime.  Pablo would be subject to arrest and imprisonment.

If Greg Moss the fruit farmer cuts razor wire along the border and allows illegal immigrants into the country to pick strawberries, that would be a crime.  Greg would be subject to arrest and imprisonment.

If Officer Hernandez of the Customs and Border Patrol cuts razor wire along the border and allows illegal immigrants into the country, well that's just fine.  It's humanitarian and living up to our values.  Besides, Officer Hernandez is just following orders from President Biden.

The federal government has, for some inexplicable reason, decided to aid illegal immigration into the country.  The vast majority of Americans - around 67% - are opposed to this flood of immigration and yet the government is abetting the flow rather than stemming it.

Sometimes it is necessary for the government to govern against the will of the people, but when it does so, it needs to explain why.  It needs to lead and bring the people to understand the reasons why the unfavored course is correct.  President Biden has failed to do that.  His spokespeople have gaslit the American people by saying the border is secure and everything is fine.

Close the border or explain why floods of undocumented immigrants are a benefit.  Pick one.

Punishment without Conviction

The Supreme Court of Colorado decided that Donald Trump was guilty of insurrection and, per the 14th Amendment, declared that his name should not appear on the Colorado ballot.  Of course, Trump was never charged with insurrection and has therefore not been convicted.  Nonetheless, Colorado opted to apply the punishment.  The Colorado GOP has appealed the decision and, for the moment, Trump is back on the ballot.

In Maine, the Secretary of State likewise decided that Trump was indeed guilty of insurrection and has removed Trump from the ballot.  Again, Trump has not been tried or convicted of the crime and yet Democrat politicians are administering the punishment.

I have often opined about how the rule of law has eroded in the United States in recent years.  There are the two-tiers of justice, one for Republicans and one for Democrats.  Here is perhaps the most egregious example.  This sort of disregard for the rule of law will lead to Civil War.  The United States is a high trust society.  When the trust is finally broken - and we are on the way - it will be very difficult to restore.

Civil War Brewing?

Tim Pool has talked about civil war for a while now.  The level of discord between the left and the right is so extreme that he posits that our current era is equivalent to the 1850s prior to the Civil War (1861-65).  Sadly, he makes a good case.  In a longform video, he noted how police in some localities are not enforcing the law or that some things have been decriminalized.  For example, shoplifting less than $900 worth of merchandize in California is no longer prosecuted.  Surprise, surprise, the amount of shoplifting has skyrocketed.  In fact, it is done openly and you can find videos of brazen thefts posted on Twitter, YouTube, TikTok, and so forth.  Though such theft is no longer a crime, the police will often arrest and prosecute those who attempt to stop the thefts.  Therefore, protecting your property from thieves is a crime.  How can that be the case?  Tim points out that this cannot go on much longer.  We already see San Francisco businesses closing shop.  If the authorities refuse to protect the citizens, there will be vigilantes.  There will come a day when the vigilantes injure or kill 'criminals' in the act.  The state police or maybe even US Marshals/FBI will show up to arrest the vigilantes.  Now what?  The vigilantes have no reason to respect the authority of either.  Had the government been doing the job of enforcing law, the vigilantes would have been unnecessary.  By its own acts, the government is setting the stage for a conflict with its citizens.

The collapse of the rule of law is leading to increased civil strife.  Obvious cases of two-tiered justice where criminals are released without bail and victims are prosecuted for resisting criminals has to stop.  If not, Tim Pool's prediction of the next civil war may come to pass.

Congress Makes Law, Not the EPA

The Supreme Court has nixed a 'regulation' that the EPA sought to inflict.  The EPA argued that it was merely making regulations pursuant to the Clean Air Act.  In West Virginia v. EPA, the court decided that the agency did not have unlimited regulating powers.  The court held that such dramatic changes in regulation must be enacted by Congress.  Precisely!  As I recently noted, Article 1, Section 1 of the Constitution states that All legislative Powers herein granted shall be vested in a Congress.  For far too long, these alphabet agencies have had free rein to legislate by regulation without Congressional input.  Congress loves this state of affairs as it centralizes more power in the capitol without the Representatives and Senators besmirching their voting records with the onerous regulations.  Now, if the Congress wants to regulate coal mines out of existence, they have to legislate.  Even Democrats in safe districts don't want to give that kind of ammunition to a rival candidate.

