Posted tagged ‘U.S. Constitution’

Congressional Hearings and Witch-Hunts

June 13, 2017

Congressional Hearings and Witch-Hunts, Front Page MagazineBruce Thornton, June 13, 2017

America’s longest running soap opera is not General Hospital. It’s the Congressional Hearing, usually a venue for pontificating, show-boating, histrionics, preening for the cameras, insulting political enemies, and accomplishing little of value. Meanwhile the real work of the Republic either gets neglected or proceeds in silence at a glacial pace.

James Comey was the star of last week’s latest episode of the eternal DC soap. The one-time FBI director stayed true to his character, preening morally, striking Boy Scout poses, indulging faux-folksy interjections like “Lordy,” pretending to be sober and judicious, but all the while revealing the instincts of a bureaucratic cartel sicaria. He was obviously thirsting for revenge against the hated DC outsider and “liar” who unceremoniously fired him, so much so that he admitted to cowardice on multiple occasions, from failing to immediately confront Trump over his supposed sinister “direction” (Comey’s translation of Trump’s “hope”) that Mike Flynn get let off the hook; to his groveling obedience to AG Loretta Lynch’s politicized, justice-obstructing order to call the investigation into Hillary Clinton a “matter.” He displayed a brazen arrogance in admitting to leaking a memo, written in his professional capacity, to the New York Times through a cut-out, perhaps one of numerous other leaks emanating from this self-proclaimed pillar of professional rectitude even before he was fired.

So we got a few more details about a man we already knew was a publicity hound and power -hungry operator. But that portrait was painted back in July of last year, when Comey publicly laid out the predicates for an indictment of Hillary Clinton, then usurped the authority of the AG to let Hillary (and Loretta “Tarmac” Lynch) off the hook based on a legally irrelevant consideration of “intent.” The only thing interesting last week was watching how far Comey would debase himself to square the many duplicitous circles he had spun over the last few years.

Great fun for political junkies, but what useful purpose will be served by that spectacle? The media are happy, since they get free programming and more chum for their talking heads. They’re celebrating the 19 million viewers who supposedly tuned in, though that sum represents a little more than 10% of registered voters. Normal citizens were working their jobs and tending to their lives. From their perspective, the drama inside the Beltway cocoon is bureaucratic white noise. If they think about it at all, it’s to wonder whether the guilty leakers will be hunted down and punished, or just be “investigated” for months and months and then, like Hillary, given a pass. And Hillary is just one of numerous miscreants that need exposing and punishing for their corruption of the public trust in order to serve their political preferences or careerist ambitions.

Don’t hold your breath. More likely we’ll see a repeat of the 2003 Valery Plame inquisition, that ginned-up crisis about the illegal “exposure” of an alleged “covert” CIA agent. By the time it was all finished, Comey’s buddy Patrick Fitzgerald who, despite knowing the true identity of the leaker, like some low-rent Javert for three years hounded White House staffers until Lewis “Scooter” Libby was questionably convicted of four crimes. So fat chance the biggest offender of all, Hillary Clinton, will ever answer for putting national security at risk and treating the State Department like an ATM. Some small-fry staffers might get caught in the net, but the whales will just swim right through.

What’s really maddening, though, is that we’re into the second year of Trump’s critics still being infuriated by his style, even as they ignore or downplay the much grosser offenses of numerous Democrats. Much of the whole “Russia collusion” fantasy has been generated by Trump’s refusal to abide by the media and establishment-created protocols presidents are supposed to follow. Republican Trump critics are just as bad, still not figuring out that their fealty to exalted “protocols” and good taste are just what energized ordinary citizens, those folks grown sick of bipartisan elites who seemed to have more in common with each other than with the people they’re supposed to represent.

So, for example, we hear once again from the Wall Street Journal’s Peggy Noonan––who seems bent on spending the rest of her career playing Margaret Dumont to Trump’s Groucho Marx––whining about Trump’s asking Comey for “loyalty.” “Presidents don’t lean on FBI chiefs in this way,” Noonan sniffed. “It is at odds with traditional boundaries, understandings and protocols.” Really? Sez who? LBJ probably applied worse pressure than that before lunch every day. And few presidents “leaned on” J. Edgar Hoover only because the G-man had some pretty thick files on them.

As for “traditional boundaries, understandings and protocols,” where do they come from? Andrew Jackson? Political decorum and comity are good things, but in democratic politics they usually serve as gate-keepers separating the elites from their clients. They also are camouflage for disguising collusion or incompetence or inaction. They’re just the air-freshener for the political sausage factory. What matters is getting the sausage made.

