What happens when judges abandon the Constitution and the law?

Commentary by James Shott

If you have read legal documents you will likely have noticed how detailed, specific and often obtuse the language is. The purpose of such language is to assure that the intent of the document is clearly set forth, and this language is well understood by lawyers.

However, despite the careful legal wording of President Donald Trump’s Executive Order (EO) temporarily suspending travel to the U.S. from seven countries with close ties to terrorism, U.S. District Judge James Robart in Washington found problems with the document last month, and issued a temporary stay. A revised second version of that EO, rewritten to avoid the objectionable parts of the first one, including removing one of the seven countries on the list, was found unacceptable by two other federal judges, U.S. District Court Judge Derrick Watson in Hawaii, and Maryland U.S. District Court Judge Theodore Chuang.

The revised document may as well have been written in the language of the Klingons, because these two judges ignored the Order itself, rejecting the travel suspension due to negative statements about Muslim immigrants Trump made during the campaign.

Even though the people who have to implement the EO must do only what it says, the judges, in their infinite wisdom, decided that what they imagine to be the thinking of the president is more important than what the document actually mandates, even though those who follow the EO will have no knowledge of what the president thinks, and therefore no obligation to implement those opinions.

Apparently, these federal judges are confused about their jobs or perhaps just don’t care about professional ethics or their sworn duties. They apparently believe that in ruling on a legal document they should ignore the actual document that is being challenged, and instead rely on speculation about the opinions of the document’s creator, and act to protect certain rights of immigrants and foreigners that the Constitution does not assign to them.

Under 8 U.S. Code § 1182(f) Congress granted the President broad discretion to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program.

That section reads: “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.” This section of the law goes on to assign the Attorney General authority over activities by airlines bringing in non-citizen passengers, further assigning complete authority over entry to the country to the executive branch of the government, not the judiciary.

The law is crystal clear in its meaning, and does not provide as exceptions to the power of the President the personal opinions of federal judges or the beliefs or motives that these unelected referees ascribe to the president.

Perhaps the reason these judges didn’t want to rule on the actual language and effect of the Order is that it disagrees with their personal opinions. The Heritage Foundation’s Hans Von Spakovsky, a former Department of Justice lawyer, told Breitbart, “I don’t think [these judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the law and [Supreme Court] rulings based on their own personal policy preferences.”

He notes that, despite the plain text of the law and prior Supreme Court decisions, these rulings are “destructive of the rule of law, which is the entire basis of our Republic.” This, he said, “is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight the way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”

Indeed. What can be worse for a country that lives by the rule of law than to have some judges that do not follow or honor the law or the Constitution, but instead make law from the bench or twist laws to suit their personal or political preferences? That is what liberal judges do, and this behavior has reached crisis proportions.

These legal rulings raise important questions:

What is the proper response to a federal court ruling that is so plainly contrary to the law? Should the Trump administration follow a clearly illegal ruling and attempt to overturn it though a lengthy appeal process, or defy the federal courts?

What should happen to judges who issue rulings are at odds with laws and the Constitution that they are sworn to uphold?

Aren’t these judges directly responsible for any harm done to American citizens as a result of persons with the intent to do harm getting into the country by virtue of their rulings?

Cross-posted from Observations

Democrats renew gun control measures for the campaign and beyond

The New York Times sees a renewal of Democrat’s efforts to increase restrictions on guns. The newspaper says that after 20 years of holding back on the gun control initiative, “a string of mass shootings involving high-powered weapons, rising anxiety about domestic terrorism, and killings of and by police officers have emboldened Democrats. They say the shootings are intensifying support for gun control, elevating weapons policy to a top-tier issue, with particularly strong appeal to suburban female voters.”

Democrats, The Times says, will press the case for new restrictions in political races across the country that will include expanded background checks, new limits on gun purchases and increased scrutiny on gun makers and dealers, all of which is buoyed by polls they say show strong support for these measures.

National Rifle Association (NRA) spokeswoman Jennifer Baker said, however, the American public would ultimately reject added gun control because Democrats, while cloaking their gun agenda in the language of “common sense,” really want to go much further. “The political elites and D.C. politicians don’t understand Middle America,” she said. “They don’t understand that voters support the Second Amendment and the individual right to self-protection.” The NRA says Clinton would put an individual’s right to self-defense at risk.

Connecticut Democrat Senator Christopher Murphy agrees that Clinton and other gun control advocates are committed to making the issue a major theme of the campaign, and should she win the November election will continue it in her presidency. “This issue is a core value for Hillary Clinton and it is good politics,” Murphy said. 

Clinton’s running mate, Virginia Senator Tim Kaine, also supports the idea that gun control will be a presidential initiative. Kaine has long been an advocate for stricter gun laws, moved by the mass shooting at Virginia Tech in 2007 when he was Virginia’s Governor. The shooting, in which a South Korean student with mental health problems killed 32 students and faculty, prompted Kaine to seek to bar the mentally ill from acquiring guns. 

This idea has merit, but is fraught with potential danger in the hands of liberals, who so often fail to use due care in creating policy, and create as many problems as they solve. Liberals have the bad habit of indulging in what Dr. Thomas Sowell calls “stage-one thinking,” which ignores possible downstream results in order to rush through some “wonderful” idea.

In fact, the 2016 Democrat Party Platform states: “While responsible gun ownership is part of the fabric of many communities, too many families in America have suffered from gun violence. We can respect the rights of responsible gun owners while keeping our communities safe.” 

One of the favored talking points in support of restricting the rights of law abiding citizens to protect themselves and their families, and restrict their use of firearms for sport and recreation is that 30,000 people die in America each year from guns.

For the sake of discussion, let’s accept that 30,000 figure, which – taken all by itself, without context – is shocking. That’s a lot of people. 

However, when context is applied, that number seems substantially less damning. Considered as part of the roughly 320,000,000 total population of the United States, it represents just .0001 percent. That means each American has a one in ten thousand chance of dying from a gunshot each year. And that doesn’t dig down into the details of gun deaths, showing how many are accidents, suicides, or justified shootings.

