In case you haven’t heard, the bail reform movement is definitely picking up steam. A federal lawsuit in Florida alleges that the state’s bail system is unconstitutional and seeks to force judges there to consider the defendant’s ability to pay when setting bail in misdemeanor cases. A bail reform task force in Ohio has developed a set of recommendations to prevent defendants from being kept in jail before trial simply because they cannot afford to post a bond. Mr. Liberal Moneybags Tom Steyer is funding efforts to change the bail system in California. Delaware has joined other jurisdictions in reducing reliance on cash bail, including Arizona, New Mexico, Maryland, New Jersey and the District of Columbia. In all, more than 40 states are considering changes to their bail and pretrial detention procedures. Among the alternatives being considered are ankle monitors and evidence-based risk assessment tools to gauge flight risk.
A class action suit in Houston, Texas alleges that Harris County’s system of setting bail for indigent misdemeanor defendants violates the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution. In a preliminary ruling in February, the U.S. 5th Circuit Court of Appeals affirmed that the complainant class would likely succeed on the merits of its due process and equal protection claims. The case has been returned to the trial court for further proceedings. [Southern District of Texas #: 4:16-cv-01414]
The 14th Amendment states: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Bail in Texas involves posting a 10 percent bond, usually through a bail bond agency, or being released on personal recognizance but becoming liable for the full amount if the defendant fails to appear for the court date. Under the Texas Criminal Code, a hearing officer or judge is supposed to review the defendant’s financial circumstances, flight risk, and other factors in setting bail. But personal recognizance is denied and upfront payments are required 90 percent of the time in Harris County which strikes me, based on my experience as a criminal defense attorney in D.C., as inordinately high for misdemeanor cases.
In Harris County, bail amounts are supposed to be reviewed by a different judge within 24 hours, but defendants routinely wait days, then come under tremendous pressure to accept time-served plea deals before they are even appointed a lawyer. In D.C., by contrast, indigent defendants are appointed lawyers up front before the first hearing. Harris County deems failure to own a car as a strike against personal recognizance, so there is a circular loop where indigence itself increases the likelihood that an indigent defendant will have to post cash bond. That’s weird. The trial court reviewed the data and found that the imposition of a financial bond does not make defendants any more likely to appear than personal recognizance does. The trial court also found that defendants who were detained because they couldn’t post a financial bond had worse outcomes than those who could. They pled guilty more often, got jail sentences more often, the jail sentences were longer, and these defendants were more likely to lose their job. The whole exercise appears to be counter-productive because these defendants were also more likely to commit other crimes in the future.
Harris County’s bail system treats similar flight risks differently based merely on financial circumstances. Under case law, imprisonment solely because of indigent status is considered invidious discrimination that offends both due process and equal protection. In this case, the 5th Circuit gave the bail reform movement a lot of what it wanted. Defendants must be given a meaningful opportunity to show what they can or cannot pay, the court ruled.
For you equal protection geeks out there, the 5th Circuit applied a heightened but intermediate level of scrutiny because inability to pay was resulting in deprivation of a basic liberty interest – freedom from incarceration.
Maybe I’m just a mushy-headed defense attorney, but Harris County’s bail system strikes me as unjust. However, the problem may not be the imposition of cash bonds per se, but the customary infrequency with which personal recognizance is granted in Harris County and other places around the country. I was talking about this with someone a few months ago. They said cash bond was a big problem in Philadelphia. I said it wasn’t a big problem in D.C. when I was doing criminal cases there. The difference may be that personal recognizance is pretty routine in D.C. for misdemeanor cases. Most misdemeanor defendants are released on personal recognizance and almost all show up for their court dates. Maybe the answer is as simple as setting the presumption in favor of personal recognizance in misdemeanor cases, while retaining cash bond for demonstrable flight risks. This would reconcile the competing interests at stake and afford adequate due process as well as equal protection of the law to indigent defendants. But regardless of how it’s done, we should all be able to agree that poor people should not be kept in jail or pressured to plead guilty simply because they don’t have any money.
