Judicial Tyranny

This terrific overreach by the federal judiciary is becoming most concerning. Donald Trump, like the first 44 incumbents, is President of the United States, whether you (or the federal judges) like it or not. He has all the rights, obligations, and duties of his predecessors. Like most of us, I worried about Obama’s overreach into prerogative rule with his pen and his phone. But we’ve seen none of that with Trump, his every action has been well within the Constitution. Mark Pulliam has some thoughts.

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.

(…) In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

via Judicial Tyranny’s Final Frontier – Online Library of Law & Liberty

That’s all true and very troubling, but what can we do about it? These are all Article III judges appointed during good behavior (which is not defined)m in other words, essentially for life, although they can be impeached, it is a very rare occurrence. It is also just possible that they could be removed by a writ of scire facias, a form of Chancery order which dates back to Edward I. The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Other than that, there is little legally to be done. I seem to remember that while the Supreme Court is constitutionally mandated, all the rest are the creation of the Congress, and could simply be disestablished, and new ones established, although at best, that would have the effect of retiring the judges, not firing them, and would certainly be messy for all concerned.

But perhaps there is a less, shall we say, formal method. Paul Mirengoff at Powerline writes this:

President Trump admires Andrew Jackson. He sees himself as Jacksonian.

Accordingly, it might instructive to recall how President Jackson is said to have responded when the Supreme Court ruled, in Worcester v. Georgia, that Georgia laws calling for the seizure of Cherokee lands violated federal treaties. Here is the statement Jackson may have made:

John Marshall has made his decision, now let him enforce it.

Jackson may never have uttered these words. However, both Georgia and Jackson ignored the Supreme Court’s decision. Chief Justice Marshall’s decision was never enforced.

At the rate liberal judges are going, we might see similar defiance of the judiciary by President Trump. I don’t expect Trump to respond that way if the ruling that he cannot temporarily ban immigration from six countries fails to survive judicial review. That ruling doesn’t seem important enough to defy the judiciary over.

I don’t either, but I can foresee occasions where it might be necessary. The founders considered the judiciary the weakest branch, and so there are fewer safeguards here, than anywhere else. That started changing with John Marshall and Marbury v. Madison, and that unchecked power has metatized rather badly in the last fifty years. I don’t know what the answer is, but a solution is needed.

Budget Day

Yesterday, OMB Director Mulvaney had a press conference on the new budget. Pretty good one in my view. $0 for NPR, PBS, and NEA, 50% reduction for the UN, down 30% + for EPA, a lot for State as well, more for the Pentagon which needs it (it also needs much better and leaner management). Nothing about entitlements in this one, that comes later.

Here’s Mulvaney, he a joy to listen to, a man who knows his subject thoroughly, stays calm and answers the question. And the budget is a good start.

What is a Good Judge?

Poise the cause in justice’s equal scales,
Whose beam stands sure, whose rightful cause prevails.
William Shakespeare

The other day, the AP wrote this:

Many conservation groups say U.S. Supreme Court nominee Neil Gorsuch is too conservative and too much like the man he would replace, the late Justice Antonin Scalia, to be considered a friend of the environment.

But when it comes to Gorsuch’s judicial record on issues like pollution and environmental regulation, he can’t be painted as someone who always finds in favor of businesses, according to an Associated Press review of his rulings.

Funny thing, maybe the AP doesn’t understand is that judges represent neither the environment, business, employees, the people, or even the government. Their mission is to represent the law, and justice, and to ensure its fair and equitable dispensation upon all parties, notwithstanding any other factors.

As a judge for the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch has ruled both for and against causes that environmentalists hold dear.

He voted in 2015 to uphold a Colorado law that requires 20 percent of electricity sold to consumers in the state come from renewable sources.
***
But Gorsuch has also ruled against the EPA, as in a 2010 case in which the court found that the agency was wrong to classify land in New Mexico as Indian country when a company sought to obtain a mining permit.

I like the way John Hinderaker puts it here…

There is no “but” about it. A competent judge will rule for or against a party based on the law and the facts, not the identity of the parties. Only a corrupt judge–we have several such liberals on the current Supreme Court–will ascertain a political narrative and vote to advance it.

Indeed we do!

Then the AP offers very high praise to Judge Gorsuch, although I doubt that they understand that they do.

“He follows the law,” said Merrill Davidoff, the landowners’ attorney. “And in this case the law favored the plaintiffs — the landowners — not the government or the government contractors.”

If only all our judges did!

And that brings us to something that John and I have both written much about: administrative law. John says this

There is one major contemporary issue on which judicial philosophy bears strongly. That is the legitimacy of the administrative state. As I have said repeatedly, the government we live under does not resemble the one that is described in the Constitution. Today, we are governed mostly by a fourth branch, nowhere mentioned in the Constitution, the permanent federal bureaucracy. These office-holders persist from one administration to another, and in many cases resist any effort to bring them into line with a new administration’s policies. They are unelected, unaccountable, frequently incompetent, and almost always Democrats.

If I were president, the only question I would ask a prospective Supreme Court nominee is whether he or she will be willing to take a hard look at whether the administrative state comports with the Constitution. The AP eventually gets to this central issue:

A ruling that most worries some environmental groups came in a case that had nothing to do with the environment. In a much-noted immigration case, Gorsuch was critical of the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes. Conservationists say that could be trouble for agencies like the EPA, which have the task of interpreting and implementing rules.

“If you look back at the Supreme Court’s rulings involving Chevron, most of those are environmental cases,” said Billy Corriher, deputy director of legal progress at The Center for American Progress, a nonprofit liberal advocacy group. “And I think that’s because the EPA really enforces a lot of statutes that are pretty broad, it gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous. Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts.”

That’s about as twisted as a corkscrew. The problem with administrative law (and Chevron gives overmuch weight to the agencies) is that legislation is not to be made by the agencies, they are there to execute the law the Congress has passed. That the Congress has abrogated their responsibilities under the law is no excuse. As John says.

The Constitution is not about rule by experts (even real ones, as opposed to bureaucrats) but rule by the sovereign people. Hopefully, Judge Gorsuch understands that.

via A Pro-Environment Judge Is a Bad Judge | Power Line

Trump vs.the Deep State: Herbert Meyer’s Perspective

From PowerLine and very much worth your time, as are the comments over there, as is Meyer’s speech at Imprimis. Steven gives us the highlights.

The performance of our country’s intelligence service is the latest example of an issue exploding into the headlines and becoming a shouting match, while failing to clarify anything about the issue itself. This explosion was ignited last fall by allegations that the Russians hacked into Hillary Clinton’s campaign to help Donald Trump win the election. The blast radius expanded after the election, when rumors surfaced that the Russians had deployed their nasty tactic of kompromat to undermine President Trump’s credibility by spreading rumors about his private behavior while in Moscow years ago. All this, on top of failures that had already wreaked havoc at the CIA and our other intelligence agencies—the 9/11 attacks themselves, the mess over weapons of mass destruction in Iraq, the weird 2007 National Intelligence Estimate whose key judgment was that Iran had abandoned its nuclear bomb program, Edward Snowden’s NSA espionage activities—has kept the issue of our intelligence service in the headlines. . .

Back in January, when U.S. intelligence chiefs released an unclassified version of the briefing they gave to President-Elect Trump about Russian efforts to influence the November election, Americans learned a phrase that’s unique to the world of intelligence: key judgment. It was a key judgment that Russia had hacked into John Podesta’s email server, and a key judgment that Vladimir Putin preferred Donald Trump to Hillary Clinton. Since these key judgments understandably erupted into a nasty political brawl, let’s take a moment to understand what a key judgment really is. Simply put, it’s the conclusion reached by our most senior intelligence officials, based not only on the evidence they were able to collect, but also on the insights it enabled them to reach based on their knowledge and experience.

A key judgment isn’t the same as a jury verdict. A jury verdict is based solely on the evidence presented to it. In a murder trial, unless the prosecutors can prove beyond a reasonable doubt that the defendant is guilty, you must vote for acquittal. But in a National Intelligence Estimate, you reach a key judgment by starting with the evidence, then combining it with your own knowledge and experience to reach a conclusion. . .