But the only rule-book that matters is the Constitution. And it says a president can fire any executive employee, including the head of the FBI, any way he wants and for any reason he sees fit. The FBI is a federal agency, not a separate arm of the government, answerable to the Chief Executive, who, unlike Comey or Lynch, is directly answerable to the sovereign people. If they’re unhappy with the president’s tweets or brashness or actions, they’ll let him and his party know at the ballot box.

And that’s what’s objectionable about these opera-buffa “hearings.” The media and politicians are obsessing over superficial issues of presidential style, progressive fake news, and he-said-he-said squabbles, while the real work that needs to get done is being neglected. And Obama left behind some huge messes that Trump promised to clean up. We don’t need “hearings” about Russian interference in the election. That’s a dog-bites-man story. Just shoot the dog by increasing cyber-security, and stop talking about it. We don’t need hearings about alleged “Russian collusion” with the Trump campaign. Just shut up, investigate, and if necessary charge, prosecute, and convict the guilty. Ditto with the federal agencies leaking like a colander, the only substantive story in the Trump-and-Comey puppet show.

All of us need to get focused and hold the politicians’ feet to the fire and to make them deliver the changes necessary for restoring economic growth, reforming our broken health-care system, and straightening out our Kafkaesque tax code. These are hard problems with harder solutions, but they won’t get fixed if Congress is off mugging for television cameras or taking the whole month of August off.

Many Congressmen assure us that they are hard at work below the media’s radar. I hope that’s true, because if the Republicans and Trump fail to deliver on his promises with substantial change, we might see in our country a reprise of what just happened in England’s snap election, where a hard-left buffoon perhaps fatally wounded the Tories’ government. Trump promised to win so much the people will get sick of winning. He’d better make it happen, or else the people who put him in office will get sick of him. And our own country has plenty of hard-left buffoons itching to take his place.

Don’t Stop With Paris

May 31, 2017

Don’t Stop With Paris, PJ MediaAndrew C. McCarthy, May 31, 2017

(President Nixon entered into the Vienna Convention on the Law of Treaties, purporting to nullify the constitutional requirement of Senate ratification of treaties before they can go into effect. He had no authority to do so and President Trump, perhaps with the backing of Congress should he deem it appropriate, should declare the “Law of Treaties” null and void, retroactively. — DM)

FILE – In this Oct. 13, 1973 file photo, then-vice presidential nominee Gerald R. Ford, right, listens as President Richard Nixon, accompanied by Secretary of State Henry Kissinger, speaks in the Oval Office of the White House in Washington.

President Richard M. Nixon signed a monstrosity known as the Vienna Convention on the Law of Treaties. Think of it as “the treaty on treaties” — even though you probably thought we already had an American law of treaties.

Under Article 18 of the treaty on treaties, once a nation signs a treaty — or merely does something that could be interpreted as “express[ing] its consent to be bound by the treaty” — that nation is “obliged to refrain from acts which would defeat the object and purpose of the treaty.”

In other words, the Constitution notwithstanding, once a presidential administration signs or otherwise signals assent to the terms of an international agreement, the United States must consider itself bound – even though the Senate has not approved it, even though it has not been ratified.

Think, moreover, of how badly the treaty on treaties betrays our constitutional system, which is based on representative government that is accountable to the people. The Constitution’s treaty process is designed to be a presumption against international entanglements. Unless two-thirds of senators are convinced than an agreement between or among countries is truly in the national interests of the United States — not of some “progressive” conception of global stability, but of our people’s interests — the agreement will not be ratified, and therefore should be deemed null and void.

President Trump should not stop at Paris. While he’s at it, he should affirmatively withdraw the United States from the Vienna Convention on the Law of Treaties. We don’t need an international convention on that. We have a Constitution that renders multilateral boondoggles unbinding in the absence of super-majority Senate consent. Want to put “America first”? Then it is past time to reify our sovereignty and the rule of law — our law.

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It is welcome news that President Trump will pull the United States out of the Paris climate agreement. The pact promises to damage the economy while surrendering American sovereignty over climate policy to yet another international, largely anti-American enterprise.

It is unwelcome news, nevertheless, that so much was riding on the president’s decision to withdraw the assent of his predecessor, Barack Obama — America’s first post-American president.

In reality, Trump’s decision is monumental only because America, in the Obama mold, has become post-constitutional.

The Paris climate agreement is a treaty. We are not talking here about a bob-and-weave farce like the Iran nuclear deal. That arrangement, the “Joint Comprehensive Plan of Action,” was shrewdly packaged as an “unsigned understanding” — concurrently spun, depending on its apologists’ need of the moment, as a non-treaty (in order to evade the Constitution’s requirements), or as a binding international commitment (in order to intimidate the new American administration into retaining it).