5A: 9th Circuit allows climate change suit to proceed, sending case back to judge who believes “a climate system capable of sustaining human life” is right there in the Constitution
2A: NRA sues to block new Florida gun control measure raising age to 21, etc.
Separation of Powers: “Federal judge allows Trump to withhold grants to California as part of sanctuary city crackdown”
1A: “New Law Bans ’Free Speech Zones’ at Florida Colleges”; tucking speech away in a corner is unconstitutional
1A: Georgia colleges successfully resisting legislation to ban free speech zones; Christian speech tucked away in a corner
1A: Supreme Court deciding whether arrest on probable cause always bars a free speech retaliation claim; plaintiff hauled out of city council meeting in handcuffs
1A: “Tolerance doesn’t imply that you keep silent about speech that you hate. You challenge it, you mock it, and ridicule it; you criticize it.”
1A Religion: bill mandating elective course at all West Virginia schools to teach the Bible an unconstitutional sponsorship of religion?
1A Association: appellate court upholds power of NY Attorney General to demand nonprofits disclose $5,000 donors to him
1A Economic Freedom: North Carolina backs down from requiring make-up schools to get a license and carry useless classes
2A: rape victim files suit against ban on guns in Illinois public housing
2A: Chinese tyranny has midnight searches, arrests without a warrant – and a ban on owning handguns.
5A DP: Supreme Court rules statute does not require periodic bail hearing for detained immigrants; case sent back for consideration of constitutional issues.
5A DP: “US Judge bars revoking DACA work permits without due process”
14A DP: anti-bail movement picks up steam with backing from liberal billionaire Tom Steyer
Electoral College: suit filed to force states to replace ‘winner-take-all’ approach with proportional allocation
Separation of Powers: criminal case is an opportunity to revisit nondelegation doctrine; statute arguably defective for giving Attorney General unlimited discretion on a point
Library of Congress releases hi-quality scans of Madison’s notes to Constitutional Convention; now easy to check claims made by his detractors
New book chronicles epic struggle for women’s suffrage
On Wednesday, Attorney General Jeff Sessions announced a Justice Department lawsuit against California over its recently passed sanctuary state laws. In a speech to a law enforcement group in Sacramento, Sessions said, “Immigration law is the province of the federal government.... There is no nullification. There is no secession. Federal law is ‘the supreme law of the land.’" Sessions singled out the Mayor of Oakland specifically: “How dare you. How dare you needlessly endanger the lives of law enforcement just to promote your radical open borders agenda.” Despite the bravado, the outcome of the Justice Department’s case is not as clear-cut as it might seem.
We start with the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2 clearly says federal laws, treaties, and the U.S. Constitution are the supreme law of the land. But the only power over immigration given to Congress in Article 1, Section 8 is the power to establish a uniform Rule of Naturalization – who gets to be a citizen. The idea that the federal government could regulate other aspects of immigration, such as the deportation of noncitizens, came from the Supreme Court, and not until 1889. In the Chinese Exclusion Case, the Court found that the federal government had plenary power over immigration as a matter of national sovereignty. The federal government has inherent sovereign power when it comes to immigration, the Court ruled.
Accordingly, the Supreme Court has typically held that federal law preempts state law when it comes to immigration. In 1941, the Supreme Court knocked down a Pennsylvania statute requiring aliens to register with the state and carry a state-issued ID card. [Hines v. Davidowitz (1941)]. The state statute was preempted even though federal immigration law did not expressly declare state registration statutes preempted, and even though the statute did not impede the implementation of federal law. Most later cases have reached similar results [Chemerinsky, Constitutional Law 4th ed. p. 413], but a 1976 case [De Canas v. Bica] found that a state could by law bar the employment of undocumented aliens. The Supreme Court found that Congress had intended to allow states to regulate the employment of illegal aliens to some degree.
