Oh Senator Klobuchar, you ignorant ass, trying sooooooo hard to achieve maximum Wokeness
A heroin addict with nearly 20 arrests to his name allegedly dragged a cop along a busy Bronx street while fleeing a traffic stop, forcing another lawman to shoot him — and a jury just handed him an $11 million payday, The Post has learned.
Raoul Lopez took the city to court over the harrowing 2006 run-in that left him partially paralyzed on his right side, and was awarded the eight-figure sum by a Bronx jury Tuesday.
Lopez, 27 when the encounter happened, was in the midst of “a two-week-long bender” and had just scored his latest fix on Feb. 1, 2006, when he rolled through a stop sign at East 169th Street and Grand Concourse, a city lawyer wrote in papers filed in the Bronx Supreme Court case.
Sgt. Philippe Blanchard and Officer Zinos Konstantinides pulled Lopez’s Honda to a stop shortly before noon and ordered him to kill the engine, but he refused to comply, according to the filings.
Instead, when Konstantinides reached inside the car to make a grab at the keys, Lopez hit the gas, dragging the cop into traffic along bustling Grand Concourse, the documents said.
Fearing “that his partner would be maimed or killed if he did not take immediate, forceful action,” Blanchard fired a single shot, striking Lopez in the neck, the city wrote in the papers.
There are no words
One of President Donald Trump’s health-care initiatives intended as a cheaper alternative to Obamacare suffered a crucial defeat when a judge ruled the policy violates the Affordable Care Act.
U.S. District Judge John Bates in Washington on Thursday blocked new rules governing so-called association health plans, or AHPs, which let businesses and individuals band together to create group health plans that offer less expensive coverage than the ACA — but without some of its protections.
Exactly how does this help people get “more affordable” coverage? It doesn’t of course. It tramples liberty, and that is about all.
Readers may recall that Clanton, a former college professor, attacked people at a Trump rally in Berkeley with a metal bike lock, causing significant injuries. Using public violence as a political intimidation tactic is classic Antifa. He was caught on video. One of his victims required five staples to close up head lacerations.
Now we learn his punishment.
Having been charged with four felony counts of assault with a deadly weapon causing great bodily injury (although he actually struck at least seven people in the head), Clanton pleaded no contest to a misdemeanor battery charge in Alameda County Superior Court.
The felony charges against him were dismissed, and an allegation that he had caused serious bodily injury was stricken. A misdemeanor charge that Clanton wore a mask during the commission of the crime also was dropped.
Shockingly, he was let off with 3 years of probation.
Clanton doesn’t just act like an Antifa goon. He is one:
Police wrote that they had found evidence last year during a search of Clanton’s home in San Leandro linking him to “Anti-Fascists and Anarchy political groups,” according to court papers. He was not home when police arrived, so officers moved to a second address in West Oakland where they said they found flags, patches and pamphlets “associating Clanton” with antifa and anarchist groups.
Police also found selfies of Clanton dressed up in his sinister Black Bloc costume. He even has an “Iron Front” Antifa tattoo on his arm.
Good Freaking Grief
Alan Dershowitz said on Fox News this morning that because court rulings against President Trump‘s travel ban are bringing up his own past rhetoric, the argument is basically, “If Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it it’s unconstitutional.”
Here is the video
Judge Derrick Watson put a hold on President Trump’s new travel ban, which is, by law a power every president holds. But, Judge Watson decided that rule of law, and the separation of powers are silly things when compared to his feelings. After all, this is the age of feelings, so things like laws should not be allowed to interfere with Judge Watson delicate feelings. Mollie Hemingway at The Federalist lays out a lengthy and sound refutation of Judge Watson, abuse of power. Here is a sample
Trump said the temporary travel restriction was needed for national security. In issuing his temporary restraining order, Watson said Trump’s order was a result of nothing more than religious animus against Muslims. The judge’s order is predicated on what he thinks Trump wants to do, not the order itself.
Throughout the ruling, Judge Watson concedes there’s nothing about the executive order that would be problematic if not for his interpretation of Trump’s statements made in the months and years prior to issuing it. He repeatedly states his feeling that Trump had a bad motive in issuing the order.
Judges using campaign rhetoric to infer intent instead of plainly evaluating the law as written is a dangerous development. Also because the public can witness the selective use of this trick, it undermines confidence in the judiciary at a time when the judiciary can’t afford too much erosion of trust.
So, here we are. Any judge can abuse his authority to block executive orders, or maybe even legislation, not based on concerns over the constitutionality of those laws or EOs but based upon the judges suppositions. If the judge supposes, that the intent of the law or EO might not be altruistic enough, them that judge can simply wave their magic Wand of Feelings and poof, it is blocked? Oh Hell no! That is not the role of the judiciary. Hemingway looks at where this could lead
Imagine, for instance, if judges ruled that the Obama-era Health and Human Services mandate forcing nuns to pay for birth control and abortifacients against their religious will was motivated by President Barack Obama’s religious animus, since he had made derogatory comments during his campaign about people bitterly clinging to God. Judges have ruled against powerful mandates such as that one for much better reasons than a parsing of Obama’s campaign rhetoric or political speeches.
Or remember when the Supreme Court saved Obamacare by ruling it constitutional because the individual mandate — the penalty people had to pay for not buying health insurance — could be considered a tax? They ruled that way despite the fact that President Obama repeatedly maintained that the mandate was not a tax.
Again, not the constitutional role of judges, not at all. Over The Right Scoop, Mark Levin’s thought on this are very clear, and stresses an excellent point about the judicial branch’s power grab
The fact is this man has no business being a judge. He has no respect for our laws or constitution, and should be removed from his office immediately!
APPOINT AN ATTORNEY GENERAL WHO WILL PROSECUTE HILLARY CLINTON
Hillary Clinton represents everything that is wrong with the American political class. She epitomizes establishment corruption and wanton criminality, and to ignore her blatantly felonious behavior is to condone it.
REPEAL & REPLACE OBAMACARE
Of all the ruinous policies enacted by the previous administration, none is so egregious and universally despised as The Affordable Care Act. It must be eradicated like the cancer that it is and replaced with a free-market-based alternative as soon as humanly possible.