If Congress didn't write the law and the President didn't sign it, it's invalid.  It's bureaucratic overreach.  Where Trump failed to defeat the administrative state (AKA Drain the Swamp), the Supreme Court may succeed by removing its regulatory authority.

The End of Roe

The Supreme Court is not an elective body.  It is not a legislature.  Occasionally, it fails to realize these points.  One reason that the Constitution places all legislative power in the Congress is that the people can unseat Congress every 2 to 6 years.  The people cannot unseat judges.  When Congress enacts a controversial law, the people can reply with an electoral stamp of approval or a house cleaning.  If the courts enact 'rulings' that have the force of law, the people have no recourse.  Yes, the legislature could enact specific laws that effectively overturn the court but that becomes exceedingly difficult if one party or the other likes the ruling.  It would take a supermajority (60) in the Senate and control of both the House and the Presidency to negate the Supreme Court.  Even that won't be enough if the court has found that the Constitution guarantees this or that.

Now that Roe has been overturned, the question of abortion returns to the state legislatures.  If state legislatures enact laws that the state's populace opposes, the house cleanings will commence.  Strange though it may seem, this ruling weakens the Supreme Court.  By negating one of its most obvious encroachments into legislating, it can resume its post of merely interpreting laws that the Congress writes. The court's transformation into a super-legislature is what has caused the hyper-partisan judicial nomination process.  For far too long, Congress has dodged its legislative responsibilities by offloading them to the bureaucracy and the courts, two branches of government that are not subject to the voters.

Next, it would be nice if the court would strike down all bureaucratic regulation-making authority.  All legislative authority is invested in Congress, not the EPA, EEOC, FDA, NIH, et al.  This outsourcing of law-making power is why the federal registry is incomprehensibly large.  Congress could never enact so many laws, which is the whole point of investing the exclusive legislative authority there.

Rule of Law Fading Fast

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

James Madison

That day came and went decades ago.  The laws are hundreds of pages long and cover hundreds of subjects at a time, often outsourcing the details to some bureaucracy to implement the regulations.  Worse still, all too often the laws are not passed by the elected representatives but handed down by judges with lifetime tenure.  There is a reason that Hammurabi's Code was publicly posted on a stele (stone slab).  The Twelve Tables of Roman Law stood in the forum and outlined the rights and duties of Roman citizens.  The law was available to all.  It was clear.  Now, it is a labyrinthine mess where we are all criminals if the elites wish to punish us.

Today, laws are being unequally applied.  Let us consider some cases.

In May 2020, during a Brooklyn protest, Urooj Rahman (Fordam School of Law) and Colinford Mattis (Princeton and NYU School of Law graduate) drove around with Molotov cocktails which they sought to distribute to protestors.  Rahman threw one of the Molotov's into a police car.  They pleaded guilty and were up for ten years.  However, a new deal had their original pleas withdrawn, lesser charges filed, and new guilty pleas.  Now, they are looking at 18 to 24 months.

On January 6, 2021, Jacob Angeli Chansley, more infamously known as the QAnon Shaman, walked into the US Capitol and sat down.  He posed for pictures throughout.  During his trespass, he did not commit assault, arson, or vandalism.  He has been sentenced to 41 months.

In May 2011, the Congress issued a subpoena to Attorney General Eric Holder to hand over documents pertaining to Operation Fast and Furious.  He refused.  In October 2011, Congress drafted a Contempt of Congress resolution.  Holder still refused, claiming executive privilege.  In June 2012, Holder was held in both criminal and civil contempt of Congress.  The Justice Department, headed by Holder, declined to prosecute Holder.

In February 2022, Peter Navarro - director of national trade council under Trump - was subpoenaed to provide documents regarding January 6th.  He refused, claiming executive privilege.  He was indicted for contempt of Congress and arrested.

Protestors at the homes of Supreme Court justices are tolerated, though what they are doing is illegal:

The 18 U.S. Code 1507 reads: "Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both."

Let's consider the following statement from Senator Charles Schumer:

“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price.  You won’t know what hit you if you go forward with these awful decisions.”

With protestors at their houses, the Majority Leader says this.  Is it any wonder that a crackpot was caught stalking around Kavanaugh's home?