In the new case announced Wednesday, the Justice Department is targeting three provisions of California law. One [SB 54] prevents state and local law enforcement officials from sharing information about criminal aliens in their custody and prevents their transfer to federal custody. Here, there’s a ‘commandeering’ issue. The federal government cannot make state and local officials enforce federal law. That’s a violation of the 10th Amendment. The wrinkle here is that a federal statute tries to get around this by prohibiting higher-level state and local officials from instructing their underlings not to share immigration information with the feds. Thus, the federal government isn’t actually ordering anyone to do anything. It’s all passive. One observer calls this a distinction without a difference and expects California to prevail on this issue.
A second provision [AB 103] allows state inspections of facilities where federal agents are holding immigrants pending court dates or deportation. Some of these facilities are owned by local governments and the state, others by private contractors. The Justice Department calls this an unconstitutional interference, an attempt by the state to regulate federal detention which depends on the state gaining access to privileged federal records. The other side of the argument is that these state inspections do not really conflict with federal requirements because they do not prevent the federal government from detaining anyone, nor do they obstruct the enforcement of federal law in any way.
A third provision [AB 450] prevents private employers, unless ordered by a court, from cooperating with ICE raids, or pay a fine up to $10,000. There’s an admission in the legislative history that California deliberately did this to frustrate “an expected increase in federal immigration enforcement actions.” In the Arizona case, decided in 2012, the Supreme Court held that state law is preempted if it obstructs an objective of Congress and thus stands as an obstacle to federal aims. Workplace raids are a standard immigration enforcement tool. Preventing employers from cooperating might well constitute an obstacle or obstruction of federal law. This appears to be the strongest part of the Justice Department’s case. However, the Arizona case also contains language which suggests that the federal government’s claims of obstruction will have to be examined individually and might or might not hold up to scrutiny.
To its defenders, California is not trying to make its own immigration laws, just restrict the extent to which the state and private employers assist in the enforcement of federal law. To Jeff Sessions, the federal government is “simply asking California and other sanctuary jurisdictions to stop actively obstructing federal law enforcement.”
The Justice Department is asking for a preliminary injunction, so we should get a preliminary ruling from a federal judge fairly soon.
Supremacy Clause v. 10A – Trump admin sues California over sanctuary laws; other jurisdictions might also be sued
2A – Suit against Dick’s and Walmart for refusing to sell gun to 20-year-old looks like a winner under Oregon public accommodations statute
1A: former union boss supports ending mandatory nonmember dues; unions should have to work to appeal to people
1A: if unions lose forced dues case, expect many unions to look for workarounds to keep the money flowing
1A: No way Trump would win if he sues publisher of ‘Fire and Fury’ book; freedom demands tolerance of misinformation
1A: Michigan town blocked from prohibiting anti-abortion signs on city sidewalks; protected speech even though pictures of aborted babies disturbing
Virginia lawmaker (and U.S. Senate candidate) Nick Freitas on how Democrats prevent gun debate – hard to converse when called Nazis, NRA whores
2A: Cuba provides another example from history where disarming the people led to tyranny
2A: Condoleezza Rice’s father used guns to protect himself from the KKK in the 1960s
5A Property Rights – Supreme Court takes case that could overturn Kafkaesque process of exhausting state remedies only to find door to federal courthouse barred
8A: “Should a Fine's "Excessiveness" Turn Partly on the Defendant's Wealth?”
8A: “Does the Excessive Fines Clause Apply to the States?”
Economic Freedom - Fruit-of-their-labor clause in North Carolina state constitution may help private businesses that want to challenge regulations
Sharia incompatible with U.S. Constitution in a number of ways – self-governance, free speech, equal protection, cruel and unusual punishment, etc.
State Bar going to almost every 5th-grade classroom in Wyoming to teach Constitution and Bill of Rights
Law professor Randy Barnett starts video series on major Supreme Court cases
‘Restaurant Asks Black People to Pay More’. Then I woke up.
The law on partisan gerrymandering is a big sprawling mess. Tonight, I try to untangle some of it for you. Send a search party if I don’t re-emerge from the thicket.