So why has our intelligence service suffered so many failures during the last decade or so, losing the trust of so many? Because it’s been run by career bureaucrats and administrators who rose to the top by managing intelligence rather than actually doing it. That’s like putting an airline executive with an MBA and a law degree into the cockpit of a jumbo jet. And like bureaucrats and administrators everywhere, our recent intelligence chiefs focused on structure rather than on people. Of course all organizations, including intelligence services, need the proper structure. But especially in an intelligence service, good structure is worthless without the right people—in this case world-class analysts who are deeply knowledgeable about the Mideast, China, Russia, terrorism, and all the rest. Make a list of our country’s leading experts on these subjects. How many of them have held top-level jobs in our intelligence service during the last dozen or so years? How often have the leaders of our intelligence service reached out to these people to seek their advice? The correct answers are: none and rarely.

We are still in the early days of the Trump administration, but to borrow an overused Washington cliché, we should be cautiously optimistic about the future of our intelligence service. Neither Director of National Intelligence Dan Coats nor Director of Central Intelligence Mike Pompeo are professional bureaucrats. They’ve built their careers on substance rather than on management. Each of them has proven he can talk about the key issues that confront us with an impressive level of personal knowledge and insight. Each is capable of actually doing intelligence rather than merely overseeing it. . .

via Trump Vs. The Deep State: Herbert Meyer’s Perspective | Power Line

Meyer also talks a bit about why the CIA never looked at weaknesses in the Soviet Union. He says they were never asked. I have no problem with believing that, until Reagan, we were playing defense, playing to not lose, not to win. Part of the trouble is, I think, playing not to lose is a sucker bet. It a winner for administrators and bureaucrats. Why? Because it maintains the status quo, over entire careers and lifetimes. But it isn’t a winner for the country. Winning is a winner for the country.

What for example, would the world be like if the Soviet Union had disappeared at the time of the Hungarian uprising in 1956? From all the information I’ve seen, we would have been very lucky indeed to have made that happen. But Eisenhower didn’t try. I like Eisenhower, but even as a general he tended to be too tied to the plan, and the plan for the cold war was not to lose, it was never to win. Makes you wonder what MacArthur or Patton in the White House might have done. Maybe the same thing, neither was foolhardy.

Anyway, something to think about. What? You thought I had all the answers? I don’t even have all the questions. But I’ll say this, Trump needs, above all, to get control of the government, that has to be ‘Job 1’. If he doesn’t he’ll accomplish very little.

Are We at War with Eastasia Yet?

russian-dressingIn National Review, Victor Davis Hanson writes,

The Western world is having a breakdown. The symptoms are the recent rise of socialist Bernie Sanders, Trump’s election, the Brexit vote, and the spread of anti–European Union parties across Europe.

But these are desperate folk remedies, not the cause of the disease itself.

The malady instead stems from our false notion of elitism. The public no longer believes that privilege and influence should be predicated on titles, brands, and buzz, rather than on demonstrable knowledge and proven character. The idea that brilliance can be manifested in trade skills or retail sales, or courage expressed by dealing with the hardship of factory work, or character found on an Indiana farm, is foreign to the Washington Beltway, Hollywood, and Silicon Valley.

Instead, 21st-century repute is accrued from the false gods of the right zip code, high income, proper social circles, and media exposure, rather than from a demonstrable record of moral or intellectual excellence.

In 1828, the wild and unruly Andrew Jackson was elected president because the rapidly expanding country had tired of the pretenses of an exhausted elite of tidewater and New England mediocrities.

The hollow, tiny coastal establishment of the 1820s perpetuated the ancestry and background of the great but all-but-disappeared Founding Fathers such as George Washington, John Adams, Thomas Jefferson, James Madison, and James Monroe. Yet otherwise, the Founders’ lesser successors had not earned the status they had assumed from their betters. The outsider Jackson won by exposing their pretenses.

I think he pretty much nails it here. Do read it all (link above).

Andy Jackson’s election pretty much blew up the comfortable old order based in New England and Virginia in favor of the Old Northwest and the Old Southwest. It set the stage for the huge boom of the United States in the nineteenth century. Could we be seeing the same thing with Donald Trump? Maybe. But this old order that VDH described above is different.