By contrast, Ryan Kelley, a candidate for governor of Michigan, has been arrested by the FBI for being at the Capitol on January 6th.  He did not enter the Capitol, but was photographed on the Capitol steps.

Justice is no longer blind.  She took off the blindfold and looks to see if there is an R or a D next to the name.  Despite months long attacks in Portland on the Federal building which included firebombs and vandalism, only 97 were arrested and around 30 charged.  Only 1 is headed to prison so far.  These were anti-Trump protesters.  But January 6th, which saw no firebombings and very little vandalism, saw 725 arrested and 71 headed to prison or jail.  One day.

I am totally in favor of prosecuting the January 6th folks.  However, when vandals and arsonists throughout the country are released while trespassers have the book thrown at them, something doesn't seem right.  There is too much selective enforcement.

Schumer says Roe v. Wade isn't Federal Law

"Today, I'm announcing that next week the U.S. Senate is going to vote on legislation to codify a woman's right to seek an abortion into federal law."

Senator Charles Schumer

By this very statement, Schumer explains why Roe v. Wade should be overturned.  It was never legislated and yet is it law.  That is an oxymoron.  The courts are meant to interpret and apply the laws.  Sometimes when they do this, they overreach.  Roe is such a case.  The Congress did not legislate and yet a 'law' came into existence in 1973 through a court ruling.  This 'law' was created through a hundred-year-old amendment, which had not been viewed as saying anything on the topic.  Much as the Constitution is silent on murder, theft, burglary, assault, speed limits, building codes, or medical licensing, it is also silent on abortion.  These are all issues for states to legislate, provided they don't run afoul of the specific limits listed in the Constitution.  If Roe is overturned, abortion will face severe restrictions in some states and open support in others.  This would be very like how states treat gun rights, something that is specifically protected in the Constitution.

Let the Congress legislate, and face election based on the laws they pass.  That is how the system is supposed to work.  Too often, unelected judges and bureaucrats are making laws for which the people have no recourse.

"All legislative Powers herein granted shall be vested in a Congress of the United States"

Article 1, Section 1, US Constitution

All.  Not most.  Not the majority.  All.  If a citizen is compelled to obey, then it better have been passed by Congress and signed by the President.  If not, it's invalid.  Congress didn't legislate Roe.  It should be overturned.

A Gotcha Question

Much is being made of Judge Ketanji Brown Jackson's inability to define 'woman' when asked by Senator Blackburn.  It has become a punchline across conservative media.  However, in the judge's defense, it is her job to interpret the laws that legislatures pass.  In Oregon, one man has been recognized by the state as 'genderless.'  The story of 'man gives birth' has been a staple for at least a decade, always a case of a trans-man.  Sadly, many laws have been passed that have allowed men to become women and women to become men.  That's legislation.  To quote Justice Scalia:

'This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’

Though we all know what a woman is when we consider biology, the question is much murkier when we are concerned with how the law defines a woman.  Unfortunately, the two definitions are not the same.  The fact that the two definitions have diverged is why terms such as birthing person, pregnant people, bleeder, chestfeeding, cervix-haver, and so forth are frequently used when trying to specify women in the older sense of the word.  The word woman is no longer exclusive to adult human females.  The blame for this lies with legislators and it is their job to fix it.

Acquitted Again

As should be a surprise to no one at all, Trump has again been acquitted.  It was a foregone conclusion.  At least the Senate only wasted a week on this folly.  The evidence did not matter.  The Constitution did not matter.  If these people really believe that Trump incited an insurrection, they should report him to the DC District Attorney to bring charges.  You know, just like with the people who broke into the Capitol.  He broke a law, right?  He's out of office and can be prosecuted, right?  Do it.  If the evidence was enough for impeachment, surely it must be enough for law enforcement.  Right?

<sound of crickets>

Yeah, that's what I thought.  Just another show trial.

Judging without Law

The Supreme Court has decided that President Obama's executive order that implemented DACA despite the Congress refusing to legislate an actual law cannot be invalided by a countering executive order by President Trump.  That presents some serious problems.  The purely executive action of one president has been enforced against a later president.  Ergo, DACA is being treated as law.  President Obama has successfully legislated his policy preference without the participation of the legislative branch!  If Biden is elected, will the Supreme Court uphold Trump's executive orders when Biden seeks to revoke them?  If yes, then presidents are legislators.  If no, the Supreme Court is picking sides rather than ruling on law.  Both of those options are disastrous for the Rule of Law.