The main constitutional provision that applies is the Equal Protection Clause of the 14th Amendment. This gives rise to the notion we’ve all heard of - ‘one-person, one-vote’. If districts were drawn in a straight-forward way, you would expect the end results to reflect the relative political strength of the parties. Gerrymandering is the practice of going beyond relative political strength and drawing election maps to favor the party in power and disadvantage parties out of power. But how much of a deviation from one-person, one-vote can there be before a map violates Equal Protection? 5 percent? 10 percent? Nobody knows. The Supreme Court has never enunciated a numerical test. Moreover, there are multiple ways to get to one-person, one-vote. To give a simple example, in an election with 10 seats, a party with 60 percent of all the voters could draw a map with six districts where they are in the majority and four districts where the other party is in the majority, or they could try to draw a map where they are the majority in all 10 districts. And those aren’t the only possibilities.
Gerrymandering also raises First Amendment issues. Districts drawn in a partisan way can deny free speech and the right of association where the disfavored party’s candidate has little chance to win, thus denying a political minority a fair chance to influence the political process. As if this weren’t enough, state constitutional provisions may also apply.
The Supreme Court has never struck down a map for being too partisan. In a 1973 case [Gaffney v. Cummings], the Court said it’s impossible to separate politics from the process of drawing electoral maps, so a map cannot be invalidated simply because politics are at play. The Court reiterated the one-person, one-vote formula and said maps would generally be upheld unless a litigant could prove racial or other type of discrimination. In a 1986 case [Davis v. Bandemer], Indiana Republicans drew districts resulting in the Democrats, who had 52 percent of the statewide vote, only ending up with 43 of 100 state legislative seats. This is where it gets messy. Six Justices of the Supreme Court agreed redistricting cases could be heard and not simply turned away under the Supreme Court’s political questions doctrine. Seven Justices upheld the map, four finding no constitutional violation and three by concluding it was a political question. There was no majority opinion for the Court. The disarray continued in a 2004 case [Vieth v. Jubilerer], where four Justices were of the opinion that gerrymandering cases always present nonjusticiable political questions. These Justices believed that there are no discoverable or manageable standards to decide such cases and, therefore, no basis to tell whether the Constitution had been violated. Justice ‘Swing Vote’ Kennedy voted with these four, thus deciding the case. He agreed no standards existed at that time, but standards could be developed in the future. Gerrymandering cases would not necessarily always present nonjusticiable political questions, in his view. Again, no majority opinion for the Court. A 2006 case [League of Latin American Citizens v. Perry] reinforced the impression that the Supreme Court is not anxious to get in the business of deciding the Constitutionality of electoral maps. [This paragraph is based on Chemerinsky, Constitutional Law, 4th edition, pp. 139-141 and 911-914.]
Yet, the Supreme Court currently has before it at least four redistricting cases – out of Maryland, North Carolina, Wisconsin and Pennsylvania. The Pennsylvania case is dramatic because the Democrat-controlled state Supreme Court not only invalidated a Republican-drawn map, it drew its own, issuing it before the deadline it had given the Republican-dominated legislature to draw a new map had expired. Republicans are asking the U.S. Supreme Court for an emergency stay of proceedings until the Supreme Court decides whether or not to take the case. Among other arguments, the Republicans are invoking Article I, Section 4 of the U.S. Constitution – the Elections Clause – which says state legislatures, not state Supreme Courts, shall prescribe the time, place, and manner of Congressional elections, subject to Congressional override.
We won’t know for some months whether the cases currently before the Supreme Court will provide any real guidance in redistricting matters. Stay tuned.
Republicans ask Supreme Court to block redistricting map drawn by state court, allege violation of Constitution’s Elections Clause
20 states sue to end Obamacare; upheld as a tax but, after individual mandate repealed, all that’s left is unconstitutional affront to the Commerce Clause
Idaho lawmakers reject call for convention of states to amend Constitution
Federal appeals court puffs up Title VII gender discrimination to include sexual orientation, protects gays against workplace discrimination. Supreme Court will have to decide this.