BUILD THE WALL
This is the primary reason why Donald Trump was elected president, make no mistake about it, and while its construction will not, in and of itself, put an end to illegal immigration, it will symbolize a seriousness of intent with respect to border security that has been sorely lacking in our government for decades.
APPOINT ORIGINALISTS TO THE FEDERAL JUDICIARY
When it comes to our nation’s highest courts, there are essentially two types of judges who oversee them, originalists and activists. Activistic judges believe that our Constitution is a “living, breathing” document that they are free to modify from the bench at any time and for any reason they concoct. As for originalist judges, I think Justice Antonin Scalia put it best when he said: “Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”
SLASH TAXES ON BUSINESS & RENEGOTIATE INTERNATIONAL TRADE DEALS
Reinvigorating the U.S. economy cannot occur without radically reducing taxes on the companies which make up its foundation. Business taxes amount to taxes on all Americans – be they CEOs, employees, stockholders or consumers – and trillions of dollars have been lost to our economy over the years due to government’s insistence on inflicting punitive taxation upon our nation’s most productive citizens. Adding insult to injury, pro-globalist trade policies like NAFTA have served to accelerate the decline of America’s economic vitality, and any attempts to reverse the trends of the past few decades without addressing these key points will prove futile.
DRASTICALLY CUT GOVERNMENT SPENDING & REGULATION
Cutting government spending begins with downsizing the bureaucracies infesting it. This can be done through attrition, which simply means not hiring new federal employees to replace the ones who retire for an extended period of time. Beyond that, there are scores of agencies which should be eliminated entirely, like the departments of Agriculture, Commerce, Labor, Housing & Urban Development, and the EPA for starters. Furthermore, federal regulations have become so pervasive that reducing their number by 50 percent would still leave the Federal Register with nearly 100,000 pages of growth-killing rules. Yes, certain regulatory powers must be exercised in order to stop bad people from doing harm to the rest of us, but when nanny-state know-it-alls in Washington DC decide to start telling the rest of us how much water we can use to flush our toilets or what sort of bulbs we can screw into our light fixtures, they’ve engaged in the sort of conduct that our founding fathers would have taken up arms to oppose.
By Edward L. Daley
Of all the Weasels, Roberts to me is the most contemptible. He simply sold America out
This week’s leaks show Hillary Clinton ally Neera Tanden laying out a strategy to intimidate the Supreme Court to uphold ObamaCare.
Ms. Tanden runs the Center for American Progress, the think tank that is essentially an arm of the Clinton campaign. CAP’s former chief, John Podesta, is now the Clinton campaign chairman, and on June 2, 2015 Ms. Tanden sent an email to Jake Sullivan, a key Clinton aide, copying Mr. Podesta and Jennifer Palmieri, another campaign operative.
…Ms. Tanden wrote that, “As Jennifer will remember, it was pretty critical that the President threw the gauntlet down last time on the Court, warning them in the first case that it would politicize the role of the Court for them to rule against the ACA. As a close reader of the case, I honestly believe that was vital to scaring Roberts off.”
“I’m not arguing that Hillary spend a lot of time attacking the Court,” she writes. “I do think it would be very helpful to all of our interest in a decision affirming the law, for [Chief Justice] Roberts and perhaps [Justice Anthony] Kennedy to see negative political consequences to ruling against the government. Therefore, I think it would be helpful to have a story of how progressives and Hillary would make the Supreme Court an election issue (which would be a ready argument for liberals) if the Court rules against the government.”
I heard some defend Roberts as just trying to “keep the court” perceived as non-political. I thought that odd since in doing so, he would have in fact done the exact opposite. More importantly though, Roberts forgot his duty, and offered an opinion he KNEW was unconstitutional. In short he sold his country out. He is nothing but a traitorous coward in my view. He is worse than the Left. He knew what was right and did the opposite.
In the six months that have passed since then-retiring House Speaker John Boehner and Senate Majority Leader Mitch McConnell cut a budget deal with President Barack Obama that suspended the legal limit on the federal debt until March 15, 2017, the federal debt has increased by more than $1 trillion.
The Senate passed “The Bipartisan Budget Act of 2015” with a vote held in the early morning hours of Friday, Oct. 30. Obama signed it on Monday, Nov. 2.
At the close business on Oct. 30, 2015, the total federal debt was $18,152,981,685,747.52. By the close of business on April 28, 2016 – the latest date for which the Treasury has published the number – the total federal debt was $19,186,207,744,589.55…
French Teacher At HISD School Doesn’t Speak French – KHOU
How do you teach a French class, if you don’t even speak French?
The I-Team discovered that’s exactly what is happening at the Houston Independent School District’s Energy Institute High School in the 1800 block of Sampson Street.
Sharonda White’s son Nathanial is a junior at the school.
“I thought it was a joke, I couldn’t believe this was happening,” White said.
We asked her son about his classroom experience.
I-Team: “Does your teacher speak French?”
Nathanial White: “No sir.”
I-Team: “Have you ever heard him speak a word of French?”
Nathanial White: “Bonjour, but everybody knows that.”
The teacher, Albert Moyer, said in a brief phone interview that the extent of his French education was just one year in high school.
So why was he hired? To replace Jean Cius, a certified French teacher for more than 25 years…
Court Backs Sheriff Joe Arpaio On Arizona Illegal Immigrant ID Theft Law – Washington Times
States can impose their own stiff penalties on illegal immigrants – or others – who steal someone’s identity in order to get a job, a federal appeals court ruled Monday, upholding Arizona’s strict law and dealing a setback to immigrant rights advocates.
The decision is yet another victory for Maricopa County Sheriff Joe Arpaio and, more broadly, for Arizona, which has been a pioneer in trying to find ways to punish illegal immigrants, stepping into a void left by the Bush and Obama administrations…
Muslims Think Allah Sent Gift From Sky, Mortified When They Learn What It Is – Mad World News
Believing Allah had blessed them with a beautiful gift, local Muslims quickly took in an object which fishermen witnessed fall from the sky. After spreading the news of Allah’s gracious present all over social media, the Muslims were utterly mortified when viewers told them what it really is.