According to the Centers for Disease Control (CDC), more than 20 times more people die from heart disease each year than from guns, and nearly that many die from cancer. More people – 42,700 – die from “intentional self-harm (suicide)” than from gun violence. 

In 2013, according to DrugWarFacts.org, which cites data from the CDC, motor vehicle deaths totaled 35,369, all homicides were 16,121, and in 2014, drug overdoses claimed 47,055 lives. 

Gun deaths do not appear on the list of the top ten causes of death in America. In fact, The Times quotes FBI data showing slightly more than 8,000 gun homicides in 2014, quite a difference from the overhyped 30,000 figure.

Conspicuously missing from the liberal tirade is that guns are inanimate objects, incapable of doing anything on their own. Like such things as hammers, kitchen knives and automobiles, guns are under the control of their user. Is this simple concept too complex for liberals to understand?

Or perhaps it just gets in their way: They know and understand that a disarmed populace is a compliant populace.

The Patriot Post notes, “This year’s [DNC] platform doesn’t even bother to mention the words ‘Second Amendment’ … Drafters opted instead for the meaningless tripe about how ‘gun ownership is a part of the fabric of many communities.’ Fabric can be changed. Rights endowed by our Creator cannot.”

The actions of average Americans tell a story different from Democrats. Townhall.com reports that women obtaining concealed carry permits increased at twice the rate of men from 2012 to 2016. And the Crime Prevention Research Center notes that the murder rate fell by16 percent between 2007 and 2015.

Yet again Democrats are wrong about what Americans think.

The Constitution is under attack, and from an unexpected source

Commentary by James Shott

Just when you think you have heard the silliest thing possible, someone comes along and slaps you in the head with something sillier yet.

It is no secret that lots of Americans do not appreciate or honor the U.S. Constitution, and millions have no clue what it is, what it means, or why it exists. Among those we do not expect to find in that group are people trained in the law, and especially those who have been elevated to the judicial bench through appointment or election. Of course, every group has its eccentrics, even the judiciary.

To wit: Richard Posner, a judge in the United States Court of Appeals for the 7^th Circuit, who expressed an idea on Slate.com that baffles those of us who honor the country created for us 200-plus years ago, and the controlling document, the U.S. Constitution, the law of the land that has been the anchor keeping our republic relatively stable all these years. It has done so to the extent it has been followed, and its principles upheld by those specially trained folks who study the law.

Said Posner: “I see absolutely no value to a judge of spending decades, years, months, weeks, days, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” which he followed with: “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc. of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post-Civil War amendments (including the 14th), do not speak to today.”

Education, it seems, is frequently incomplete. For example, some doctors seem to have not had the class in Bedside Manner 101. News journalists often appear not to have heard the idea that news reporting requires impartiality and accuracy. Many teachers at all levels do not understand that their job is not indoctrination, but the presentation of, and assistance in helping students understand their subject.

Posner apparently missed the class where it was discussed how the Constitution could be improved through amendments, and also where one should have learned about the concept of principles, like those set forth in the Constitution.

A principle, in this sense, is a broad concept, not merely a list of specifics. For example, the First Amendment to the Constitution guarantees the right of free speech, the freedom of religion, etc. to all Americans, and the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Constitution is not intended to limit its protections to only those threats that existed in the 1700s, but also to any that may arise thereafter. 

Giving Posner credit not substantiated by his comment, let us assume that he understands that a nation must have laws. Since he does not respect the fundamental law that now exists, if we take his argument that the Constitution is old, outdated and therefore useless, what are we supposed to replace it with? Whatever ideas are the most popular? Or the ideas that a particular group of judges like best? Or, worse yet, what each judge and law enforcement official decides ought to be legal and illegal.

Would he prefer a set of rules proposed by the sitting president? Or, would he prefer a set of “living” rules that changes with the winds of popular opinion?

Posner’s article does not address that aspect.

Even with the protections of the Constitution, we see frequent over-stepping by government officials and agencies that ignore its limits on government, so without it how would the citizens of the United States be protected from government excesses? By what measures could we keep our government from becoming just another tyrannical body like communist China or North Korea?

The Constitution in Article III, Section 1, provides: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…” This runs contrary to the widely accepted idea that federal judges are appointed for life or until they decide to step down. Clearly, the Framers foresaw that a judge might exhibit behavior other than “good Behaviour,” in which case he or she is subject to removal from the bench.

With that in mind, several judicial watchers have suggested that Posner’s idea of discarding the Constitution, the document he is sworn to uphold, warrants his impeachment, and also said that a Congress that took both Posner’s oath and its oath seriously would impeach him.

However, Posner is protected by the provisions of the very document he so disdains and wants done away with, the First Amendment’s protection of free speech, which was written not to protect speech with which we agree, but speech that is not popular to some, and even critical of the government. This includes criticism of the Constitution, even by someone so high in the judicial hierarchy as a federal Circuit Court judge.

Our freedoms are now under more serious attack than ever before since the nation’s founding, by political correctness and those who find some protections inconvenient, and now by some charged with defending them by upholding the Constitution’s protections.

Cross-posted from Observations

America’s long, difficult trek from tyranny and oppression to …

Commentary by James Shott

North America’s colonists were necessarily daring and independent, otherwise they would not have ventured to the New World. Being so far from Mother England, they needed and were able to establish colonial governing bodies, which could levy taxes, muster troops, and enact laws.

As time passed the colonies strengthened, and began seeing themselves as independent states, and their obedience to and dependence on the British Crown was receding into the background.

As the future leaders of the United States grew into those roles in the colonial legislatures, they also studied the ideas of the Enlightenment: the social contract, limited government, the separation of powers and the consent of the governed, ideas at odds with the heavy hand of King George.