Dymphna over at The Gates of Vienna found a fairly old video from Bill Moyers. Most of you know who he is, he was JFK’s press secretary and went on to a career at PBS (mostly). He’s not one of my favorite people, but while he’s liberal (very, in fact) he’s also an honest man, and I’m pretty sure he loves America. One of the few honest and honorable liberals left. He did an interview with Mike Lofgren, who wrote about the Deep State in 2013, in The Party Is Over: How Republicans Went Crazy, Democrats Became Useless, and the Middle Class Got Shafted. Then in 2016, he wrote about it again: The Deep State: The Fall of the Constitution and the Rise of a Shadow Government. Pay attention to this video.

Pretty amazing isn’t it? And yes, I think this is almost exactly what we’re seeing the president battle. Will he win? Maybe, it’s going to be tough. It’s also critical, I think, that he does.

Bookworm said this the other day

Back in the late 1980s, when I was a young lawyer, a Democrat, and fancied myself as an intellectual sophisticate, I went several times to CFR luncheon talks. Eventually, though, I stopped going because they didn’t make sense.

You see, even though I called myself a Democrat, I was always essentially conservative. I resented the anti-Israel tenor of the talks. Moreover, knowing European history as I did, I found ridiculous the claim that Europe could be smoothed into a vast federal entity akin to the United States of America.

The CFR did have an underlying agenda that sounded like a non-starter to me: It was to have a world governed by people all drawn from the same mindset. CFR speakers weren’t envisioning one world government under the UN, or anything apocalyptic like that (although I already loathed the UN’s antisemitism back then).

No, they just imagined a world in which the German leader and the British leader and the American leader and the Greek leader and all the other leaders would be drawn from the same intellectual pool: All these countries would be sort-of democracies. That is, the people would ostensibly have the vote, but the governing would be done by small cadres of really smart people who weren’t actually responsive to the voters.

She’s right. But remember this, it’s not really a conspiracy so much as it’s a consensus of people who grew up together went to the same schools, worked for the same companies doing the same sorts of jobs, rotated into the same prestigious (in their minds, at least) government jobs, and/or reported on all this. I suspect many of them have never been out of the Acela corridor, except to fly out to Frisco and Silicon Valley. Well, that ain’t my America, and I doubt it’s yours.

As an aside, our British cousins have much the same problem with the Westminster bubble, including the City of London, vis a vis the rest of the kingdom. Maybe Mrs. May is the solution, but only if she can escape much of her adult life.

Book also says this about the following video, and yes, I agree with her about that, but he makes some useful points.

All of which is to say that you need to watch this video, even if some of the conspiracy language that crops up about halfway through makes you feel a little slimed:

Ace said this the other day, and as usual, he is correct.

As Hillary Clinton once said about the staffers of the White House Travel Office: “I want their people out and our people in.

Competent establishments are not deposed — because they’re competent. They are nimble, react well to changing circumstances and growing discontent, and tweak their course to maintain their power and authority.

Only incompetent establishments provoke a rebellion.

And competent establishments are not surprised by rebellions, either. They see them coming, and head them off by co-optation and adaptation.

The very fact that these cretins are still surprised by all this — still surprised! Four months after the fact! — shows them to be incompetent, and not nearly so clever as they flatter themselves.

Competent, smart establishments are not surprised by the long-brewing and obvious, and competent, sane establishments have already begun processing the new information they’ve been presented with just weeks after it’s been presented.

Yup. Elite (in their own minds, if any) and incompetent to boot. Hell of a way to go through life, but that’s what living in a bubble of unreality does to you.

Soopermexican over at The Right Scoop has a bit to add as well.

The Guardian reported on the first wiretap request in January:

The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation.

They linked to this report from Heat Street, from November:

screen-shot-2017-03-04-at-7-08-14-am

Mark Levin put all the pieces together in a segment on his radio show we posted yesterday. You can listen to it here. 

Follow those links, especially that one to Mark Levin. That will tell you just how out of control the jackwagons have gotten.

As Dymphna said in her title, it’s time for Finding the Right Bums to Throw Out.

The End Of Identity Politics

womens_marchFrom Victor Davis Hanson

Who are we? asked the liberal social scientist Samuel Huntington over a decade ago in a well-reasoned but controversial book. Huntington feared the institutionalization of what Theodore Roosevelt a century earlier had called “hyphenated Americans.” A “hyphenated American,” Roosevelt scoffed, “is not an American at all.” And 30 years ago, another progressive stalwart and American historian Arthur Schlesinger argued in his book The Disuniting of America that identity politics were tearing apart the cohesion of the United States.

What alarmed these liberals was the long and unhappy history of racial, religious, and ethnic chauvinism, and how such tribal ties could prove far stronger than shared class affinities. Most important, they were aware that identity politics had never proved to be a stabilizing influence on any past multiracial society. Indeed, most wars of the 20th century and associated genocides had originated over racial and ethnic triumphalism, often by breakaway movements that asserted tribal separateness. Examples include the Serbian and Slavic nationalist movements in 1914 against Austria-Hungary, Hitler’s rise to power on the promise of German ethno-superiority, the tribal bloodletting in Rwanda, and the Shiite/Sunni/Kurdish conflicts in Iraq.

The United States could have gone the way of these other nations. Yet, it is one of the few successful multiracial societies in history. America has survived slavery, civil war, the Japanese-American internment, and Jim Crow—and largely because it has upheld three principles for unifying, rather than dividing, individuals. […]

That is, in large part why this experiment has worked, it doesn’t matter who you are, you have got a shot. It may not be a fair shot, by any means, let alone your lights, but it’s a shot, all the same. It’s worked, and it’s worked pretty well, overall.

In the late 1960s, however, these three principles took a hit. The federal government lost confidence in the notion that civil rights legislation, the melting pot, and a growing economy could unite Americans and move society in the direction of Martin Luther King Jr.’s vision—“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

This shift from the ideal of the melting pot to the triumph of salad-bowl separatism occurred, in part, because the Democratic Party found electoral resonance in big government’s generous entitlements and social programs tailored to particular groups. By then, immigration into the United States had radically shifted and become less diverse. Rather than including states in Europe and the former British Commonwealth, most immigrants were poorer and almost exclusively hailed from the nations of Latin America, Asia, and Africa, resulting in poorer immigrants who, upon arrival, needed more government help. Another reason for the shift was the general protest culture of the Vietnam era, which led to radical changes in everything from environmental policy to sexual identity, and thus saw identity politics as another grievance against the status quo.

A half-century later, affirmative action and identity politics have created a huge diversity industry, in which millions in government, universities, and the private sector are entrusted with teaching the values of the Other and administering de facto quotas in hiring and admissions. In 2016, Hillary Clinton ran a campaign on identity politics, banking on the notion that she could reassemble various slices of the American electorate, in the fashion that Barack Obama had in 2008 and 2012, to win a majority of voters. She succeeded, as did Obama, in winning the popular vote by appealing directly to the unique identities of gays, Muslims, feminists, blacks, Latinos, and an array of other groups, but misjudged the Electoral College and so learned that a numerical majority of disparate groups does not always translate into winning key swing states. […]

In doing so, she (and some before her) have gone far to negating the social contract that built America.

Finally, ideology is eroding the diversity industry. Conservative minorities and women are not considered genuine voices of the Other, given their incorrect politics. For all its emphasis on appearance, diversity is really an intolerant ideological movement that subordinates race and gender to progressive politics. It is not biology that gives authenticity to feminism, but leftwing assertions; African-American conservatives are often derided as inauthentic, not because of purported mixed racial pedigrees, but due to their unorthodox beliefs.

The 2016 election marked an earthquake in the diversity industry. It is increasingly difficult to judge who we are merely by our appearances, which means that identity politics may lose its influence. These fissures probably explain some of the ferocity of the protests we’ve seen in recent weeks. A dying lobby is fighting to hold on to its power.

via The End Of Identity Politics

I’ve skipped a huge amount here, especially of his reasoning, which is sound. So, by all means, read the link. But what stands out here, is the idea of America, where we count the individual, not the group (increasingly, groups) to which he belongs. I think he’s correct, and I suspect we are going to be exploring some of the material we’ve written about lately, in more detail.

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