The internet was abuzz with confusion and hilarity after a community of Muslims on an island in Indonesia mistook a very intimate object as being a fallen angel. The local media was quick to jump on the story, which alleged that a life-size doll was one of Allah’s angels cast down to earth. However, the porcelain-skinned figurine disappointed her Muslim saviors when they found out she was merely someone’s misplaced sex toy.
Local media have reported the bizarre incident as the possibility of a divine miracle, although they include some skepticism. The “girl” was found on a Kalupapi beach in Banggai by Pardin, a local fisherman who claims to have heard the moment of impact. After announcing his find, outlets describe locals as being jubilant over what they believe is an “angel child.”…
Foreign Student Arrested For Hiding Cameras In Bathrooms Yo Record Women Showering – Breitbart
A former student at Wheaton College has been arrested and accused of hiding “spy cameras” inside the bathroom of the college dorm room of three female students and using the cameras to record the women showering and using the bathroom.
Authorities in the Chicago suburb arrested Alexander Lim, 25, and charged him with six counts of making unauthorized videos of the female students. Lim admitted guilty to the counts so as to receive a plea deal with the Du Page County prosecutor’s office. Lim could face up to five years in prison, although the unannounced plea deal is expected to reduce his sentence…
Indian Teen Fatally Shoots Himself While Taking A Gun Selfie – Time
A teen in India shot and killed himself with his father’s gun while taking a selfie with the weapon. The 15-year-old was reportedly posing with the pistol on Friday when he pulled the trigger.
CNN reports the safety of was not on when the teen took the picture. He was taken to a hospital in India’s Punjab state, where he succumbed to his injuries on Sunday afternoon.
Police told AFP they had planned to speak to the boy if he had been declared medically fit, before his death was announced. “We think that part of the blame obviously goes to the father for not keeping his loaded gun under lock and key at their home,” officials said.
India has seen a number of accidental deaths involving selfies recently. According to AFP, a teen died earlier this year after trying to take a selfie in front of an oncoming train. CNN reports Mumbai has declared some areas “no-selfie zones” to prevent injuries…
Socialist Venezuela Sucks So Bad It Has Run Out Of Beer – Daily Caller
The latest economic casualty in Venezuela under its perpetual Bolivarian socialist revolution is beer.
Empresas Polar SA, which produces 80 percent of the beer consumed in Venezuela, halted production at the last of its four beer factories on Friday, reports The Wall Street Journal.
The company’s other three factories were shuttered over the course of last week.
Empresas Polar has laid off 6,500 employees…
Judicial Watch: Benghazi Email Trail Leads To White House – Legal Insurrection
Last week, I wrote about the emails uncovered by Judicial Watch related to Hillary’s clear knowledge, the night of the Benghazi attack, that it was a terror attack unrelated to the video she publicly blamed for starting a protest.
Emails involving the false video story lead directly to the White House and were a coordinated attempt to focus blame on the video rather than on Obama’s failed policies.
Judicial Watch reported in 2014:
Judicial Watch announced today that on April 18, 2014, it obtained 41 new Benghazi-related State Department documents. They include a newly declassified email showing then-White House Deputy Strategic Communications Adviser Ben Rhodes and other Obama administration public relations officials attempting to orchestrate a campaign to “reinforce” President Obama and to portray the Benghazi consulate terrorist attack as being “rooted in an Internet video, and not a failure of policy.” Other documents show that State Department officials initially described the incident as an “attack” and a possible kidnap attempt…
Weather Channel Founder Slams Bill Nye: Calls Him ‘A Pretend Scientist In A Bow Tie’ – Climate Depot
Weather Channel Founder John Coleman, a meteorologist for over six decades, slammed Bill Nye, ‘the science guy’ for saying that the new skeptical global warming film ‘Climate Hustle’ is “very much not in our national interest and the world’s interest.”
Coleman is featured introducing ‘Climate Hustle’ in theatres on May 2 for the one-night only showing. Nye is also featured in the panel discussion that follows the skeptical film in theatres on May 2.
“I have always been amazed that anyone would pay attention to Bill Nye, a pretend scientist in a bow tie,” Coleman said today…
A Connecticut Superior Court judge ruled Thursday that a lawsuit against the maker of a rifle used in the 2012 Sandy Hook Elementary School shootings can go forward.
Under the Protection of Lawful Commerce in Arms Act, gun manufacturers are generally not able to be held liable for crimes committed with their products.
However, Judge Barbara Bellis ruled that the PLCAA does not prevent lawyers for the families of Sandy Hook victims from arguing that the Bushmaster AR-15 rifle is a military weapon and should not have been sold to civilians.
More from the Hartford Courant:
The lawsuit accuses the Remington Arms Co. and other defendants of negligently selling to civilians a weapon the plaintiffs claim is suitable only for the military and law enforcement. At a hearing in February, Bridgeport lawyer Josh Koskoff argued against dismissing the case, saying the lawsuit’s claim of “negligent entrustment” is an exception to the Protection of Lawful Commerce in Arms Act.
Bellis agreed with the plaintiffs that she has the jurisdiction to continue with the case, but she did not rule whether or not the PLCAA actually blocks the plaintiffs and their attorneys from pursing their lawsuit.
“At this juncture, the court need not and will not consider the merits of the plaintiffs’ negligent entrustment theory,” Bellis wrote.
Koskoff, the plaintiffs’ lead attorney, was happy with the decision.
“We are thrilled that the gun companies’ motion to dismiss was denied,” he said in a statement, according to Newsweek. “The families look forward to continuing their fight in court.”
Fortunately for Koskoff, they won’t have to wait long. The two sides are due back in court Tuesday.
Former Secretary Hillary Clinton and her State Department colleagues have given “constantly shifting” stories about her secret email account, a federal judge said Tuesday, finding there’s evidence the Obama administration showed “bad faith” in how it followed open-records laws.
Judge Royce C. Lamberth said it remains to be seen whether the government did try to obfuscate matters, but said there’s at least enough smoke that Judicial Watch, the conservative interest group suing to get a look at all of Mrs. Clinton’s records, should be allowed to press for more details about how the State Department made its decisions.
“Plaintiff is relying on constantly shifting admissions by the government and the former government officials,” Judge Lamberth said.
Mrs. Clinton declined to use a State.gov email account during her term as secretary, instead using an email account tied to a server she kept at her home in New York.