The climate agreement, to the contrary, is a formal international agreement. Indeed, backers claim this “Convention” entered into force — i.e., became internationally binding — upon the adoption of “instruments of ratification, acceptance, approval or accession” by a mere 55 of the 197 parties.

For all these global governance pretensions, though, why should we care? Why should the Paris agreement affect Americans?

Yes, President Obama gave his assent to the agreement in his characteristically cagey manner: He waited until late 2016 to “adopt” the convention — when there would be no practical opportunity to seek Senate approval before he left office. But Senate consent is still required, by a two-thirds’ supermajority, before a treaty is binding on the United States.

At least that’s what the Constitution says.

But it is not what post-American, transnational progressives say.

They note that in 1970, President Richard M. Nixon signed a monstrosity known as the Vienna Convention on the Law of Treaties. Think of it as “the treaty on treaties” — even though you probably thought we already had an American law of treaties.

Under Article 18 of the treaty on treaties, once a nation signs a treaty — or merely does something that could be interpreted as “express[ing] its consent to be bound by the treaty” — that nation is “obliged to refrain from acts which would defeat the object and purpose of the treaty.”

In other words, the Constitution notwithstanding, once a presidential administration signs or otherwise signals assent to the terms of an international agreement, the United States must consider itself bound – even though the Senate has not approved it, even though it has not been ratified.

If a subsequent president wants to get the United States out from under this counter-constitutional strait-jacket, it is not enough merely to refrain from submitting the treaty to the Senate. The later president must take an affirmative action that withdraws the prior president’s assent. That is why Trump cannot not just ignore the Paris agreement; he needs to openly and notoriously pull out of it.

Want to know how far gone we are? The treaty on treaties has never been ratified by the United States.

So why do we care about it? Because Nixon signed it. Could the reasoning here be more circular? The Constitution requires a signed treaty to be ratified before it becomes binding, yet we consider ourselves bound by signed but unratified treaties because a signed but unratified treaty says so.

How does that square with the Constitution? Wrong question. The right one, apparently, is: Who needs the Constitution when you have the State Department? That bastion of transnational progressives advises that, despite the lack of ratification under our Constitution, “many” of the treaty on treaties’ provisions are binding as — what else? — “customary international law.”

President Trump is taking a significant step in removing the United States from the Paris agreement. But the step should not be significant, or politically fraught, at all. President Obama’s eleventh-hour consent to the agreement’s terms should have been nothing more consequential than symbolic pom-pom waving at his fellow climate alarmists. It should have had no legal ramifications.

Think, moreover, of how badly the treaty on treaties betrays our constitutional system, which is based on representative government that is accountable to the people. The Constitution’s treaty process is designed to be a presumption against international entanglements. Unless two-thirds of senators are convinced than an agreement between or among countries is truly in the national interests of the United States — not of some “progressive” conception of global stability, but of our people’s interests — the agreement will not be ratified, and therefore should be deemed null and void.

Yet, the treaty on treaties enables senators to ignore their constituents’ interests without accountability. Senators from Ohio, West Virginia, Pennsylvania, and elsewhere are not forced to cast a vote on whether international climate standards, and the unaccountable bureaucrats behind them, should strangle their states. They get to say, “Don’t look at me. The issue has already been decided by the president, so our only remaining choice is to ‘save the planet’ by implementing these painful global mandates.”

President Trump should not stop at Paris. While he’s at it, he should affirmatively withdraw the United States from the Vienna Convention on the Law of Treaties. We don’t need an international convention on that. We have a Constitution that renders multilateral boondoggles unbinding in the absence of super-majority Senate consent. Want to put “America first”? Then it is past time to reify our sovereignty and the rule of law — our law.

Trump’s “Muslim Ban,” Obamacare and Sally Yates

May 12, 2017

Trump’s “Muslim Ban,” Obamacare and Sally Yates, Dan Miller’s Blog, Dan Miller, May 12, 2017

(The views expressed in this article are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)

President Trump’s initial executive order imposed a temporary ban on refugees from seven countries where terrorism is endemic and information on potential refugees is scant, pending development of a workable vetting procedure. He later vacated the initial order and replaced it with one affecting only six countries and making other changes not relevant to the points addressed in this article. 