This was not the only troubling ruling from the court.  Much as the authors of the 14th Amendment would be amazed that they had codified birthright citizenship for the children of illegal aliens, the authors of the 1964 Civil Rights law would be dumbfounded to learn they had provided legal protections for homosexuals and transgenders.  If the legislature can't get these policies implemented then it is up to the court to bypass the democratic process and just make it happen.  That's how we got gay marriage and now this.  Why do we have Congress?

In a democratic society, big issues must be decided through the elective bodies.  When courts mandate a solution, that is just a majority vote of 9 unelected judges rather than an extended debate that involves hundreds of legislators who must answer to voters.  Look at the abortion debate.  Rather than solve the problem, Roe v. Wade has created an irreconcilable division that has roiled the country for nearly 50 years.  It is why judicial fights are so brutal now because everyone knows that courts - not legislators - will have the final say.  That's not democratic.  That is not the rule of law, but the rule of judges.

DACA

 [The president] shall take Care that the Laws be faithfully executed

U.S. Constitution, Article 2 Section 3

The Dream Act, which was first proposed in 2001, was legislation that would allow those who are brought into the United States as minors to be granted a conditional amnesty.  Though technically illegal immigrants, they had no say in the matter and have spent the majority of their lives as Americans.  The Act has been debated repeatedly but never passed.  That last point is significant.  There was no law passed for the president to faithfully execute.  When President Obama pushed for the Dream Act, Congress declined to pass it.  Therefore, immigration law treats 'Dreamers' no differently than any other illegal immigrant.  The president takes an oath to faithfully execute the laws that have been passed, not laws he wished had been passed.  However, limited resources often mean that a president must chose where to put emphasis.  DACA was more than that.  President Obama implemented an executive amnesty that not only told prosecutors to ignore Dreamers but also granted legal status via work permits.  The president was not only being unfaithful to the laws that Congress had passed, he was enforcing laws that they did not pass.  Yet another impeachable offense by President Obama.  Of course, impeachment is pointless in our era and the Republicans were too spineless to use the power of the purse.

 

DACA is unconstitutional and should be revoked.  This is something Congress must legislate.  President Trump has provided Congress with 6 months in which to pass the Dream Act.  Let's see if they pass it this time.  If not, let the deportations begin.  Enforce the laws or change the laws but don't ignore the laws.  That is the path to anarchy and collapse.

Mutiny of the Deep State

Here is a story about how federal employees are defying President Trump and his appointees.  The story is generally sympathetic to the mutineers.  Working in government is not a right.  Long tenure does not mean that you get to set policy.  Love him or hate him, President Trump is the chief executive.  He's the boss, the top dog, the big cheese, the orange overlord.  When the Obama Department of Justice declined to prosecute the New Black Panthers for voter intimidation after they had loitered with clubs at a polling station during the 2008 election, J. Christian Adams resigned and became a critic outside of government.  He disagreed with the decision of President Obama and his appointees but didn't become some mole in the administration who would leak classified data.  Too often, that is what is happening now.

 

The deep state, the regulatory state, the bureaucracy, or whatever else one might call it is profoundly unconstitutional.  The Constitution says "All legislative Powers herein granted shall be vested in a Congress of the United States."  The EPA is not the Congress and yet the Federal Register returns 14,640 documents regarding EPA rules.  These rules are binding on the citizenry but they were not legislated by elected representatives; they were written by career bureaucrats who remain in their jobs for decades, regardless of which party is in office.  There are so many of these bureaucracies that Congress doesn't have the time for anything but cursory oversight.  Worse, the Congress has passed laws that limit the executive's authority (that's also unconstitutional) in managing these almost independent fiefdoms of regulatory power.  ANY rule or regulation that can result in a penalty must be legislated by the Congress.  By outsourcing legislative power under the euphemism 'regulation,' the government has experienced massive growth.

 

Sticking with the EPA, here are a few of the arms within the agency:

 

1. Office of Policy: The OP creates the regulations and is the effective legislative branch of the EPA.

2. Office of Enforcement and Compliance Assurance:  The OECA enforces the regulations, basically what an executive branch does.

3. Office of Administrative Law Judges: The OALJ adjudicates the regulations and is the judicial branch.

 

Look how convenient that is: legislative, executive, and judicial all in one agency.  Who needs separation of powers?  The separation of powers exists to prevent the consolidation of power into one entity but too many of these regulatory agencies are self-contained realms whose various parts are unlikely to provide a fair hearing to those it chooses to harass.

 

The swamp likes this cozy arrangement and is alarmed by Trump's threat to drain it, thus the mutiny.

More Illegal Spending

Senator Chuck Schumer has observed that money spent on Obamacare was not authorized by Congress.  As all appropriations must go through Congress, that would be illegal spending, embezzling tax dollars.  Sadly, this is hardly big news.  Back in 2008, the Congress declined to allocate funds to bailout the failing car companies.  Despite this lack of authorized funds, President George W. Bush spent billions of tax dollars to prop up the car makers.  Impeachable offense.  Of course, he had a month left in office so it was hardly worth the effort.  Having spent the previous year blasting President Bush's executive overreach, President Obama purchased a controlling share of the car companies while still lacking an appropriation from Congress.  Impeachable offense.  Congress let it slide.  How can we now be surprised - or even upset - that the Obama Administration continued the practice of spending without appropriation?  Without this unauthorized spending, Obamacare would have crumbled even sooner.

 

It should be noted that such spending is a crime.  Obviously, no one is going to be prosecuted because those who broke the law are members of the Washington Elite and above such laws, especially if they are Democrats.  It is a certainty that neither party will look the other way if Trump tries to spend on his pet project - the border wall - without an appropriation.  Three cheers for a return of the rule of law!

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.

Useless Knowledge?

Here is a story that shows the overwhelming dominance of foreigners from the Dominican Republic in the heroin trafficking in Boston.  Knowing this, would it be racist for the police to put extra scrutiny on Domincans?  Is it racist for law enforcement to use this information because Dominicans are mostly Hispanic and/or black?  If President Trump instituted a travel ban from the Dominican Republic to cut the flow of heroin, would that be racist?  If the racism charge will be leveled by using this information, is there any point in collecting it?

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.

Too Many Laws

A quick online search reveals that an exact count of Federal Crimes is unknown.  There is the distinction between laws and the various regulations that inevitably sprout from those laws.  One estimate from 2015 stated that there were "at least 5,000 federal criminal laws, with 10,000-300,000 regulations."  It is the responsibility of the executive branch to enforce all these laws  However, as we have seen, there is a lot of wiggle room.  Obama opted to overlook immigration laws even while he enacted new laws like the Affordable Car Act and Dodd-Frank Act.  Even with the vast resources of the US government, only so much can be accomplished.  Thanks to this vast sea of laws, executive discretion has more impact than Congressional legislation.  Immigration law appears to flipped on a dime in the wake of Trump's inauguration but it is just that he has chosen to enforce laws that Obama put on the back burner.  Moreover, Trump has already put Obama's emphasis on Climate Change on the back burner.  One country, one set of laws, two dramatically different outcomes based on who occupies the White House.  To prevent these swings, we need to rollback the scope of the Federal Government.

 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

10th Amendment of Constitution

 

The Constitution grants no authority over education: Abolish Department of Education.

 

The Constitution grants no authority over healthcare: Abolish Department of Health and Human Services.

 

The Constitution grants no authority over farming: Abolish Department of Agriculture.

 

The Constitution grants no authority over labor: Abolish Department of Labor.

 

The Constitution grants no authority over housing: Abolish Department of Housing and Urban Development.

 

The Constitution grants no authority over energy: Abolish the Department of Energy.

 

All of these departments were power grabs by the central government.  Homeland Security is the latest new department but at least there is authority granted in the Constitution for national defense.  Even so, we should abolish this one too.  Return it all to the states or the people and, if there is an actual need, they are more than capable of resolving it on the more local level.

 

Paring back the scope of government would dramatically limit the discretion of the executive.  Thus, a change in the head of state would have far less impact than it does today.

 

Based on 2009 numbers, the abolition of the above departments would result in $1.3 trillion in in savings and a reduction in the federal workforce of 560,000 people.  Let's see, divide 1.3 trillion by 330 million and you get $3,940 per person in the US.  Of course, the budget has gone way up since then so the dividend would be even bigger.

Off the Hook

Despite what he claimed in the last presidential debate, Trump will not pursue charges against Hillary.  This is the smart political decision but a bad one for the rule of law.

Politically, Hillary Clinton was the plurality vote winner in the election, winning 47.8% of the electorate.  To prosecute, even if the case is rock solid, can only further disaffect nearly half of the country.  If the goal is to unite the country, prosecution is exactly the wrong move.

Legally, if she broke the law, she should be prosecuted.  Failure to prosecute only confirms that some people are above the law.  Regardless as to where one comes down on her culpability, everyone can agree that the Federal Bureau of Immunity botched the case.  This is a precedent.  Lawyers have already tried to use the 'Hillary Defense' in court, claiming their clients had no 'intent' to exposed classified data.

 

How to thread that needle?  The new Attorney General, demonstrating independence and responding to the continued hearings in Congress, opts to pursue the case against Hillary and her staff.  Many of those who were granted immunity did not give accurate testimony and immunity can be revoked.  Charge them as well.  Trump can then offer a pardon to all involved.  The AG takes the heat while Trump gets the positive reaction from Hillary voters.  Trump will take some heat from his voters but will be able to offer that a prosecution would only distract him from more important goals.  He is likely to take less heat from such a pardon than Ford took for pardoning Nixon.  Also, the pardon functions as a de facto conviction with a commuted sentence.

 

As that is unlikely, the Hillary Defense will be flown from time to time and high-ranking government officials will be heartened by the fact that one can be above the law if the political considerations outweigh legal ones.

Silver Linings

America managed to dodge catastrophe only to crash into disaster.  Still, there are some silver linings from this dark cloud of an election year.

1. The Clinton Dynasty is done.  Though it is possible that Chelsea will make a run at some future date, both Bill and Hillary are going to retire to private life.  That neither of them holds public office means that the Clinton Foundation will see its funding evaporate.  Without the play, there will be a lot less pay.

2. The Bush Dynasty was foiled.  If there is one thing Trump did for which I am truly grateful is that he crushed JEB!  These dynastic families are a threat to the country.  The growth of an elite establishment in Washington, DC is strengthened by these dynastic families.  Sadly, JEB's son, George P Bush, is currently Texas Land Commissioner and doubtless on a path toward higher political office.  They're like roaches.

3. The adversarial press is back.  Where Obama and Hillary have had a largely fawning media, Trump will have to endure a hostile media.  I like that.  Yes, the media remains biased but I am much happier when the media is biased against government rather than for it.  If Trump's Secretary of State tries a private email server, there will be hell to pay immediately.  If the IRS starts targeting MoveOn.Org or the Huffington Post, the media will rightly demand investigations and firings; they will not be satisfied with early retirements and 5th Amendment invocations.  The president should not have a comfortable relationship with the media.

4. The Rule of Law is valid again.  This is related to the adversarial press but also applies to the Democrats.  When the rule of law was an impediment, the Democrats flouted it.  Now that it can be a cudgel to be used on the ruling Republicans, the Democrats are going to call for respecting the laws.

 

5. No more excuses for the Republicans.  Though not a Republican myself, I generally side with them on most issues.  The Republicans have had a string of victories since Obama's election and have somehow failed to capitalize on any of them.  The 2010 retaking of the House led to... nothing.  They couldn't do anything without the Senate.  Right.  Have you guys read the Constitution?  Apparently not.  In 2014, the Republicans captured the Senate which led to... nothing.  They couldn't do anything without the Presidency.  Seriously?  You really need to read the Constitution.  Now they have the Presidency, the Senate, and the House.  Implement some of that stuff you promised back in 2010.

 

6. Speaking of past promises, Obamacare repeal!  Obama promised that my premiums would drop $2500 a year and I could keep my plan.  Neither of those came to pass.  In fact, my costs went up.  Repeal Obamacare and don't replace it.  Let the market work.  Government regulations always drive prices up and make it harder to innovate.

 

Yes, it's bad but it's not all bad.