All of her messages that concerned official business were supposed to be archived by the State Department, but she kept them, only returning them in December 2014, nearly two years after leaving office and only at the prompting of the House committee probing the 2012 terrorist attack in Benghazi.
That meant that during her four years in office and nearly two years afterward, the State Department was not searching those documents in response to open-records requests from Congress or the public.
Last month, the State Department finally finished processing more than 30,000 pages of Mrs. Clinton’s emails and made them public on the department’s Freedom of Information Act web page – a mammoth undertaking that has put a treasure trove of information in the public’s eye.
Judicial Watch and others argue that some 30,000 other messages Mrs. Clinton sent from her secret address during her time in office, but which she has deemed private business, should also be reviewed by the government.
The State Department told Judge Lamberth it never misled the public because it never said it was searching Mrs. Clinton’s emails in the first place. The department said that meant it wasn’t acting in bad faith when it responded to open-records requests.
Judge Lamberth, though, said more evidence is needed before those conclusions can be reached.
“The government argues that this does not show a lack of good faith, but that is what remains to be seen, and the factual record must be developed appropriately in order for this court to make that determination,” he said in a brief ruling.
The Justice Department declined to comment on Judge Lamberth’s ruling, which marks the third legal black eye for the Obama administration in recent weeks.
Last week, a federal appeals court said the Justice Department was turning the law on its head to protect the IRS from taxpayers, rather than to protect taxpayers from the IRS.
And another judge issued a “show cause” order demanding to know why the government appeared to conceal documents in an open-records case brought against a top Obama climate adviser. Judge Amit Mehta, who serves on the district court in Washington, D.C., along with Judge Lamberth, raised the possibility of punishing the administration for its actions.
Judge Lamberth’s decision Tuesday joins that of Judge Emmet G. Sullivan, also in the district court in Washington, who earlier this year granted discovery in another case brought by Judicial Watch against the State Department.
Judge Sullivan even said he was inclined to order the State Department to demand all of Mrs. Clinton’s emails – including the 30,000 or so messages she said were private business, not public records, that she sent from her secret account during her time in office.
Judge Lamberth said he’ll wait to see what Judge Sullivan decides before moving ahead with discovery in his own case.
A Manhattan judge on Tuesday lashed into a Harlem man convicted of attempted murder – telling him that “black lives don’t matter to black people with guns” before tossing him in prison for 24 to 26 years.
“Black lives matter,” Justice Edward McLaughlin told defendant Tareek Arnold, 24, as he sentenced him in Manhattan Supreme Court.
“I have heard it, I know it, but the sad fact is in this courtroom, so often what happens is manifestations of the fact that black lives don’t matter to black people with guns.”
Arnold, who is black, shot rival Jamal McCaskill, also black, four times at close range in the summer of 2015. He also has a prior gun possession conviction.
Prosecutor Meghan Hast asked for the maximum, arguing that “but for extreme luck, this would have been a homicide.”
Bizarrely, McCaskill, 39, testified for the defense and insisted that Arnold wasn’t the culprit even though the Harlem shooting was caught on surveillance video.
That spurred McLaughlin to also lash into the victim, who was in court Tuesday sitting with Arnold’s family.
“The video shows that Mr. McCaskill is an abject liar,” said the judge, who has presided over hundreds of gun cases and often rails against the city’s endemic gang violence.
After cops nabbed Arnold for the shooting, he escaped with his hands cuffed behind his back, using his shoulder to shove an officer to the ground. He was on the lam for almost a month. The jury also convicted him of escape, gun possession and assault.
Defense lawyer Mark Jankowitz requested the minimum sentence of 10 years, arguing that Arnold’s 1-year-old son would be without a father.
McLaughlin demurred: “Do not ask a judge in this room, in this building, or in this system to somehow make amends for the people who commit violent acts and who by their violent acts wind up leaving people orphaned, abandoned, fatherless, etc.”
The judge then handed down the stiff sentence.
The Republican party has been attempting to commit suicide for as long as I can remember, yet, despite its best efforts, it has somehow managed to avoid shooting itself in the head. However, if its leaders decide to confirm Barack Obama’s next Supreme Court nominee, the GOP will bleed out all over the floor, and there’s nobody anywhere who will be able to stop the hemorrhaging.
Simply put, allowing the most corrupt and incompetent president in the history of the republic to replace the recently-departed Antonin Scalia with another Sonia Sotomayor would be criminally negligent on the part of Mitch McConnell and his crew, and even the moderate, Republican rump-swabs at Fox News know it.
The time has come for these go-along-to-get-along asshats to finally take a stand in defense of liberty, justice and the U.S. Contitution, and if they should fail to do so, they will prove once and for all that they never really did give half a shit about their country.
So, do the high mucky-mucks of the GOP have a death wish? I guess we’ll find out soon enough.
The following is an article I wrote in February of 2005 about a debate on foreign law influences upon the American legal system between originalist Justice Antonin Scalia and activist Justice Stephen Breyer. I hope you find it illuminating.
WHO WILL SPEAK FOR YOU?
By Edward L. Daley
A few weeks ago I was watching a program on C-Span pertaining to the impact of foreign court opinions upon the U.S. justice system. The primary participants in the discussion were Supreme Court Justices Antonin Scalia and Stephen Breyer, and the event took place at the American University Law School in Washington D.C.
The debate revolved around questions asked by a moderator named Professor Norman Dorsen, and the first multi-part question asked was, “When we talk about the use of foreign court decisions in U.S. Constitutional cases, what body of foreign law are we talking about? Are we limiting this to foreign constitutional law? What about cases involving international law, such as the interpretation of treaties, including treaties to which the U.S. is a party? When we talk about the use of foreign court decisions in U.S. law, do we mean them to be authority, or persuasive, or rhetorical? If, for example, foreign court decisions are not understood to be precedent in U.S. Constitutional cases, are they nevertheless able to strengthen the sense that U.S. law assures a common moral and legal framework with the rest of the world? If this is so, is that in order to strengthen the legitimacy of a decision within the U.S., or to strengthen a decision’s legitimacy in the rest of the world?”
Some question, huh? I don’t think I’d be comfortable trying to answer it all in one fell swoop, and apparently neither did the two justices. Justice Scalia began his reply by stating that most of the parts of it should be posed to Justice Breyer, simply because Scalia does not use foreign law in the interpretation of the U.S. Constitution.