The initial executive order was rejected as unconstitutional, apparently because in violation of the First Amendment (freedom of religion), by several district court judges and the replacement order has had the same fate. The rulings were based, not on the text of the orders, but on Candidate Trump’s campaign references to a “Muslim ban.” Both orders applied equally to non-Muslims and Muslims from the subject countries. Neither mentioned, nor banned, nor applied to anyone from, any other Muslim majority country. According to the Pew Research Center, in 2010 there were “49 countries in which Muslims comprise more than 50% of the population.”

On May 11th, law Professor Jonathan Turley wrote an article titled Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General. It deals with the testimony of now-former (fired) acting Attorney General Sally Yates concerning her refusal to allow the Department of Justice to support President Trump’s initial executive order. Ms. Yates was a hold-over from the Obama administration.

Professor Turley opined on Ms. Yates’ decision in the context of this graphic:

Sometimes congressional hearings bring clarity to controversies. Many times they do not. Controversies can become “curiouser and curiouser,” as they did for Alice in Wonderland. That was the case with the testimony of fired acting Attorney General Sally Yates before the Senate Judiciary Committee this week discussing her unprecedented decision to order the entire Justice Department not to assist President Trump in defending the first immigration order. Yates was lionized by Democratic senators as a “hero” and has been celebrated in the media for her “courageous stand.” However, for those concerned about constitutional law and legal ethics, there is little to celebrate in Yates’ stand. Indeed, her explanation before the Senate only made things more confusing. It was a curious moment for the new Alice of the Beltway Wonderland: “Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”

There has been considerable speculation on why Yates would engineer such a confrontation, but what is more important is her justification for ordering an entire federal department to stand down and not to assist a sitting president. Yates’ prior explanation fell considerably short of the expected basis for such a radical step. She dismissed the review of the Office of Legal Counsel (OLC) by insisting that those career lawyers only look at the face of the order and did not consider Trump’s campaign statements and his real motivations. Of course, many question the use of campaign rhetoric as a basis for reviewing an order written months later by an administration. Most notably, Yates did not conclude that the order was unconstitutional (in contradiction with her own OLC). Rather, she said that she was not convinced that the order was “wise or just” or was “lawful.” She does not explain the latter reference but then added that she was acting on her duty to “always seek justice and stand for what is right.” That is a rather ambiguous standard to support this type of obstruction of a sitting president. [Emphasis added.]

. . . .

Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order. [Emphasis added.]

I agree with Professor Turley’s analysis and posted the following comment arguing that there is Supreme Court precedent for ignoring politically oriented campaign rhetoric such as Candidate Trump’s reference to a “Muslim ban.”

Ms. Yates testified that substantially the same standards of review apply to executive orders as to acts of Congress.

When Obamacare was under discussion prior to enactment and when it was enacted, its basis was claimed to be the Commerce Clause of the Constitution. Those who wrote Obamacare and those who voted for it rejected the notion that it was a tax because to accept that classification would have been political suicide. President Obama did not suggest to the public that Obamacare was a tax. He claimed that it was appropriate under the Commerce Clause. As I recall, counsel for the Government rejected classification as a tax during oral argument, relying instead on the commerce clause.

The majority opinion written by Chief justice Roberts held that although violative of the Commerce clause, Obamacare was permissible instead under the powers granted by the Constitution to impose taxes and was, therefore, compliant with the Constitution. Even after the decision was released, President Obama continued to claim that it was not a tax.

Chief Justice Roberts cited the Congressional power to tax the non-purchase of gasoline — something the Congress had never done as to gasoline or any other commodity or service. He did not suggest how it could be done: tax everybody who fails to purchase gasoline, only the owners of automobiles, only the owners of gasoline reliant automobiles, only those owning such automobiles but failing to purchase specified quantities, and so on. As I recall, Prof. Turley wrote an article questioning the majority opinion’s reliance on the taxing powers of Congress. [Professor Turley wrote about the decision in an article title Et tu, Roberts? Federalism Falls By The Hand Of A Friend.– DM]

The evident basis of the Obamacare decision was the notion that acts of Congress are to be upheld if there is any Constitutional basis for doing so — despite politically motivated statements by members of Congress who had voted for it and despite assertions by the President and others that it was not a tax. Under the standard applied by Ms. Yates to President Trump’s executive order, such statements would have rendered Obamacare unconstitutional and obligated her, as Acting Attorney General, to refuse to support it in court. [Emphasis added.]

Ms. Yates was asked neither about the standard applied by the Supreme Court in upholding Obamacare nor her application of an apparently different standard to President Trump’s executive order.

The judges who have thus far rejected President Trump’s initial and second executive order adopted the same rationale as Ms. Yates. The judges who upheld the orders obviously did not.