The colonies found many things imposed by England objectionable, such as the Sugar Act that increased duties on sugar imported from the West Indies; the Currency Act that devalued Colonial currencies; the Quartering Act that forced colonists to house and feed British soldiers if necessary; the cruelty of the British Army at the Boston Massacre; the Stamp Act taxing many common items; and the Tea Act that spawned the Boston Tea Party.
 

Nearly two and one-half centuries later we are again facing a heavy hand, this time not from a monarch, but from the government created by those colonists after they had had enough heavy handedness, and fought for and won their freedom.

Our government’s objectionable activities from the recent past include an inspector general’s report showing that the IRS had targeted conservative groups for lengthy and onerous review of their applications for non-profit status. And cases such as when an Army veteran heard banging on his door before dawn, then he and his two young boys spent several hours in police cars in their jammies as a Department of Education SWAT team searched his home because his wife, who didn’t live there any more, had defaulted on her education loans.

A program of the Department of Justice called “Operation Chokepoint” is used to put the financial squeeze on legal industries the administration doesn’t like, such as firearms sellers and payday lenders.

Another program known as civil asset forfeiture allows police to seize, and then keep or sell, any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.

Wonder how the colonists would have reacted to these outrages had they been perpetrated by King George?

Today, the federal government has its fingers in virtually every aspect of our lives, and often it is very involved. Its activities no longer are effectively limited as directed by the U.S. Constitution. The federal government largely controls education at the local level, regulates mud puddles on private property, and now has taken control of the way Americans receive their healthcare.

With the force of law it now espouses positions based not upon Constitutional principles, but based upon ideology and political impulses.

One of the most ominous to date is the effort announced earlier this month to use the full force of the federal government, which has adopted one side of a vigorous debate on the effects of humans on the world’s climate, to criminally charge businesses that argue against the government’s chosen position with racketeering under RICO laws.

“Treating climate change as an absolute, unassailable fact, instead of what it is — an unproven, controversial scientific theory — a group of state attorneys general have announced that they will be targeting any companies that challenge the catastrophic climate change religion,” say Hans von Spakovsky and Cole Wintheiser in The Daily Signal.

Ignoring America’s principle of freedom of thought and speech, New York Attorney General Eric Schneiderman said last month, “The bottom line is simple: Climate change is real,” and he is threatening to pursue companies he claims are committing fraud by “lying” about the dangers of climate change “to the fullest extent of the law.”

The coalition “AGs United For Clean Power” consists of 15 state attorneys general as well as the AGs of the District of Columbia and the Virgin Islands. In addition to Schneiderman are Kamala Harris, California; William Sorrell, Vermont; Mark Herring, Virginia; Maura Healey, Massachusetts; Brian Frosh, Maryland; George Jepsen, Connecticut; and Claude Walker, the Virgin Islands, and representatives from Illinois, Iowa, Maine, Minnesota, New Mexico, Oregon, Rhode Island, Washington State and D.C.

Unsurprisingly, sixteen of the seventeen are Democrats, while the Virgin Islands AG is an independent. And no farcical climate inquisition would be complete without the participation of former vice president and climate change beneficiary Al Gore.

U.S. Attorney General Loretta Lynch admits that the Justice Department is discussing the possibility of pursing civil actions against climate change doubters, and that the FBI has been asked to consider if it meets the criteria for federal law enforcement to take action. Tyranny rears its ugly head.

When the political left cannot prevail through the strength of its arguments in the arena of free ideas, it resorts to force. That is unconditional surrender, a testament to the failure of liberalism as a practical ideology.

Cross-posted from Observations

Democrats have never done what 47 Republican senators did to Obama

Dissatisfied with President Barack Obama’s approach to Iran’s continued march toward acquiring nuclear weapons, 47 Republican Senators signed an open letter that was sent to the leaders of the Islamic Republic of Iran. Arkansas freshman Sen. Tom Cotton authored the letter, which was signed by all but seven Senate Republicans.

This action has been termed “unprecedented,” and has brought forth the wrath of Democrats in Congress and the administration. Vice President Joe Biden, for example, declared that "In 36 years in the United States Senate, I cannot recall another instance in which senators wrote directly to advise another country … that the President does not have the constitutional authority to reach a meaningful understanding with them.”

Secretary of State John Kerry expressed similar sentiments: “This letter ignores more than two centuries of precedent in the conduct of U.S. foreign policy,” and went a step further by saying that in his 29 years in the Senate he had “never heard of or even heard of being proposed anything comparable to this.”

Senate Minority Leader Harry Reid, D-Nev., said, “Republicans are undermining our commander-in-chief while empowering the ayatollahs. We should always have robust debate about foreign policy, but it's unprecedented for one political party to directly intervene in an international negotiation with the sole goal of embarrassing the president of the United States.”

Other criticisms charged Republicans with trying to undercut the president by inviting Israeli Prime Minister Benjamin Netanyahu to address Congress without first consulting the White House, and then by sending this letter to subvert an agreement that would avoid war, as MSNBC’s Mika Brzenzinski charged on the Morning Joe program. And the pièce de résistance: the New York Daily News cover calling the Republican letter signers “traitors.”

Some law professors, pundits and news media charge that the Republican senators have committed treason by violating the Logan Act of 1799, which states: "Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both."

And now for the rest of the story.

Predictably, there is far more heat than warranted here, Treason? No. Traitors? No. Gross amounts of hyperbole? Absolutely! Deliberate deception! Of course.

The Logan Act is not a factor here because, first, many legal authorities believe the Act is constitutional, as it infringes on the free speech guaranteed citizens by the U.S. Constitution, but also because the senators represent one of two houses of a co-equal branch of government, and therefore acted with the authority of their position, which also allows them to take a part in agreements with other nations.

Most important, however, is that despite the breathless overstatements by critics of the letter-writers, this action is not at all unprecedented, and in fact some of the loudest critics have themselves indulged in similar acts.