He stated that he will use it when interpreting a treaty, because treaties are based upon a mutual understanding of the law by the signatories thereof. That seemed like a no-brainer to me, and the point was not argued by Breyer.
Scalia went on to say that, aside from that, he refuses to use foreign decisions in Constitutional law. He argued that some justices refer to foreign law because they want to feel assured that we have the same “moral and legal framework as the rest of the world.” He then pointed out, quite matter-of-factly, that we don’t have the same moral and legal framework, and we never have.
He continued by referring to the Federalist Papers, saying that they are full of statements which make it clear that our founding fathers had little respect for the laws of European countries in that day and age, citing a passage by James Madison to that effect. He then asked the rhetorical question, should we be willing to change our laws based upon the fact that many of them are not in step with the vast majority of foreign law decisions, mentioning the issues of abortion on demand, and the exclusionary rule relative to ‘Miranda’ as examples.
He went on to ask the question, why haven’t we changed these laws if the court feels we should use foreign law… or do we just use foreign law selectively, whenever it agrees with what an individual justice would like a particular case to say? He then asked what the criterion is for citing foreign law, if doing so is not meant to be authoritative.
Justice Breyer responded by saying, among other things, that law emerges from conversations among law practitioners, law students, and academics. He recounted an event at which he was first confronted with the question of whether or not foreign law decisions should be considered by U.S. courts. He described a past seminar he’d attended with various judges and law makers wherein a Congressman had remarked that he thought it was a terrible idea to use foreign law in U.S. court decisions.
Breyer reflected that he’d told the Congressman “Of course foreign law doesn’t bind us in Constitutional law. Of course not.” But, he added, these [foreign justices] are human beings who often have problems which are similar to our own.
He mentioned that the societies about which these foreign decisions are concerned, are becoming more and more democratic, and that in a case which is similar to one he might face as a Supreme Court Justice, “why don’t I read what he says, if it’s similar enough?” Apparently the Congressman he was speaking to at the time said fine, go ahead and read it, just don’t cite it in your legal opinion.
Breyer’s response to this remark had been that since foreign courts cite our Supreme Court’s findings in their decisions, he didn’t see anything wrong with citing theirs in his. He added that by doing so, we might actually lend credibility to their laws, or as he put it, “give them a leg up.” The Congressman’s response was that Justice Breyer should simply write them a letter of approval instead, if he felt that way.
At that point, Breyer seemed to stall, relating that the Congressman had “made a point,” and then failing to explain why he felt that position wasn’t essentially correct. He went on to refer to Justice Scalia’s implication that we do not understand enough about any particular foreign decision to cite it responsibly, asking, “how do we know we cite both sides” of an argument in foreign law cases? “How do we know we look for everything?” His answer to both of those questions was that such problems arise in every sort of citation. “A judge can do what he’s supposed to do, or not,” he continued, “and we hope they do what they’re supposed to do.”
This is where he lost me, and, apparently, where he lost Justice Scalia as well. After all, the fact that American justices face decisions without looking at every possible viewpoint available in the written law, has nothing to do with the fact that foreign law systems are often completely alien to our own. It’s not a question of whether or not we are able to see every bit of available information, but rather that the systems by which other countries arrive at legal decisions are usually not very similar to ours. Also, as Scalia pointed out, other legal systems may only have adopted part of a law that has originated in the U.S. (e.g. Miranda), and ignored other parts (e.g. the exclusionary rule) that are just as important to the fundamental principle underlying that law.
I found it interesting that Justice Breyer first announced that foreign law is “of course” not binding in Constitutional law, yet followed up that point by giving reasons, ostensibly, why it should be.
Justice Scalia seemed just as confused as I was by certain points that Breyer had made, beginning his retort by declaring, “I don’t know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is that I don’t know what they ought to do. What is it that they ought to do? You have to ask yourselves, why is it that foreign law would be relevant to what an American judge does when he interprets – INTERPRETS – not writes [the law]… it [foreign law] is very useful in devising a Constitution, but why is it useful in interpreting one?”
Scalia then explained his basic theory as it relates to the interpretation of the Constitution, saying that he tries to understand what it means, and what society understood it to mean when it was adopted, adding that his philosophy used to be orthodoxy prior to the 1940s. He stated that foreign law is irrelevant to anyone who embraces that philosophy, with the exception of old English law, because of the fact that many of our legal definitions were taken from that to begin with.
He went on to relate two other approaches to interpreting the Constitution. The first, he explained, was the notion that the Constitution doesn’t mean what it meant when it was first ratified, but that it changes from era to era to conform to, as Scalia then quoted, “the evolving standards of decency that mark the progress of a maturing society.” – Troy v. Dulles, 356 U.S. 86, 101
At that point he mentioned that he detests that phrase, arguing that societies don’t necessarily mature, and that “sometimes they rot.” However, he opined, even if you buy into that theory, you are still primarily concerned with the standards of decency of Americans, not foreigners, and that the only way a person would ever be willing to accept the standards of other countries as being applicable to our standards, is if that individual espoused a third way of interpreting the Constitution.
That third philosophical approach, Scalia continued, says “I am not looking for the evolving standards of decency of American society, I’m looking for what is the best answer in my mind, as an intelligent judge. And for that purpose, I look to other intelligent people, and I talk sometimes about conversations with judges, and lawyers, and law students. Do you [the law students in the audience] think you’re representative of American society? Do you not realize you are a small, cream at the top, and that your views on innumerable things are not the views of America at large? And doesn’t it seem somewhat arrogant of you to say I can make up what the moral values of America should be on all sorts of issues?”
The whole time he was saying this, Breyer looked as if he’d just swallowed a prune pit, since he clearly understood (as did I, and probably everyone else watching) that Scalia had just implied he was arrogant. Once Justice Scalia had concluded by saying that he did not wish to undertake the responsibility of deciding what is moral and what isn’t for all of society, Justice Breyer commented, “I think that’s pretty good.”
“It’s really because I think, and I think many judges think, that your own moral views are not the answer, that people look other places for trying to find out – how to find answers,” he added. Yet once again his statement didn’t have any bearing upon the issue raised. The question isn’t whether one should look for answers as to what may be the morally right thing to do, but rather, where it is they’re looking!
Breyer pointed out that there is “nothing in ‘Blackstone,’ ‘Bracton’ or even ‘King Arthur,’ that says that cruel and unusual punishment – to determine that – you cannot look, except to England, or except to the United States… So, there’s nothing barring me.” This statement is a dead giveaway that Breyer believes it is reasonable to define morality in America based upon what other countries think, or upon what members of the legal profession think. Does it really need to be written that American moral issues should be decided by the American citizenry? Isn’t that just plain common sense?
Apparently Justice Breyer doesn’t think so. Even though he goes to the trouble of saying once again that he doesn’t look to himself to determine the answers to moral questions within the law, the undercurrent running throughout his remarks is that he’s willing to let someone other than the American people make the call.
“But I’m thinking, Well, on this kind of an issue you’re asking a human question, and the Americans are human – and so is everybody else,” Breyer states, “and I don’t know, it doesn’t determine it, but it’s an effort to reach out beyond myself to see how other people have done… So I’d have to say I’d rather have the uncertainties and I’d rather have the judge understanding that he’s looking but it’s not controlling. And I’d rather have him use it with care, hoping that the judges won’t lack the control to do so. Then I would like to have an absolute rule that says legally never. And the fact that I cannot find such an absolute rule – legally never – even in King Arthur – gives me some cause for hope.”
Hope? Hope of what?
Justice Scalia carried on the conversation by repeating the points he’d made before, discussing in greater detail certain cases in support of his argument, and stating that “One of the difficulties of using foreign law is that you don’t understand what the surrounding jurisprudence is, so that you can say, you know, Russia follows Miranda, but you don’t know that Russia doesn’t have an exclusionary rule.”
He said that it was unfair to compare American death penalty cases, and the issue of whether it is cruel and inhuman for someone to wait a dozen years before being executed, to similar foreign cases. His basic point was that foreign and American cases were not comparable because of the enormous differences in the way each system deals with the death penalty to begin with. The question of what might be considered cruel and unusual in one country would not apply to another for that reason, and, therefore, would be rendered irrelevant.
This argument seemed to be completely lost on Breyer, as was evidenced by the fact that he responded with the following statement: “Well, it’s relevant in the sense that you have a person who’s a judge, who has similar training, who’s trying to, let’s say, apply a similar document, something like cruel and unusual or – there are different words, but they come to roughly the same thing – who has a society that’s somewhat structured like ours.”
At that point Justice Scalia wisely decided to ask the moderator for a new question, and the professor’s response was to say that, “Although you have suggested your view about this, I’m still unclear about what the harm or risk is of considering foreign sources that may bear on problems that are common to both countries. For example, you mentioned the – both of you have mentioned the death penalty. Why shouldn’t U.S. constitutional decisions take account of shifting world standards on such things as the death penalty, on the execution of juveniles, on the execution of the mentally ill? Are we that far from the rest of the world in terms of the way life is lived?”
The first thing I thought after hearing this was WHAT AN IDIOT! However, even though I suspect that Scalia was thinking the same thing, he showed enough restraint to continue the conversation without becoming insulting to his host, and eventually related that in his dissenting opinion regarding a homosexual sodomy case, he’d pointed out that the court had cited only European law. “Of course,” remarked Scalia, “they [the Europeans] said it not by some democratic ballot, but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students – we know what’s moral and what isn’t.”
Breyer attempted to water down the argument, by infusing some mundane legal point into the mix, but the issue’s course was quickly corrected by Scalia when he related that, “it [the matter of selectively citing foreign decisions] lends itself to manipulation. It lends itself – It invites manipulation.” His subsequent remarks on that score were nothing short of eloquent, and were masterfully reproachful of Justice Breyer’s opinion without actually being too insulting to the man personally.
Justice Breyer was quick to change the subject, saying, “Can I go into a different topic? Because I – it’s slightly – it’s still international application. But I’m curious what my colleague thinks of this because I actually do believe, which I’ve said several times, that this is really a very dramatic issue and so forth, but it isn’t really the important issue to me.”
Of course it wasn’t the important issue to him at that point in the conversation. He’d just had his head handed to him, figuratively speaking, and was obviously perplexed as to how he could continue to address Scalia’s line of reasoning without either agreeing with him, or looking like a jackass.
Be that as it may, he then went on to talk about a few cases which were, as he put it, “much less glamorous,” rounding out his comments by asserting, “this world we live in is a world where I think it’s out of date for people to teach about foreign law in a course called ‘foreign law.’ I think it’s in date to teach in contract law or in tort law, because those are the cases we’re getting.”
I must admit that in certain cases relative to contract law, where companies deal with one another internationally, there are foreign law principles which may well permeate the meat of the matter. But the supposition that the more important and far-reaching moral arguments before the U.S. Supreme Court, pertaining to American societal norms and conventions, should necessarily be dependent upon the whims of foreign law decision-makers, merely because such is the case in the aforementioned respects, is ridiculous on its face. But then, that’s just my opinion.
Later on, Mr. Dorsen queried, “The question I have in my own mind is whether this question is a naive question. And that is, rather than looking at foreign courts to say Greece decided our way, the United Kingdom decided our way, X country decided a different way, another country has a different view, rather than thinking about these courts and cases in terms of the results to think about them in terms of the persuasiveness of the opinions, just as a New York court might look at a Montana decision and be influenced not by the result of the Montana court or the Wyoming court or the Illinois court but by the cogency of the arguments, by the depth of the reasoning, by the logic.”
To which Justice Scalia responded, “Well, you’re begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.”
Ask yourself why Antonin Scalia would say such a thing. If you understand the role of a judge in the American system of government, the answer should be obvious. It’s not his job to write the law, only to interpret it. Writing law is the job of the legislative and executive branches. Even if he disagrees with the law he’s considering, he has no lawful authority to change it, nor should it be his desire to do so. You see, Judge Scalia understands the fundamental principle behind the words “separation of powers,” and he actually practices what he preaches.
Furthermore, he proves his allegiance to the Constitution, and to the American people when he contends, “And on these Constitutional questions, you’re not going to come up with a right or wrong answer; most of them involve moral sentiments. You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think?” Although the discussion continued for nearly another half hour, nothing was said by anyone present which was more profound than that, so I won’t bother reiterating further.
Suffice it to say that if I were a Supreme Court Justice, I’d ask myself the following questions:
Do judges in the U.S., at any level of jurisprudence, consider the Constitution to be satisfactory or not?
If not, what other nation has exhibited the capacity to improve upon it, or even to approach its standards of excellence in such a way as to be worthy of my consideration of its views?
Should justices of the highest court in the land be allowed to speak for the attitudes of the American people, while simultaneously ignoring them, respectful only of the opinions of elitists from other countries, and/or the American legal intelligencia?
In short, do we really want these people making moral judgments for the rest of us?
I may not be a law professor, an attorney, a judge, or even a formal student of the practice, but it seems to me that the law should be based, at least in part, on common sense and practicality. It should also be reflective of the will of the American people, if it is to have any true weight at all.
As Ulysses S. Grant once said, “The will of the people is the best law.”
Associate Justice of the Supreme Court Antonin Scalia was found dead Saturday on a luxury resort in West Texas, federal officials said.
Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa. MySanAntonio.com said he died of apparent natural causes.
Scalia arrived at the ranch on Friday and attended a private party with about 40 people, the website of the San Antonio Express News said. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
The U.S. Marshal Service, the Presidio County sheriff and the FBI were involved in the investigation, according to the report.
Officials with the law enforcement agencies declined to comment.
A woman who answered the phone at the ranch told the Post she was unaware of the justice’s death, and no manager was available to discuss the matter.
A federal official who asked not to be named told the San Antonio Express News paper there was no evidence of foul play and it appeared that Scalia died of natural causes.
Scalia was nominated to the U.S. Supreme Court in 1986 by President Ronald Reagan.
Nearly 10% of college graduates surveyed in a poll believe Judith Sheindlin, aka “Judge Judy,” serves on the Supreme Court.
Sheindlin is an American lawyer made popular as the judge on a court show by the name of “Judge Judy.” The show features Sheindlin handling small disputes in a courtroom, but Sheindlin does not serve on the Supreme Court of the United States.
The poll, conducted by the American Council of Trustees and Alumni in August 2015 but released in January 2016, concluded from the 1,000 surveyed that college graduates “are alarmingly ignorant of America’s history and heritage.”
The survey also found 28.4% of college graduates correctly identify the father of the Constitution as James Madison. About 59% of college students surveyed believe the father of the Constitution was Thomas Jefferson, who was actually the principle writer for the Declaration of Independence.
President Obama’s effort to grant up to 5 million illegal immigrants work permits and amnesty from deportation suffered a major blow late Monday when a federal appeals court ruled it was likely illegal, in yet another move by the courts to set limits on this White House’s efforts to stretch presidential powers.
The 2-1 decision by the Fifth U.S. Circuit Court of Appeals, sitting in New Orleans, instantly forces the issue to the fore of the presidential campaigns, where all three top Democratic candidates had insisted Mr. Obama’s actions were not only legal, but vowed to go beyond them and try to expand the amnesty to still more illegal immigrants. Republican candidates, meanwhile, had vowed to undo the moves.
The decision is a huge win for Texas and 25 other states who had sued a year ago to stop the president after he declared he was done waiting for Congress and announced he was acting to “change the law” on his own.
Writing for the majority, Judge Jerry E. Smith said that statement by Mr. Obama weighed heavily against him, since only Congress has the power to rewrite the Immigration and Nationality Act.
“The INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” Judge Smith wrote.
The ruling does not mean those illegal immigrants will be deported – indeed, the judges affirmed that the administration has a lot of leeway to decide who does get kicked out on a case-by-case basis. But the decision means that while leaving them alone, the Homeland Security secretary cannot proactively go ahead and grant them work permits, Social Security numbers and a prospective grant of non-deportation for three years into the future.
The ruling also does not alter Mr. Obama’s 2012 policy granting a similar deportation amnesty to so-called Dreamers, or young adult illegal immigrants who came to the U.S. as children. Texas did not challenge that policy.
But the decision does halt the 2014 expansion Mr. Obama announced, which would have lifted the age limit on the 2012 policy so it applied to all Dreamers, and would have extended the grant of amnesty to illegal immigrant parents of U.S. citizens and legal permanent resident children. Estimates have placed the number of people who would have qualified at up to 5 million.
Mr. Obama had repeatedly insisted he was within the law, and pointed to smaller grants of “deferred action” taken by previous presidents.
The majority of the court, however, said this waiver went far beyond that scope, with Mr. Obama attempting to convert major classifications of illegal status.
Mr. Obama had argued his move, known officially as “Deferred Action for Parental Arrivals,” or DAPA, was not a major new policy, but rather a setting of priorities. He argued that Congress doesn’t give him enough money to deport all illegal immigrants, so he is within his rights to use discretion about whom to deport – and then to grant limited benefits to others who might eventually have a claim to legal status under existing laws.
Judge Carolyn Dineen King, who dissented, agreed with the president’s reasoning.
“Denying DHS’s ability to grant deferred action on a ‘class-wide basis’… as the majority does, severely constrains the agency,” she wrote.
She also agreed with Mr. Obama that the courts had no business even getting involved in the case, saying that the president alone has discretion to make deportation decisions and judges are not allowed to second-guess that.
The judges heard oral arguments in the case in July, calling it an expedited appeal because of the seriousness of the matter. That made the three months it took to issue the ruling all the more striking – and Judge King chided her colleagues for taking so long.
“There is no justification for that delay,” she said.
Courts have not been kind to Mr. Obama, a former constitutional law scholar at the University of Chicago. His move to expand recess appointment powers in 2012 was swatted down by a unanimous Supreme Court, while several environmental moves have also been blocked.
And a federal court in Washington, D.C., has ruled the House of Representatives has standing to sue over the president’s moves to try to spend money on Obamacare that Congress specifically withheld.
The immigration ruling joins those rulings as yet another instance where conservatives have turned to the courts to referee a dispute over Mr. Obama’s claims of executive power.
Immigrant-advocacy groups had been anxiously watching the case, and were devastated by the ruling.
“This is a huge setback,” said Voto Latino President Maria Teresa Kumar. “There is a shortage of justice as families live in constant fear of being torn apart from their loved ones and uprooted from their communities.”
She said she was “confident” the Supreme Court will overturn the ruling, if the case gets there.
Mr. Obama announced the amnesty as part of a series of steps last Nov. 20 designed to work around Congress, where House Republicans had balked at passing a legalization bill.
The president said that if they wouldn’t cooperate with him, he was going to take unilateral action to streamline legal immigration and to halt deportations for as many as 9 million of the estimated 11 million illegal immigrants in the country. Those steps all remain in place.
But he also wanted to go beyond that and grant some tentative legal status and benefits to about half of those illegal immigrants – chiefly by giving them work permits, which allows them to come out of the shadows, hold jobs and pay taxes above board.
Granting work permits also entitled the illegal immigrants to driver’s licenses in every state in the county, and to Social Security numbers – which meant they were even able to start collecting tax credits. In addition, some states granted them in-state tuition for public colleges.
But the money states would have to spend on issuing driver’s licenses proved to be the plan’s downfall. Texas argued that meant it would lose money under the plan, which meant it had standing to sue.
Once the judges decided that, they turned to whether Mr. Obama followed the law in making the changes. The majority concluded that he because he never sought public review and comment, which is standard for major changes of policy made by agencies, he broke the Administrative Procedures Act.
Immigrant-rights advocates demanded the Obama administration fight to the Supreme Court, but also said they’ll force the issue into the political realm as well.
Ben Monterroso, executive director of Mi Familia Vota, called on Hispanics and other voters to punish Republicans at the ballot box over the lawsuit, saying “anti-immigrant conservative politicians… are to blame.”
“We cannot control the courts, but we will have a say in political outcomes. It is now up to us – Latino voters and groups like ours that are working every day to grow our vote in the 2016 national election – to elect candidates who respect our communities and will commit to working on our issues and treating us fairly,” he said.
Editor’s Note: A group of more than 60 legal scholars released a statement last week calling on all federal and state officeholders not to accept the Supreme Court’s Obergefell v. Hodges decision – declaring a national right to same-same sex marriage – as binding precedent.
One of the signers and authors of the statement was Robert. P. George, the founder of the American Principles Project and McCormack Professor of Jurisprudence at Princeton.
“We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is,” said George. “We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.”
Below is the text of the statement in its entirety.
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional – and sound – methods of constitutional interpretation a new and ill-defined jurisprudence of identity – one that abused the moral concept of human dignity.
The four dissenting justices are right to reject the majority opinion in unsparing terms.
Justice Scalia refers to it as “a naked judicial claim to legislative… power; a claim fundamentally at odds with our system of government.”
Justice Thomas says the opinion “exalts judges at the expense of the People from whom they derive their authority” as it perverts the meaning of liberty into an entitlement to government action.
Justice Alito calls attention to the well-established doctrine that the “liberty” guaranteed by the due process clause protects only those rights “that are deeply rooted in this Nation’s history and tradition,” and that it is “beyond dispute that the right to same-sex marriage is not among those rights.” He further points to the opinion’s tendency to reduce the purpose of marriage to “the happiness of persons who choose to marry.” He warns it will be used to “vilify Americans who are unwilling to assent to the new orthodoxy” and is yet another example of the “Court’s abuse of its authority.”
Chief Justice Roberts says “the Constitution leaves no doubt” that the majority’s “pretentious” opinion is incorrect. It even attempts to “sully those on the other side of the debate” in an “entirely gratuitous” manner.
If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:
First, society will be harmed by being denied the right to hold out as normative, and particularly desirable, the only type of human relationship that every society must cultivate for its perpetuation. This compelling interest is strengthened by the fact that there is strong evidence to support what common sense suggests, namely, that children fare best when raised by their married mother and father who are both responsible for bringing them into the world and who provide maternal and paternal influences and care.
Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugal union – the covenantal partnership of one man and one woman – will be vilified, legally targeted, and denied constitutional rights in order to pressure them to conform to the new orthodoxy.
Third, the new jurisprudence of dignity is unlimited in principle and will encourage additional claims to redefine marriage and other long-established institutions.
Fourth, the right of all Americans to engage in democratic deliberation, and ultimately self-government, will be decisively undermined.
Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.
In 1788, James Madison wrote, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
In 1857, Abraham Lincoln said, “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” If a decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.
Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.
We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is.
We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.
We call on all federal and state officeholders:
To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.
To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.
To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.
We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law. Lincoln regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution. Our position is summed up in Lincoln’s First Inaugural Address:
“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.
(Institutional affiliations are for identification purposes only)
Bradley C. S. Watson, Philip M. McKenna Chair in American and Western Political Thought and Professor of Politics, Saint Vincent College
John C. Eastman, Henry Salvatori Professor of Law & Community Service, Dale E. Fowler School of Law at Chapman University
George W. Dent, Jr., Professor of Law, Case Western Reserve University School of Law
Robert P. George, McCormick Professor of Jurisprudence, Princeton University, Founder of American Principles Project
Matthew J. Franck, Director, William E. and Carol G. Simon Center for Religion and the Constitution, Witherspoon Institute
Daniel J. Mahoney, Augustine Chair in Distinguished Scholarship, Assumption College
Stephen H. Balch, Director, Institute for the Study of Western Civilization, Texas Tech University
Mickey G. Craig, William & Berniece Grewcock Professor of Politics, Hillsdale College
Paul Moreno, William and Berniece Chair in US Constitutional History, Hillsdale College
Lucas E. Morel, Class of 1960 Professor of Ethics and Politics, Washington and Lee University
Joseph M. Knippenberg, Professor of Politics, Oglethorpe University
Susan Hanssen, Associate Professor of History, University of Dallas
Wm. Barclay Allen, Dean Emeritus, Michigan State University
Daniel C. Palm, Professor of Politics and International Relations, Azusa Pacific University
Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University
Scott FitzGibbon, Professor of Law, Boston College Law School
Stephen Casey, Casey Law Office, P.C.
James C. Phillips, J.D.
Joshua W. Schulz, Associate Professor of Philosophy, DeSales University
John S. Baker, Jr., Professor Emeritus of Law, Louisiana State University Law Center
Ralph A. Rossum, