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

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

Tortured reasoning transforms an unconstitutional mandate into law

 

Commentary by James H. Shott

Last week U.S. Supreme Court Chief Justice John Roberts joined Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy in correctly identifying the individual mandate in the Patient Protection and Affordable Care Act as unconstitutional. That is what the Supreme Court is expected to do: follow the original intent of the authors, who created a document to protect America from over-reaching government actions like this one.

Writing for the Court’s majority, Chief Justice Roberts said: "The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." He continued, correctly identifying the chaos that would result from finding the mandate constitutional: "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority." Exactly. But the majority didn’t stop there.

Instead they decided the individual mandate is not really a mandate, it is a tax, essentially rewriting the statute and thereby making “Obamacare” the law of the land. But if, as Justice Roberts wrote, you cannot regulate individuals “because they are doing nothing,” how then can you tax individuals because they are doing nothing? This turns the definition of “taxation” on its head, taxes typically being levied on working, buying and owning, as opposed to levying taxes on not working, not buying, or not owning.

What exactly caused the Chief Justice, criticized by liberals for his judicial conservatism, to depart from his expected position? Many of those familiar with his thinking say the decision is in keeping with his values — conservative in his judicial views, but also considering the Court’s reputation. If the Court is seen as too conservative – adhering to the Constitution’s original intent too often – it may become unpopular with liberals.

Others believe he worked a brilliant bit of judicial magic by striking down the mandate, but upholding the statute’s constitutionality as a tax, preserving President Barack Obama’s signature accomplishment and allowing him to save face, but at the same time giving the law’s opponents a way to correct its many flaws.

Whatever the motivation, the ruling unfortunately opens the door for darn near any activity – or lack of activity – to be taxed by the federal government. As the legendary Chief Justice John Marshall famously said, “The power to tax is the power to destroy.”

Andrew P. Napolitano, former judge of the Superior Court of New Jersey, writing in The Washington Times, sees it this way: “If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.”

This statute epitomizes dishonorable legislative methodology and bad law-making. Obamacare has been very unpopular with the public since it was first hatched, and it still is. Yet the Democrat majority in the House of Representatives lurched ahead, conceiving the bill behind locked doors, and the 2,700-page monstrosity was passed by the House before members even had time to read it. Remember then-House Speaker Nancy Pelosi arrogantly telling American citizens that they couldn’t know what was in the bill until Congress passed it? Senate Democrats bought enough votes with pricey concessions to key states to eventually pass the bill.

The measure was advertised vociferously by President Obama and his fellow statists as a mandate, not a tax, and it would not cause any American “making less than $250,000 a year to pay one dime more in tax.” The Act has now been upheld by the highest court in the land because it is a tax, not a mandate, and among the 21 new taxes are seven affecting those making less than $250,000 a year, some already in effect, according to Forbes.com.

They are: 1. The Individual Mandate Excise Tax, the higher of $1,360 or 2.5 percent of adjusted gross income; 2. The Over-The-Counter Drugs Trap denying use of pre-tax funds in special accounts to buy over-the-counter medicines for allergy relief and the like without a doctor’s prescription; 3. The Healthcare Flexible Spending Account Cap of $2,500; 4. The Medical Itemized Deduction Hurdle, increased from 7 to 10 percent of adjusted gross income; 5. The Health Savings Account Withdrawal Penalty of 20 percent, up from 10 percent; 6. The Indoor Tanning Services Tax of 10 percent; 7. The Cadillac Health Insurance Plan Tax of 40 percent.

The Democrats are celebrating their prize legislation’s Alice-in-Wonderland survival of judicial review, but now have to figure out how to explain to the American people that the bill they swore was not a tax on the poor and middle class really is a tax on the poor and middle class, in fact, the biggest tax hike in history.

You cannot sensibly praise the Supreme Court for upholding your flawed law, and then claim that the basis upon which it was upheld was incorrect. That twisted logic is beyond even the Obama administration.

Cross-posted from Observations

Taking the Law to the Lawless

By Mark L Harvey

Seeing that the anti-Americanists have managed to subvert the judiciary in this nation to the extent that more unconstitutional laws have been passed than constitutional ones, I was wondering if we could use the courts to reverse that trend. One never knows.

So, I went to my attorney that I have used for years for many things and made an appointment for one of those 30-minute free consultations. I presented my idea/desire to my attorney and that 30-minute free consultation lasted more than two hours.

At issue was the viability of a lawsuit against congress for violating the constitution.

I was asked what I would settle for, how much money I was looking for, what kind of damages was I wanting to be compensated for, etc.

I told them that I was not seeking damages in a monetary settlement. I was demanding that either the United States federal government either return to our Constitutional Republic or make the changes they wanted to make by constitutional amendments instead of passing federal laws which made the path clear for legislating around the constitution.

Like I said, over two hours later, I witnessed six lawyers getting on board with the idea. I have no idea where this is going to go but I guess that as long as I pay their fees, they will take this as far as they are able.

What I am looking for is this: 30,000,000 Americans making appointments with their attorneys via the 30-minute free consultations to begin making waves through the legal system. Can you imagine what noise that would make if all of a sudden, our unconstitutional congress critters were getting hit with law suit after law suit demanding they perform their constitutional duties?

I have a recent list of the targets located in this article: Unconstitutional House Members

There are some Senators as well but I haven’t compiled that list yet.

Remember, if you go with this idea, go to your attorneys as if you are the one making this inquiry and don’t tell them others are doing this as well. Let them talk amongst themselves and let them “discover” the Tsunami rising. Also, go armed. If you don’t know the violations against the constitution, you won’t go anywhere with this. I was able to show them the blatant and outright fraudulent behavior of the current and past sessions of congress.

We read the constitution and tried to reconcile the “will of the congress will be done” and the “will of the congress has been heard” and the “the Senate will have final say over states rights” and the “federal statutes trump states rights” garbage. I also brought to their attention where several judges told American citizens that they had no standing in questioning anything the government does. I lit a fire under four of them. Two remain skeptical. But that’s OK.

The man that owns the firm has called me twice since I was there and I may have an appointment with other attorneys from partnered firms. It was even suggested that this could very well turn into a national class-action suit. We’ll see.

So, please make your appointments and go for broke. What do we have to lose? The more important question is this…what do we have to gain?  Our country?  Our Heritage?