Take Secretary of State John Kerry, for instance. In 1971 during negotiations by President Richard Nixon and Secretary of State Henry Kissinger trying to reach an end to the Vietnam War, then-Sen. Kerry, D-Mass., as leader of the anti-war group Vietnam Veterans Against the War, travelled to Paris to meet face-to-face with the North Vietnamese delegation, which was at the time an enemy combatant nation.

In 2007 then-Speaker Nancy Pelosi, D-Cal., met fact-to-face with Bashar al-Assad while President George W. Bush was in negotiations with the Syrian leader.

Another Speaker, Jim Wright, D-Tex., talked face-to-face with Nicaragua’s Daniel Ortega in 1987.

Senator James Abourezk, D-S.D., secretly met with Palestine Liberation Organization chairman Yasser Arafat in 1973.

In 2006 Senators John Kerry, D-Mass., Chris Dodd, D-Conn., Bill Nelson, D-Fla., and Arlen Spector R-Pa., (who soon after became a Democrat) traveled to Damascus when the policy of the Bush administration was to isolate the Bashar al-Assad regime.

The Left has a problem remembering these inconvenient facts, which are probably contained in emails at the State Department or the IRS.

Furthermore, the letter was an open letter, not a private communication and presented facts about our constitutional system the Iranians likely did not know, not a negotiation.

The letter explained that any agreement between President Obama and the Iranian leaders binds only President Obama; future presidents will not be bound by it. Only treaties ratified by the Senate bind the U.S. That is a significant point.

Further, the negotiations may well involve the president unilaterally undoing sanctions against Iran passed by the Congress. That is a no-no; he does not have authority to do that.

It is certainly fair to criticize the fact that the message was presented in a letter addressed to Iranian leaders, instead of, say, being run as an op-ed in one or more national newspapers. However, that is about the worst aspect of this molehill called Mount Treason.

The United States of America: “a nation of laws, not a nation of men”

 Commentary by James Shott

A primary element that has separated the United States of America from virtually every other nation in history is the concept of it being “a nation of laws, not a nation of men.”

“A nation of laws” means that laws, not people, rule. Everyone is to be governed by the same laws, regardless of their station; whether it is the most common American or Members of Congress, high-ranking bureaucrats or the President of the United States; all must be held to the just laws of America. No one is, or can be allowed to be, above the law.

This idea was paramount in the complex process of establishing the United States of America, a young nation whose brave leaders had put everything on the line to escape the tyranny and oppression of the British Crown, which at the time was a nation ruled by people, in the person of King George III.

The Founders wrote restrictions into the Constitution against bills or laws of attainder, which are laws that do not apply equally to everyone, but target specific persons or groups in their enforcement, and are also known as “bills of pains and penalties.” In the hands of corrupt officials, these laws could be used as a weapon that would give an incumbent politician a major advantage over anyone else.

Can there be a better way for a nation to deal with its citizens than treating all of them equally under the law? About the only people who would disagree with this concept are those who are in a position, or want to be, to abuse the law and use their official positions unfairly, or those who benefit from that abuse.

Sadly, there are plenty of these un-American folks on the loose.

If laws are too numerous, abusive, designed to help or penalize one group at the expense of others, that nation is not a nation of laws.

A nation of laws will not permit or tolerate laws designed for reasons other than justice, and it will not permit or tolerate laws that are ignored or selectively enforced because of some official’s political whim.

"We're a nation of laws, not of men and women," Senate Majority Leader Harry Reid declared, talking about a Nevada rancher refusing to pay grazing fees on land he and his ancestors grazed for free, until recently. Someone needs to remind Sen. Reid that what is good for the goose is good for the gander. He condemns one of his constituents for not obeying the law, but himself failed to bring a federal budget before the Senate for years, as required by Article I of the US Constitution.  He has violated his oath of office and terms of the Constitution, and has done so without penalty.

Attorney General Eric Holder earned the wrath of a federal judge for directing prosecutors to pursue shorter prison sentences for drug crimes before new guidelines for sentencing had been approved. “The law provides the Executive no authority to establish national sentencing policies based on speculation about how [the U.S. Sentencing Commission] and Congress might vote on a proposed amendment,” Judge William H. Pryor, Jr. remarked. AG Holder also advised state Attorneys General that they do not have to enforce laws they disagree with, which essentially renders laws meaningless. Apparently, Mr. Holder thinks only those laws individual government officials believe in are important. He does not have authority create these policies.

And then there is the President of the United States, Barack Obama. He who rules by Executive Order is at the top of the list of those destroying the ideal of  “a nation of laws.”

It’s not about the good intentions of an Executive Order; it’s about process, and the fact that in the United States we have a detailed process for changing laws, and that process does not empower the president to do so unilaterally. Congress must amend a law, or the judiciary can strike down an unconstitutional law.

So, when the Affordable Care Act (ACA) that the president so strongly advocated came up far short of the miracle we were told it would be, Mr. Obama suspended parts of the law to mitigate the harm it would cause, but that is not allowed by the Constitution. It ought to strike everyone as dangerous when the president says things like if Congress won’t do what he wants, he’ll use his pen to do it through an Executive Order. Perhaps he does not understand that the executive branch is equal to the legislative branch; the president is not more powerful than the Congress.

Speaking of Congress, it’s habit of shirking its law-making duty by passing legislation that enables administrative agencies to create and implement rules with the force of law goes a long way toward undermining the “nation of laws” concept. The Founders made Congress the law-making branch of the government, and did not allow for Congress to pass that duty to the executive branch.

The sad truth is that the United States is not functioning as a nation of laws today. That status must be restored, and soon, or our very freedom is at risk.


Cross-posted from Observations

VA failure is a symptom of a bloated and over-reaching government

Sometimes, something beneficial results from a horrible tragedy. The intolerable chaos at Veterans Affairs is one such tragedy from which something useful emerged: America finally knows how out of control the VA has become.

It’s horrible that it took the mistreatment of thousands and the lives of at least 40 American veterans, who trusted their government to provide them adequate care in return for their service to the country, to bring this to the nation’s attention, but now people are aware, and they are angry about this disgusting situation.