1A,14A: Libertarian, Constitution Parties win suit against South Dakota restrictions on ballot access
1A: Major suit filed against Twitter’s political censorship; California has legal doctrine recognizing some private facilities as public forums
1A: Rhode Island proposal to tax violent video games probably unconstitutional as a tax on protected speech
1A,8A,14A: proposed trespassing law in Idaho possibly overbroad; would criminalize innocent actions, critics say
1A Religion: Does Obamacare violate the free exercise clause by preventing people from turning their healthcare over to the Lord?
14A EP/DP: 5th Circuit gives anti-bail movement partial victory. Defendants must be given opportunity to show what they can pay.
14A: federal judge strikes Colorado provision requiring signatures of 2% of voters in each district for ballot initiatives; violates one-person, one-vote rule
Lawsuits filed in 4 states challenging ‘winner-take-all’ method of Electoral College
Copyrights and patents vital to success of the country; Founders far-sighted in giving Congress the power to grant them (Article 1, Section 8)
‘Dormant Commerce Clause’ theory has enabled courts to strike many restrictive state laws and create nationwide free trade zone
Thomas: rely on the text of a statute, not committee reports. Sotomayor: legislative history can be helpful
Gorsuch one year on: has voted with Thomas every time; looks to be a strong originalist.
‘United States of the Earth’ among proposed Constitutional amendments that never made it
Senator Rand PaulVerified account @RandPaul Feb 8
Government's job is not to get you stuff, or to get somebody else's stuff for you. It's to preserve your liberty.
Shame: “Leftists Demand Revolutionary War Reenactors Use Sticks Instead of Guns”. Another attack on the founding.
Framers celebrated newly finished Constitution with $15,000 worth of beer and wine
The tragedy in Parkland, Florida has been blamed on, among other things, the FBI, video games, and the Second Amendment. Blaming the Second Amendment for the shooting is like blaming the First Amendment for the New York Times always slanting stories against Trump, as they admitted they do in a James O’Keefe undercover video. The responsibility for how a right is used rests on the person exercising the right, not on the right itself. It would make no more sense to take away everyone’s Second Amendment rights, because of the Parkland shooting, than it would to take away the right to a free press from everyone just because of the despicable acts of the New York Times.
Now is a good time to remember why we have a Second Amendment right to bear arms. In 2008, the Supreme Court ruled in the Heller case that there is an individual federal constitutional right to have guns for self-defense and other personal purposes.
But the Heller case doesn’t get to the heart of the matter. We have the Second Amendment so the citizens can defend liberty and prevent tyranny. We have the Second Amendment so that, if we ever had a Hitler who tried to impose a dictatorship on us, we could stop that person. That’s the true meaning of the Second Amendment. James Madison wrote about this in the Federalist Papers, No. 46, saying that armed citizens fighting for their liberty are a barrier to “schemes of usurpation”.
Madison was writing in the context of state militias, but the Heller Court found evidence establishing an individual right to bear arms in the historical record, all the way back to 17th–century England. That puts to rest any argument that the Second Amendment is only about arming state militias. Besides, if the Founders had wanted to limit the Second Amendment to militias, they easily could have written ‘the right of the states to arm a militia shall not be infringed.’ Instead, they wrote, ‘the right of the PEOPLE shall not be infringed.’
History proves that guns in the hands of citizens deter would-be dictators and we also know what dictators do when guns are taken away. A friend of mine, who is originally from Ukraine, just sent me a Soviet-era poster urging all Ukranians to turn in their weapons. They did, and this is how 25,000 Bolsheviks with guns were able to subdue 25 million Ukranian peasants who had previously given up their guns. The result was the Holodomor, where a dictatorship deliberately starved 7 to 10 million of those peasants to death.