It is probable that the Supreme Court will eventually decide on the constitutionality of President Trump’s revised executive order, particularly if (as seems likely) there is a split in the circuits. Justice Gorsuch will likely be among the justices who decide the case and the executive order will very likely be held constitutional. There will probably be more than five votes for its affirmation.

In the meantime, America will continue to receive substantial numbers of unvetted and potentially dangerous refugees whose admission the executive orders were intended to prevent. Oh well. What’s a few more American deaths by jihadists? What difference at this point does it make?

Jeff Sessions Meets with Mayors as Court Blocks President Trump’s Order on ‘Sanctuary Cities’

April 26, 2017

Jeff Sessions Meets with Mayors as Court Blocks President Trump’s Order on ‘Sanctuary Cities’, BreitbartIan Mason, April 25, 2017

The ruling may not, however, effect Sessions’s demands for compliance. The DOJ grants he is threatening to withdraw already had their own provisions preventing them from being dispensed to jurisdictions that fail to comply with 8 U.S.C. 1373 before President Trump’s executive order.

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The mayors of 15 large American cities, including some from so-called “sanctuary” jurisdictions, met with Attorney General Jeff Sessions in Washington Tuesday to discuss the DOJ’s efforts to cut funding from cities that frustrate federal immigration enforcement.

Session’s Justice Department sent a letter to eight sanctuary cities and the “sanctuary state” of California last week demanding they show compliance with federal immigration laws or lose law enforcement grant money. In a statement issued after Tuesday’s meeting, Sessions clarified what he expects from cities in states in the fight against illegal alien crime:

 The Department of Justice will fulfill our responsibility to uphold and enforce our nation’s immigration laws, including 8 U.S.C. 1373.  Under the Obama administration, the Department of Justice required certain grantees to certify compliance with federal law, including 8 U.S.C. 1373, as a condition for receiving grant funding.

8 U.S.C. 1373 prohibits local jurisdictions from preventing the Immigration and Naturalization Service from getting immigration status information on people they detain.

At least two leaders from such jurisdictions attended the morning meeting with the Attorney General, Mayor Mitch Landrieu of New Orleans, and Mayor Steve Adler of Austin. The Associated Press reported the mayors saying the legal definition of that term “sanctuary cities” was clarified at the meeting.

Cutting funding from sanctuary cities has been a centerpiece of Session’s new policy at DOJ and a major effort of the Trump administration. The meeting with mayors was to serve as an opportunity to explain these efforts to city leaders, beginning with the already announced plan to withhold law enforcement grants. In his statement, Sessions explained:

We are pleased that the mayors who met with us today assured us they want to be in compliance with the law.  The vast majority of state and local jurisdictions are in compliance and want to work with federal law enforcement to keep their communities safe.  Of course, compliance with 8 U.S.C. 1373 is the minimum the American people should expect.  We want all jurisdictions to enthusiastically support the laws of the United States that require the removal of criminal aliens, as many jurisdictions already do.

A U.S. district court ruling, handed down only hours after Sessions met with the mayors, frustrates wider efforts by the administration to stop grant money flowing to jurisdictions that refuse to comply with 8 U.S.C. 1373. The ruling, by Judge William Orrick of the San Francisco-based U.S. District Court for the District of Northern California, blocks a section of President Donald Trump’s February executive order authorizing the withdrawal of all federal funds from such jurisdictions. That authority will now be suspended while the lawsuit, launched by a group of California sanctuary cities, works its way through the courts.

The ruling may not, however, effect Sessions’s demands for compliance. The DOJ grants he is threatening to withdraw already had their own provisions preventing them from being dispensed to jurisdictions that fail to comply with 8 U.S.C. 1373 before President Trump’s executive order.

Dershowitz: Revised travel order should have been upheld

March 18, 2017

Dershowitz: Revised travel order should have been upheld, Fox News via YouTube, March 18, 2017

( In the last minutes of the video, Prof. Dershowitz articulates his hopes for the Democrat Party. Has he allowed his hopes to override reality? — DM)

 

Who Rules the United States?

February 17, 2017

Who Rules the United States? Washington Free Beacon, February 17, 2017

(Update re President Trump’s EPA nominee, Scott Pruitt: He was approved by the Senate 52-46. — DM)

President Donald Trump pauses while speaking during a news conference, Thursday, Feb. 16, 2017, in the East Room of the White House in Washington. (AP Photo/Andrew Harnik)

President Donald Trump pauses while speaking during a news conference, Thursday, Feb. 16, 2017, in the East Room of the White House in Washington. (AP Photo/Andrew Harnik)

Donald Trump was elected president last November by winning 306 electoral votes. He pledged to “drain the swamp” in Washington, D.C., to overturn the system of politics that had left the nation’s capital and major financial and tech centers flourishing but large swaths of the country mired in stagnation and decay. “What truly matters,” he said in his Inaugural Address, “is not which party controls our government, but whether our government is controlled by the people.”

Is it? By any historical and constitutional standard, “the people” elected Donald Trump and endorsed his program of nation-state populist reform. Yet over the last few weeks America has been in the throes of an unprecedented revolt. Not of the people against the government—that happened last year—but of the government against the people. What this says about the state of American democracy, and what it portends for the future, is incredibly disturbing.

There is, of course, the case of Michael Flynn. He made a lot of enemies inside the government during his career, suffice it to say. And when he exposed himself as vulnerable those enemies pounced. But consider the means: anonymous and possibly illegal leaks of private conversations. Yes, the conversation in question was with a foreign national. And no one doubts we spy on ambassadors. But we aren’t supposed to spy on Americans without probable cause. And we most certainly are not supposed to disclose the results of our spying in the pages of the Washington Post because it suits a partisan or personal agenda.

Here was a case of current and former national security officials using their position, their sources, and their methods to crush a political enemy. And no one but supporters of the president seems to be disturbed. Why? Because we are meant to believe that the mysterious, elusive, nefarious, and to date unproven connection between Donald Trump and the Kremlin is more important than the norms of intelligence and the decisions of the voters.

But why should we believe that? And who elected these officials to make this judgment for us?

Nor is Flynn the only example of nameless bureaucrats working to undermine and ultimately overturn the results of last year’s election. According to the New York Times, civil servants at the EPA are lobbying Congress to reject Donald Trump’s nominee to run the agency. Is it because Scott Pruitt lacks qualifications? No. Is it because he is ethically compromised? Sorry. The reason for the opposition is that Pruitt is a critic of the way the EPA was run during the presidency of Barack Obama. He has a policy difference with the men and women who are soon to be his employees. Up until, oh, this month, the normal course of action was for civil servants to follow the direction of the political appointees who serve as proxies for the elected president.

How quaint. These days an architect of the overreaching and antidemocratic Waters of the U.S. regulation worries that her work will be overturned so she undertakes extraordinary means to defeat her potential boss. But a change in policy is a risk of democratic politics. Nowhere does it say in the Constitution that the decisions of government employees are to be unquestioned and preserved forever. Yet that is precisely the implication of this unprecedented protest. “I can’t think of any other time when people in the bureaucracy have done this,” a professor of government tells the paper. That sentence does not leave me feeling reassured.

Opposition to this president takes many forms. Senate Democrats have slowed confirmations to the most sluggish pace since George Washington. Much of the New York and Beltway media does really function as a sort of opposition party, to the degree that reporters celebrated the sacking of Flynn as a partisan victory for journalism. Discontent manifests itself in direct actions such as the Women’s March.

But here’s the difference. Legislative roadblocks, adversarial journalists, and public marches are typical of a constitutional democracy. They are spelled out in our founding documents: the Senate and its rules, and the rights to speech, a free press, and assembly. Where in those documents is it written that regulators have the right not to be questioned, opposed, overturned, or indeed fired, that intelligence analysts can just call up David Ignatius and spill the beans whenever they feel like it?

The last few weeks have confirmed that there are two systems of government in the United States. The first is the system of government outlined in the U.S. Constitution—its checks, its balances, its dispersion of power, its protection of individual rights. Donald Trump was elected to serve four years as the chief executive of this system. Whether you like it or not.

The second system is comprised of those elements not expressly addressed by the Founders. This is the permanent government, the so-called administrative state of bureaucracies, agencies, quasi-public organizations, and regulatory bodies and commissions, of rule-writers and the byzantine network of administrative law courts. This is the government of unelected judges with lifetime appointments who, far from comprising the “least dangerous branch,” now presume to think they know more about America’s national security interests than the man elected as commander in chief.

For some time, especially during Democratic presidencies, the second system of government was able to live with the first one. But that time has ended. The two systems are now in competition. And the contest is all the more vicious and frightening because more than offices are at stake. This fight is not about policy. It is about wealth, status, the privileges of an exclusive class.

“In our time, as in [Andrew] Jackson’s, the ruling classes claim a monopoly not just on the economy and society but also on the legitimate authority to regulate and restrain it, and even on the language in which such matters are discussed,” writes Christopher Caldwell in a brilliant essay in the Winter 2016/17 Claremont Review of Books.

Elites have full-spectrum dominance of a whole semiotic system. What has just happened in American politics is outside the system of meanings elites usually rely upon. Mike Pence’s neighbors on Tennyson street not only cannot accept their election loss; they cannot fathom it. They are reaching for their old prerogatives in much the way that recent amputees are said to feel an urge to scratch itches on limbs that are no longer there. Their instincts tell them to disbelieve what they rationally know. Their arguments have focused not on the new administration’s policies or its competence but on its very legitimacy.

Donald Trump did not cause the divergence between government of, by, and for the people and government, of, by, and for the residents of Cleveland Park and Arlington and Montgomery and Fairfax counties. But he did exacerbate it. He forced the winners of the global economy and the members of the D.C. establishment to reckon with the fact that they are resented, envied, opposed, and despised by about half the country. But this recognition did not humble the entrenched incumbents of the administrative state. It radicalized them to the point where they are readily accepting, even cheering on, the existence of a “deep state” beyond the control of the people and elected officials.

Who rules the United States? The simple and terrible answer is we do not know. But we are about to find out.

A legal analysis of the Ninth Circuit’s dangerous usurpation of presidential power

February 10, 2017

A legal analysis of the Ninth Circuit’s dangerous usurpation of presidential power, American Thinker,Ed Straker, February 10, 2017

(I practiced and studied law for more than three decades and find apparently successful attempts to turn Lady Justice into a political whore disheartening.

More diligent study than I have attempted since my retirement in 1996 would be necessary completely to understand a decision like that of the Ninth Circus Circuit. The present article seems brash; perhaps a brash approach is needed, if only as a basis for discussion of the proper, but very different, roles of the three branches of our feral federal government.  Please see also, The Ninth Circuit’s stolen sovereignty should serve as final wakeup call.– DM)

Federal District Judge James Robart violated the Constitution in issuing a TRO (temporary restraining order) against President Trump’s temporary entry ban for citizens of seven countries. Now a three-judge panel of the Ninth Circuit Court of Appeals has affirmed that stay.

What we have here is a creeping constitutional coup. As long as President Obama was in charge and had a massive open door policy at our borders and at our airports, in violation of statutory law, the judiciary was content to be silent. But when Donald Trump became president and tried to use the powers of the Presidency to put some national security safeguards into place, the judiciary sprung into action. The judiciary has usurped the executive branch’s powers and has created a parallel constitution, one that bears no relation to the founding document of our nation. The courts have now cited this parallel constitution to justify taking away the ultimate decision making authority concerning national security from the Presidency, to rest in their hands. The constitutional crisis and injury to our national security caused by this illegitimate decision cannot be overstated.

What follows is an analysis of this travesty and the damage done to our system of jurisprudence and national security.

1) The legal concept of standing has been totally eviscerated. In order to sue one must have “standing,” essentially to show that one is an injured party. The state of Washington, among others, sued claiming that its state-owned universities were harmed because a few students from the affected seven countries could not come to their campuses. The Ninth Circuit (hereinafter “the Court”) found that these grounds gave Washington standing to sue.

As of now, the concept of standing is now meaningless. The idea behind standing was to limit frivolous lawsuits so only people directly injured could sue. The Court’s expansion of standing means that a state can now sue on behalf of anyone, for any reason. This is very important because if anyone can sue on behalf of anyone, the Courts become immensely more powerful. Remember that Courts cannot get involved until someone sues. With standing gone, anyone can sue and the Court can immediately then exercise its power, as was the courts intent in doing away with standing.

2) “Irreparable harm” has been turned upside down. One of the standards the Court used to adjudicate this case was to see if either party would suffer irreparable harm. The Court found the University of Washington would suffer irreparable harm if students from Somalia and Yemen were temporarily delayed from coming to the US. The UW system has tens of thousands of students. The number of students affected here would be a small handful. The Court considers an action that would affect a tiny handful of students in a huge student body as irreparable harm.

On the other hand, the Court does not think the dangers of admitting un-vetted foreign nationals who might be terrorists constitutes and irreparable harm. The Court demanded that the Trump administration prove that there was a terrorist danger from these countries. But the Trump administration is not obligated to prove the terror threat because the Court has no jurisdiction in this area. It would be as if the Court suddenly demanded that Trump get approval for his DHS cabinet pick from an appeals Court, and strike down Trump’s choice because he didn’t submit evidence showing his DHS pick was suitable. This is a mad, naked, power grab. The Court opined:

When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms.

Can you believe this? To consider the inconveniencing of a handful of students as an irreparable harm and the national security of a nation as unimportant shows that this Court is fully in wanton disregard of the law, not to mention common sense.

3) National security policy has been wrested from the presidency and placed in the hands of the judiciary. National Security is traditionally left to the Presidency; indeed, the Court cited cases in support of this.

See, e.g. Cardenas v. United States , 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” see also Holder v.  Humanitarian Law Project , 561 U.S. 1, 33-34 (2010) (explaining that Courts should defer to the political branches with respect to national security and foreign relations).

But the Court says this deference is not absolute, and when they feel they want to overrule the Executive branch, they can. They even cited cases for that proposition as well:

see Zadvydas v. Davis , 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”);

Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that Courts can review “whether Congress has chosen a constitutionally  permissible means of implementing that power”)

See, e.g. Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal Courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001)

These cases are not constitutionally correct. The Constitution does not apply to foreign nationals. The Constitution is an agreement among the American citizenry. No one else. It doesn’t apply to the people of Iraq, or Somali nationals who come here, or Yemenis with an American visa. By citing cases that were unconstitutionally decided, you can see how far back the judicial rot extends — the Courts have built precedent for a shadow constitution, which allows them to grab power from the Executive.

4) The Due Process clause has been expanded to add seven billion people.The Court cites the Due Process clause, which states in part ” No person shall … be deprived of life, liberty, or property, without due process of law”. The problem is that foreign nationals are not legal “persons” under our Constitution. How could they be? How could we ever legally go to war or take action against a foreign country or a foreign group without letting them have their day in court? The implications are truly ridiculous.

The Court writes:

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their  presence here is lawful, unlawful, temporary, or permanent.

How could that be true? The Constitution applies to aliens? And the Court doesn’t even have the courage to state its ultimate conclusion: that Due Process doesn’t just extend to aliens in America, but even to aliens in other countries who want to come to America. Because that’s what they’ve extended it to.

5) The Court maliciously avoided a narrowly tailored legal remedy. Even if the Court honestly believes its own argument, its relief should be narrowly tailored to the handful of students affected at the University of Washington. Instead, it used this case as a wedge to assert its primacy over national security and to open the entire nation to unrestricted entry.

6) The Court disingenuously employed false religious protection claims. The Court said

The First Amendment prohibits any “law respecting an establishment of religion.” The States’ claims raise serious allegations and present significant constitutional questions.

Again, the Court has no jurisdiction here. The people affected are not Americans. The Trump Administration can exclude Hindus, Muslims, Christians, Women, red haired people, anyone it wants to.  Of course this is not a Muslim ban, but to even play into that argument presumes the Court has the power to rule over this. It doesn’t.

7) False consideration of “public interest.” The Court says that it has to consider “the public interest” in deciding. No it doesn’t. It only has to consider the Constitution.

Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay [of the TRO]

So the Court weighed free entry to America for foreigners, versus national security for Americans. How to decide? The Court said, for now that free travel for foreigners into America is definitely more in the public interest!

8) Conclusion: the false choices: where do we go from here? Some commentators will say to appeal this to the full Ninth Circuit (this was a three judge panel). Others will say to appeal this case to the Supreme Court. Still others will say to redraft the legislation to better meet the Court’s dictates and current mood swings.

These are all false choices. It is like people coming into your home and telling you that you cannot redecorate it without their permission; submit a proper plan, and perhaps they will approve it. The only way to win this game is not to play.

Yes, President Trump should appeal to the Supreme Court, but with a 4-4 split there (which will continue for months), his victory is far from assured.

More primarily, he should immediately disavow the Court’s authority in this matter and order his officials to reinstate the ban. Trump will be said to be provoking a constitutional crisis, but let us be clear, it is the courts that have provoked this constitutional crisis, and Trump’s entry ban is a relatively mild one. Remember, to secure the country, he is going go to have to do much more than this moderate executive order:

Let’s say that Trump actually wants to have a permanent ban on refugees from Syria or Iraq, for security reasons. A Court could overturn it on the same grounds. Suppose Trump wants to stop all refugees coming to America for a year. A Court could actually force Trump to let 100,000 or more refugees in, if Trump lets them. A Court could stop Trump from doing enhanced vetting, claiming it discriminated against Muslims from ISIS infested countries. A Court also stop Trump’s border wall, claiming it would have a negative effect on a snail or a worm.

That’s why Trump can’t give in on his relatively limited executive order. If he does, he will give the Courts a green light to keep America an open borders country.

If Trump does nothing, merely playing out the process, he may well lose his constitutional power to protect our borders. And while we wait and watch matters go through the courts, every day more and more terrorists could be coming into our country. There is no time to wait.