The VA has had been a mixed blessing for veterans, providing good care to many, but treating others with neglect. The problems started a long time before Barack Obama was elected President of the United States, but the confusion and malfeasance we see today have grown to be far worse recently, despite Presidential assurances beginning seven years ago that it would be repaired.

“As president, I won’t stand for hundreds of thousands of veterans waiting for benefits. We’ll make sure our disabled vets received the benefits they deserve,” candidate Obama declared in 2007.

“I know you’ve heard this for years, but the leadership and resources we’re providing this time means that we’re going to be able to do it. That is our mission, and we are going to make it happen,” President Obama said in 2009.

And, he said a year later: “At the same time, every American who has ever worn the uniform must also know this:  Your country is going to take care of you when you come home.  Our nation’s commitment to our veterans, to you and your families, is a sacred trust.  And to me and my administration, upholding that trust is a moral obligation. That’s why I’ve charged Secretary Shinseki with building a 21st century VA. We’re going to keep on making historic commitments to our veterans.“

The President made similar promises in 2012 and 2013. They made no difference. Just empty words, like “If you like your health care plan, you will be able to keep your health care plan. Period.” Instead of action to fix the problems and discipline the bad behavior, many VA workers got bonuses.

It is very difficult to fire a federal employee for virtually any reason, because they belong to a union. Why do federal employees, who work for the entity that makes and enforces the rules of the workplace, need a union, and why did the government agree to allow a union to protect taxpayer-funded employees from discipline or dismissal for misfeasance?

The disgraceful performance of the VA is not the only example of a federal government out of control and drastically in need of overhaul. It is not just fat and sloppy, it is a danger to the freedom and safety of the citizens that it was created to serve and protect.

Several other agencies also fail their duty of service. It’s difficult to pick the worst offender from among the IRS, which used its power to attack political enemies; or the Department of Education, which sent a SWAT team to find a woman who had defaulted on a few thousand dollars in education loans; or the EPA, which has attempted to impose penalties for spilt milk and wants to regulate mud puddles on private property.

Let’s not forget the Bureau of Land Management, which has taken control of thousands of acres of state-owned land, ostensibly to protect a “threatened” species of turtle which is thriving, except for being killed off by that same federal agency; or the Department of Justice, whose Operation Choke Point goes after companies the administration considers politically objectionable, like those that sell guns, despite the fact that they are legal businesses.

These agencies could cause much less mischief with a staff half the current size. Currently, there are nearly 3 million federal civilian employees, about one for every 115 citizens. Last year the average total compensation for a federal civilian employee was about $133,000. Cutting the civilian workforce in half could save approximately $360 billion annually. What a boost to the private economy that would be, and what a relief from the overreaching of the bloated and mismanaged federal bureaucracy.

Of course, bad government is not limited to the feds, it also occurs at the state and local level, and also involves over-achieving and foolish behavior. A candidate for governor in Minnesota was in a park collecting signatures to get on the ballot. When police discovered he didn’t have the required permit, he was handcuffed and taken to headquarters.

Police were within their authority to arrest the man, but was that really necessary or desirable, or even sensible? Could they not simply have told him to stop and go get a permit? After all, in a country where a large number believe it’s wrong to require proof of citizenship in order to vote should a candidate be required to obtain a permit to “advertise” in order to get signatures to place his name on the ballot?

None of this is what America is supposed to be about. Someday enough people may figure this out and demand a return to good government.A

Election protections in the US Constitution are being circumvented

Commentary by James Shott

Back in the good ol’ days, school kids studied history and civics where they learned how and why America came to be. And they came away from that with an understanding of the wisdom the Founders applied in creating this country.

They learned that the first governing document was not adequate to accomplish the desired goals. The Articles of Confederation reflected the Founders’ profound and well-grounded fear of a too-strong national government, gave too much independence and control to the states, and had other problems that failed to provide a solid foundation for a cohesive nation.

Their solution to that misstep was to develop a new governing document that gave enough power to the federal government to hold the union together, but left the states with a significant degree of control and autonomy.

The Founders created a unique and enlightened form of government that prevented a small minority of self-serving people from controlling the masses, and also prevented a majority of citizens from imposing its will on the minority.

In creating the US Constitution to replace the Articles the Founders considered having Congress select the president, but the president would then be beholden to the Congress, confounding the idea of three co-equal branches of government. They also considered state legislatures or governors selecting the chief executive, but those ideas, too, were rejected. And they rejected electing the president through a purely popular vote, because they wanted to balance the power of the larger and smaller states. 


On this point, before being elected president then-US Sen. John F. Kennedy noted, “Direct election would break down the federal system under which states entered the union, which provides a system of checks and balances to ensure that no area or group shall obtain too much power.”

The deliberations on how best to select the president ultimately resulted in the creation of the Electoral College. But now there is an effort afoot to do away with this beneficial safeguard of the US Constitution that the Founders meticulously developed to best serve the citizens of their country.

Changing the Constitution requires amending the Constitution, and that requires the consent of two-thirds of Congress and three-fourths of the states; very difficult and unlikely to be accomplished any time soon.

The National Popular Vote (NPV) plan claims its purpose is “to ensure that every vote for president is equally valued no matter where it is cast.” However, it seeks to make this change without a Constitutional amendment. The Founders realized there might be legitimate reasons to change the Constitution, but also understood that such changes must have broad support among the citizenry and it therefore should not be too easily done. The system for amending the Constitution is demanding, as it should be.

Rather than approach this important change the proper way, by putting it before the people and the Congress through the amendment process, NPV advocates decided to take a short cut and simply subvert the Constitution through a back-door agreement.

The mission statement of the NPV initiative should therefore read: “Things aren’t working out to suit us, so we need to change the rules.” Its campaign seeks to obtain the consent of the majority of the 538 votes in the Electoral College to award electoral votes to the winner of the national popular vote instead of the winner of the popular vote in each state, a system in which the inmates run the asylum.

The president will be chosen not by the electors voting as the voters of their state determine they should vote, but under the terms of an agreement among themselves.

This effort to buy control of presidential elections must be the work of the evil Koch brothers, or the TEA Party, right? Nope. It is uber leftist Hungarian-American multi-billionaire George Soros pulling the strings.


Ten states have already signed up for this subversion: New York, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California and Rhode Island. The District of Columbia also has joined the scheme.

Since the Electoral College protects the balance the Founders created with deference to states with smaller populations and by ensuring that the interests of these states be reflected in national decision-making, circumventing it through the NPV creates serious problems, according to former Federal Election Commission member Hans A. von Spakovsky:

** Recounts would be both more prevalent and more problematic.
** It could destabilize America’s two-party system, leading to a higher incidence of close elections and recounts.
** Provisional ballots could also lead to an extensive, widespread, and complex battle that could further delay and confuse the results of a presidential election.
** The plan would encourage vote fraud.

According to Mr. von Sapkovsky, “The NPV is unconstitutional because it would give a group of states with a majority of electoral votes the power to overturn the explicit decision of the Framers against direct election. Since that power does not conform to the constitutional means of changing the original decisions of the framers, NPV could not be a legitimate innovation.”

The NPV is yet another liberal idea that upon analysis turns out to be a lousy idea. Is it also criminal?

Cross-posted from Observations

Cattle grazing standoff in Nevada ends peacefully with BLM retreat

Commentary by James Shott

Thankfully, the standoff at the Bundy ranch in Nevada ended fairly peacefully. Bureau of Land Management (BLM) Director Neil Kornze made a good decision, and the correct decision, when he pulled his officers out after returning some 400 head of seized cattle to the land on which they had been grazing. He took the action “because of our serious concern about the safety of [BLM] employees and members of the public.”

The Internet is rife with stories about this incident from national and local news outlets including ABC, the local CBS channel KLAS-TV, Newsmax.com, the Los Angeles Times, the Las Vegas Review-Journal, the Associated Press, and others.

Some will say that rancher Cliven Bundy was at fault in this incident. Mr. Bundy raises cattle on the ranch his grandfather started in the1870s, and he and his ancestors and neighbors have been grazing their herds on this land for well over a hundred years.

The federal government, through the BLM, took control of a huge area in Nevada when a tortoise that makes its home there was labeled “threatened” many years ago. In order to graze their cattle there, ranchers had to pay a fee. The new paradigm engendered the shutting down of several ranches, Mr. Bundy asserts, and he refused to be one of them. He continued to graze his cattle there and has refused to pay the fee on the basis that the federal government had no right to take control of the land that belonged to the State of Nevada.

He and others dispute the stated reason for the federal encroachment, the “threatened” tortoise. They say that the tortoise is not endangered at all, and that even if it was, cattle do not harm the habitat or the tortoises. Thus, the federal government had no basis for the take-over, and the court actions against him are therefore moot.

After losing court actions, Mr. Bundy still grazed his cattle on the land for years without paying. In response to a court order, the BLM recently sent an estimated 200 heavily armed officers and police dogs to the area and began rounding up the cattle.

And that’s when the revolt against what protesters viewed as over-reaching on the part of the BLM/federal government starting building steam. The protestors began rolling in from across the country. Some were armed and some were on horseback, reportedly attempting to free cattle seized by the BLM.

Tensions grew and were aggravated when Mr. Bundy’s son was shot twice with a stun gun, and a BLM officer tackled Mr. Bundy’s 57-year-old sister to the ground.

As tensions grew among the protestors, and the potential for violence grew, Director Kornze made the decision to return the captured cattle and withdraw the BLM personnel.

Some believe the federal retreat signals a victory for Mr. Bundy and his supporters. Others believe the federal intervention was a test to determine whether, and to what extent, the American people will stand up against federal over-reaching. Whatever the case, it has gotten the attention of millions of Americans.

Now it’s time for answers to some important questions about the BLM and its actions, and the basis for the court decisions. The most important of these questions is: Where does the federal government find the authority for the BLM to take control of land belonging to a sovereign state?

Some legal authorities say that the Bureau of Land Management action is a direct violation of Article 1, Section 8, Clause 17 of the US Constitution. That clause, the Enclave Clause, authorizes Congress to purchase, own and control land in a state only under specific and limited conditions, such as “for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” It does not mention uses such as to protect endangered animals.

Legal scholar Mark Levin said that the BLM negotiated agreements with Mr. Bundy and other ranchers many years ago for water rights, grazing rights, and for building roads and irrigation. The BLM then changed the rules in what Mr. Levin called a “systematic and deliberate campaign to drive ranchers out of Southern Nevada.” The fact that Mr. Bundy is the lone remaining rancher in the area adds credence to this charge.

And why swoop in with heavily armed federal agents and forcibly take Mr. Bundy’s cattle? This action is not only uncalled for, but is dangerous and irresponsible. There are other methods for the federal government to get what it is due in fees without armed force.

It is an encouraging sign that so many Americans from so many states felt strongly enough about this issue to travel to Nevada and stand beside Mr. Bundy and his family in the face of federal tyranny.

Each time the government oversteps its bounds, the people complain, but usually to no avail. Let us hope that this time the message that the government that exists only to serve the best interests of Americans will not be allowed to endlessly abuse them.

People are more important than animals, and the American people are more important than their government. Our government and our leaders need to be reminded of their proper place.

Cross-posted from Observations

End of an error? The State of the Union campaign event needs to go

End of an error? The State of the Union campaign event needs to go

The State of the Union address to Congress is really just a routine presidential duty defined in Article II, Section 3 of the U.S. Constitution, ratified in 1787-88: "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."

That simple requirement to update the Congress and recommend certain things the president thinks are important has evolved into the political orgy we now witness each year.

We have become accustomed to the spectacle of last week because that is the way the message has been delivered for a hundred years. However, there is no requirement for the president to actually appear before the Congress and orally deliver the message. And in fact, beginning with Thomas Jefferson's first State of the Union in 1801 and lasting until William Howard Taft's final message in 1912, the State of the Union was a written, often lengthy, report sent to Congress at the beginning of a new Session of Congress.

It’s time to return to the more sensible and less hype-driven process of Jefferson through Taft, because instead of a restrained message addressing the problems the country faces and perhaps some discussion of the successes that it has experienced, for years we’ve been treated to a campaign event all dolled up into a grandiose political revue that is little more than an exercise in political expedience.

It is a stage perfectly set for the delivery of propaganda with no real-time truth detector. The president says whatever he wants to say, and with the possible exception of a sour expression on the face of someone in the audience, or an unacceptable verbal complaint like the one back in 2009, there is no contrary opinion expressed until after the speech when the opposition party responds. By that time, many have tuned out, and given the setting and the pomp, and the fact that people still respect the office enough to often accept a president at his word, the damage is pretty much done.

Remaining true to form, at this year’s address President Barack Obama did not let the opportunity pass without making sure he got his points across, even if they were at odds with reality.

No less a dependable source for advocating liberal positions than The Washington Post identified six of Mr. Obama’s claims that attracted the attention of fact-checkers, presenting them in “a guide through some of President Obama’s more fact-challenged claims.”

In one of them the president noted, “the more than eight million new jobs our businesses have created over the past four years.”

Subtracting the jobs created not by businesses, but by government, that number is actually 7.6 million, and that number is correct, as far as the claim goes. The Post says the net new jobs created during the Obama administration is 3.2 million, and that there are 1.2 million fewer jobs today than when the recession began in December 2007.

Further, Newsmax reports that by last April, the number of Americans on food stamps had grown by 16 million since January 2009, which is more than twice as many people as got jobs.

“Our deficits — cut by more than half,” Mr. Obama bragged.

However, according to The Post, ”the federal budget deficit has declined in half since 2009, from $1.3 trillion to about $600 billion, but that’s not much to brag about. The 2009 figure was not just a deficit Obama inherited from his predecessor, since it also reflected the impact of decisions, such as the $800 billion stimulus bill, enacted early in the president’s term.

“Moreover, the deficit soared in the first place because of the recession, so as the economy has improved, the deficit naturally decreased.  The United States still has a deficit higher than it was in nominal terms and as a percentage of gross domestic product than it was in 2008 and a debt much greater as a percentage of the overall economy than it was prior to the recession.”

The only beneficiaries of this sort of event are the president and his fellow party members. Those who take the president at his word – and that certainly includes the millions of Americans who do not investigate what they read and hear – are less well informed than before the address.

One thing the president was accurate about was his intention to continue using Executive Orders to enact measures the Congress won’t pass, or to change them to his liking. Apparently, the former constitutional law lecturer doesn’t remember the full text of the authorizing language for the State of the Union, with emphasis on the phrase “recommend to their Consideration.” It does not say, “tell them the edicts he will issue if the Congress does not act.”

President Obama needs a remedial class in what the Constitution means. The Executive and the Legislative Branches are co-equal, along with the Judicial Branch; the president cannot make law, dictate what laws Congress will pass, or alter laws he does not like.

Why won’t the Congress stand up and defend its Constitutional prerogatives and obligations and make the president behave constitutionally?

Federal government willfully breaches constitutional protections

Commentary by James Shott

On Aug. 16, 2012, Chesterfield County, Virginia police, Secret Service and FBI agents arrived at Brandon Raub’s home, asking to speak with him about his Facebook posts. Mr. Raub, a decorated Marine who has served tours in Iraq and Afghanistan, uses his Facebook page like millions of other Americans, to post items and comments, including his political opinions.

Without providing any explanation, levying any charges or reading him his rights, law enforcement officials handcuffed Mr. Raub and transported him to police headquarters, then to John Randolph Medical Center, where he was forcibly detained in a psychiatric ward for a week against his will.

For having the temerity to express his opinions Mr. Raub was kept in custody for an evaluation based on the opinion of one Michael Campbell, a psychotherapist hired by local law enforcement that had never interviewed Mr. Raub, but somehow felt he was capable of determining that the former Marine might be a danger. Psychiatrists at the mental institution, however, found nothing wrong with him.

According to The Rutherford Institute, which is representing the former Marine, in a hearing on Aug. 20 government officials pointed to the Facebook posts as the reason for incarceration. While Mr. Raub stated that the Facebook posts were being read out of context, a Special Justice ordered that he be held up to 30 more days for psychological evaluation and treatment. But Circuit Court Judge Allan Sharrett ordered his immediate release a short time later because the concerns raised by the officers were “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.”

When the government’s case came before U.S. District Judge Henry Hudson in Richmond, Va., he dismissed it.

Mr. Raub then sued the officers for taking him into custody without sufficient cause and for his subsequent mistreatment. A request by the offending officers to dismiss the case against them has been rejected.

“Brandon Raub’s case exposes the seedy underbelly of a governmental system that continues to target military veterans for expressing their discontent over America’s rapid transition to a police state,” said John W. Whitehead, president of The Rutherford Institute.

“While such targeting of veterans and dissidents is problematic enough, for any government official to suggest that they shouldn’t be held accountable for violating a citizen’s rights on the grounds that they were unaware of the Constitution’s prohibitions makes a mockery of our so-called system of representative government. Thankfully, Judge Hudson has recognized this imbalance and ensured that Brandon Raub will get his day in court,” he said.

Judge Hudson has ordered limited discovery allowing Rutherford to demand what information federal and local authorities knew about Mr. Raub before he was detained for a mental evaluation.

The Institute called the decision a victory for free speech and the right to be free from wrongful arrest and presented facts indicating that the involuntary commitment violated Mr. Raub’s rights under the First and Fourth Amendments of the U.S. Constitution.

The complaint alleges that the attempt to label Mr. Raub as “mentally ill” and his subsequent involuntary commitment was a pretext designed to silence speech critical of the government.

A Richmond Times-Dispatch story noted: “Much of the information about Raub’s alleged mental condition was developed after his arrest and emergency mental assessment, but [Judge] Hudson notes in the opinion [allowing the suit against law enforcement officials] that “there is no indication that any defendant was aware of the specific contents of (emails and statements Raub was making) before Raub’s arrest."

Attorneys from The Rutherford Institute charge the seizure and detention were the result of a federal government program code-named “Operation Vigilant Eagle” that involves the systematic surveillance of military veterans who express views critical of the government, according to information on the Institute’s Web site.

Of “Operation Vigilant Eagle” the Wall Street Journal reports that “the Federal Bureau of Investigation [in 2009] launched a nationwide operation targeting white supremacists and ‘militia/sovereign-citizen extremist groups,’ including a focus on veterans from Iraq and Afghanistan, according to memos sent from bureau headquarters to field offices,” and that “a similar warning was issued … by the Department of Homeland Security.”

So, the FBI and Homeland Security view military veterans who have served in Iraq and Afghanistan like white supremacists and extremist groups, and then on flimsy or non-existent evidence, take them into custody and confine them for mental evaluation?

It will be interesting to see how the government and these agents defend their action at trial.

Many, perhaps most Americans, are well served by state and local law enforcement that behave within the law and respect the privacy and freedom of those they serve until evidence is presented warranting arrest. However, those who initiated and carried out the persecution of Brandon Raub, including the psychotherapist, deserve to be strongly disciplined and perhaps fined and criminally charged for their illegal and unconstitutional behavior, and when the case is resolved, maybe they will be.

Such a resolution would likely get the attention federal officials who improperly unleash the force of government against innocent citizens, and restore respectful treatment of citizens by the government that exists to serve them.

Cross-posted from Observations

The “progressives”: Advancing un-American ideas for fun and profit

 Commentary by James H. Shott 

They once called themselves “liberals,” but as practiced here in the U.S. through the years that word gathered lots of negative energy, casting adherents in a bad light, so they changed their moniker and now call themselves “progressives.”

But the term “progressives” is a misnomer, unless you consider it progress for America to slowly abandon the freedom that was once our hallmark, and move instead toward being more under the thumb of an increasingly over-reaching government.

To demonstrate how off-the-mark some progressives’ thinking is, consider the following:

On ESPN’s “Around the Horn,” a frequent guest named Kevin Blackistone said that football games should not include the singing of the national anthem during the pregame, calling the “Star-Spangled Banner” a “war anthem.”

Mr. Blackistone was addressing controversy over Northwestern University’s American flag-themed football uniforms, designed to raise money for the Wounded Warriors Project. In the “Buy or Sell” show segment he said he would “sell” the uniforms: “I'm going to sell it for the same reasons. If you sell this along with me, you should also be selling the rest of the military symbolism embrace of sports. Whether it’s the singing of a war anthem to open every game. Whether it’s going to get a hotdog and being able to sign up for the Army at the same time. Whether it’s the NFL's embrace of the mythology of the Pat Tillman story. It has been going on in sports since the first national anthem was played in the World Series back in 1917. And it’s time for people to back away.”

Mr. Blackistone clearly is a man who neither understands nor cares for America.

And this from Mary Margaret Penrose, a Texas A&M School of Law professor, who expressed her frustration with the fact that President Barack Obama has failed to pass more gun control since the crime at Sandy Hook Elementary.

Prof. Penrose said gun laws should be decided on a per-state basis, versus the 2nd Amendment to the U.S. Constitution: "The beauty of a states' rights model solution is it allows those of you who want to live in a state with very loose restrictions to do so." She went on to say that her problems with the Constitution are not limited to the Second Amendment, and advocates in her law courses redrafting the entire U.S. Constitution.

Is advocating abandoning the supreme law of the land acceptable in helping law students learn about and understand our system of laws?

More wisdom from the halls of academia comes from Professor Noel Ignatiev of the Massachusetts College of Art and Design, who tells his students things like this: “If you are a white male, you don’t deserve to live. You are a cancer, you’re a disease, white males have never contributed anything positive to the world! They only murder, exploit and oppress non-whites! At least a white woman can have sex with a black man and make a brown baby but what can a white male do? He’s good for nothing. Slavery, genocides against aboriginal peoples and massive land confiscation, the inquisition, the holocaust, white males are all to blame! You maintain your white male privilege only by oppressing, discriminating against and enslaving others.” He suggests that all white males should commit suicide.

Two thoughts arise from this; first, we should enthusiastically applaud the professor’s recent decision to stop “teaching,” and second, since he is a white male, ask why he is still alive and see if he will continue to be a hypocrite, or if he will follow his own advice.

Not to be outdone in the expression of un-American ideas, The Washington Post had its own expert academic opinion from Jonathan Zimmerman, who professes history and education at New York University.

“Barack Obama should be allowed to stand for re-election just as citizens should be allowed to vote for — or against — him,” he wrote. “Anything less diminishes our leaders and ourselves.”

The professor must have missed that part of his history education when Congress proposed an amendment to the Constitution to limit the president to two four-year terms, and why it did so. The 22nd Amendment was ratified in 1951, following FDR’s election to four terms, having been approved by the legislatures of three-fourths of the states. It prevented the likely possibility of a “president for life” evolving and creating a situation like the one the Colonies suffered under that led to armed revolt. A “president for life” is not unlike a monarch.

Maybe he thinks monarchy is superior to the form of government the Founders created, the obligation of which was to guarantee basic freedoms to the people it was created to serve. If it’s oppression he wants, there are many countries to which he can relocate.

A major feature of progressivism is to limit the liberties our ancestors fought and died for in the naïve hope of creating a perfect society. Over the last century or so they have chipped away enough of the protections and guarantees that the system doesn’t work as it was designed to, and their solution is to continue to destroy it, rather than to restore it. 

Cross-posted from Observations