If Stalin doesn’t do it for you, maybe Hitler will. In a YouTube video, a survivor of the Nazi occupation of Austria talks about how the Germans pointed to accidental shootings and the need to track criminals by the serial number of their guns. So they asked people to register their guns. Before long, the Nazis were saying, ‘that didn’t work, so bring in your guns.’ But they knew who had them because people had already registered them. In other words, they made the same arguments about safety that you hear from the gun control lobby today, and used them to take over a country.
A third example comes from our own American history. You might recall the Zimmerman Telegram from World War I where Germany asked Mexico to invade the United States. Mexico’s leaders asked their generals for an opinion, and the answer came back that invading the U.S. would be a bad idea because it would be too difficult to subdue a population that possessed guns.
The current wave of enthusiasm for gun control may have started with the Parkland students, but it didn’t take long for the organized Left to take over. George Clooney’s publicist arranged media interviews for Parkland students. Michael Bloomberg is funding a new group called Everytown for Gun Safety. The group took out a two-page ad in the New York Times. Big money has also poured into the movement from Oprah Winfrey, Steven Spielberg, and George Clooney. Organizers are renting 14 Jumbotrons and thousands of chairs for a gun control rally on March 24th in Washington, D.C. The radicals behind the Women’s March are behind a national school walkout scheduled for March 14th. A Democratic political action committee has put up billboards.
Democrats in various states want new laws requiring the licensing of gun stores, and banning AR-15s, high-capacity magazines, and gun assembly kits. Trump himself has called for “comprehensive background checks” and observers are worried that may lead to a gun registry, the first step to confiscation of all guns.
The Second Amendment protects our right to have guns. But we don’t let people have tanks or rocket-propelled grenades. So where do you draw the line? Bump stocks? High-capacity magazines? Reasonable people can differ, but here’s the problem: gun control advocates are not reasonable people. They’re playing for all the marbles. They won’t be satisfied until guns are completely taken away from everyone and the Second Amendment is no more. They’ll keep salami-slicing the issue until there’s no salami left.
I’ve said many times that the rise of the authoritarian Left is the central challenge of our time. The authoritarian Left wants ALL of your freedom. So why should you give them ANY of it? They have made discussion and compromise impossible. They’re not interested in saving lives. If they were, they would be engaging us on ideas like metal detectors, armed security guards and teachers, and police substations in schools. But, no, they have a one-track mind: gun control. It’s their way or the highway.
The only rational response to these budding tyrants is ‘no deal’ – winner take all. If we settle for gun store licenses, universal background checks, and gun registries, it won’t be long before all of our freedoms are gone.
The only reliable guarantee against tyranny in the U.S. is the Second Amendment. It deters wannabe dictators and keeps us free. It’s up to every thinking person in America to keep the Second Amendment top of mind and strong.
2A: Supreme Court lets stand California law that requires a 10-day waiting period after all gun sales; won’t hear case
2A: Justice Thomas dissents from Supreme Court’s denial of certiorari in California gun control case; calls 2A a “disfavored right”
1A (Religion): 4th Circuit rules against Trump’s latest travel ban – “animus towards Islam”; ban in effect while Supreme Court deliberates
1A (Association): Nonprofits in NY must turn donor names over to the state; landmark case NAACP v. Alabama doesn’t apply because not same prospect of violent retaliation (2nd Circuit)
4A: Hospital’s running extra tests, notifying child services in suspected child abuse case not an unreasonable search (6th Circuit)
14A EP: ‘Free the NIP!’ Women in Ft. Collins fight for equal right to brandish their breasts (case on appeal) http://thefederalist.com/2018/02/15/federal-judge-rules-unconstitutional-forbid-women-going-topless-public/
14A EP: No, you cannot form a new mostly white school district to exclude minorities (11th Circuit)
14A DP: prosecutor showing two-third’s completed picture of Space Shuttle to jury, asking what is it?, made inappropriate analogy to explain reasonable doubt
Limited Government: “Constitutional role morality” - legislators who complain about judicial activism should respect their own constitutional limitations
Quill Project launches new collaborative research platform featuring original texts of historical documents such as constitutions and treaties
Shame: “CA High School Bans ‘Racist’ National Anthem from Pep Rallies”. Inclusiveness is one thing; sacrificing all other considerations including the Constitution for the sake of diversity is quite another.
On Thursday, the U.S. Court of Appeals for the Fourth Circuit in Virginia ruled against President Trump’s latest travel ban on six largely Muslim countries, plus North Korea and Venezuela. The appeals court found that the ban unconstitutionally discriminates against Muslims.
In December, the 9th Circuit in California found that Trump had exceeded the scope of his authority in issuing the ban. However, also in December, the U.S. Supreme Court said the ban can be fully enforced while the legal challenges work their way through the courts. The Supreme Court will hear the case in April.
On one side are groups saying the ban has a devastating impact on U.S. residents who want to reunite with their family, and on foreign students seeking higher education in the U.S. On the other side is the Trump administration which has said the ban is necessary to protect national security. The latest ban is nuanced, blocking business travelers and tourists to varying degrees in the named countries and allowing students from some.
Before the 4th Circuit judges, the administration had argued that the President has broad authority to bar foreign nationals who might be detrimental to the interests of the U.S. A multi-agency review had found that the countries specified do not share enough security-related information with our government.
The appeals court said it was free to go outside the four corners of the ban, look behind it, and consider Trump’s statements on the campaign trail and thereafter as evidence of Trump’s motive to discriminate. [opinion, pp.40-42] Trump himself called it a “Muslim ban”. The court concluded that the ban is “unconstitutionally tainted with animus toward Islam." [p. 28]
The court rejected the government’s security rationale as weak. The multi-agency review was not sufficient evidence of national security concerns because it was not made public and, therefore, cannot be examined. Moreover, the countries selected for the ban reportedly don’t fit the criteria specified in the multi-agency review. [pp. 50-51]
The addition of North Korea and Venezuela to the ban didn’t cure its constitutional defects because only a handful of people from those countries were actually affected, compared to tens of thousands from the six Muslim countries, leaving the ban with largely an anti-Muslim focus. [p. 50]
It all sounds plausible until you realize you’re in a funhouse of mirrors and shifting floors created by the Supreme Court. The Establishment Clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion….” I showed you in December how the Supreme Court has expanded this clause way beyond its original meaning which was directed towards preventing the government from establishing an official church. The clause now prevents the government from preferring or advancing one religion over another in any way, or attempting to suppress any particular set of religious beliefs. [opinion, p. 27] The Supreme Court has embroidered the Establishment Clause with all kinds of fancy filigree over the years.
As a result, it’s not enough that the travel ban doesn’t mention religion or is neutral on its face. [pp. 45-46] It’s also not enough that the ban protects national security. The government has to prove that an action’s secular purpose – national security in this case - is the PRIMARY purpose, not just ONE purpose among many, of the action. [Lemon, McCreary cases, opinion p. 44-45]
The two cases from the 4th and 9th Circuits are likely to be heard together. Some have taken the Supreme Court’s letting the ban go into effect in December as a sign it will uphold the ban when it decides the case. As the Justices like to say up there, the Constitution is what they say it is. We’ll have to wait until after April to find out what’s in it.
This is another reason why we need a constitutional amendment to allow super-majorities of state legislatures to overrule the Supreme Court on constitutional questions, but more on that at a later date.
A couple weeks ago, a writer by the name of Ryan Cooper published an article calling on Americans to “[t]row the entire Constitution in the garbage.” “The American Constitution is an outdated, malfunctioning piece of junk — and it's only getting worse,” Cooper writes. If we don’t change our entire system of government, we are headed for a constitutional collapse, he maintains.
One way of pushing back on this is immediately apparent. Throw out the ENTIRE Constitution, he says, so I guess that means we can start with his own freedom of the press by which he makes his living. Also, a lot of people fought and died for his Constitutional right to sneer at the Constitution and be well paid for it, but he doesn’t thank them in his article.
His main beef is gridlock. We don’t have a way to break legislative deadlocks, like calling snap elections the way they do in some other countries. Bipartisan compromise used to keep the U.S. government functioning, but now such compromise is nearly impossible, he says. Nearly impossible? He’s way overstating the case. Just this week, Congress passed the Bipartisan Budget Act of 2018 that the President signed into law. It was obtained fairly easily. No one had to move mountains to get it done.
Cooper recommends that America more closely resemble a parliamentary democracy like they have in the U.K. He says we should get rid of the Senate filibuster because it leads to legislative stand-offs and not much gets done. But the filibuster is not in the Constitution. It’s a Senate rule that can be changed or modified at any time. How is that an argument for throwing out the Constitution? It’s not.
We should also change the way House members are elected, Cooper says, not one to a district, but three in much larger districts to give third parties a better chance at getting seats. Again, the Constitution doesn’t say a word about political parties. So, again, he’s not shooting straight. We could do more to encourage the rise of third parties - and even evolve into a European-style system where lots of small parties form governing coalitions. We could do all this without changing a word of the Constitution. States and locales could change their threshold requirements, for example, to make it easier for third parties to get on the ballot. It wouldn’t take a Constitutional amendment to do that.
Cooper also wants us to change elections for the House from every two years to every four years. But he doesn’t say a word about why the Framers chose every two years – to keep the People’s House closer to the people. Important values would be lost if House elections were held every four years, but Cooper doesn’t even mention them.
Next, he argues the Senate is undemocratic because senators from small states can use various means to block the wishes of the majority of the U.S. population. Cooper wants to change the Senate into a House of Lords-style assembly with no power to vote on anything. Again, he is showing he is profoundly ignorant of important values. We don’t have a democracy in this country, and for good reason. We have a Republic to help keep a mob from controlling public policy. That’s the way the Founders set it up, but the word ‘republic’ is not even mentioned, much less discussed, in his article.
His biggest recommendation is to elect the President from among the members of the House – institute a parliamentary system of government, in other words. In a parliamentary system, the dominant party in a legislative chamber chooses the executive from among its members. In this, Cooper contradicts himself. Earlier, he was all hep on democracy when it came to the Senate, but he doesn’t mind denying ordinary people a say in choosing who will lead the country. He wants to take away their right to vote. That doesn’t sound democratic to me.
Separation of powers would be lessened under a parliamentary system, but that would be a good thing, in Cooper’s view. Separation of powers actually increases tyranny, he argues, because it sets up a strong executive and leads to runaway imperial Presidents. Maybe in some cases, but a parliamentary system increases the chances that a single political party can march us off a cliff. A House dominated by a single party electing a President from among its own members has no counterweight in the executive to prevent bad law from being made.
Cooper’s argument about separation of powers shows his profound ignorance once again. Read the Federalist Papers and you will understand that the main aim of the Founders was to prevent the concentration of too much power in too few hands. Clearly separating the executive from the legislative branch helps accomplish this because there are two competing centers of power instead of just one. A parliamentary system mingles the two branches, weakening separation of powers and leading to scenarios the Founders would have wanted to avoid, like a President and a House of the same party ganging up on the Senate to ram things into law. Heck, in Cooper’s ideal system, the Senate wouldn’t even have a vote. There would be no way for the Senate to stop anything.
We have enough problems with legislation being rammed down our throats, like Obamacare. We don’t need more problems along those lines. With Obamacare, one party controlled the House, the Senate, and the Presidency – a unified government, just like Cooper wants. The Democrats got their way and we’ve been fighting about it ever since. That’s better? I don’t see how. We don’t need more situations like that. A parliamentary system would make the President MORE powerful in many cases, not less.
We may not like gridlock, but it has its virtues. As the Founders knew, divided government is far preferable to the undue concentration of power or the tyranny of the majority. So embrace gridlock; gridlock can be good.
One final point: If you let assaults on the Constitution like this go unanswered, you will wake up one morning and the Constitution will be gone and all your rights with it – including freedom of the press. Please activate your networks when you see the Constitution being attacked like this, and push back.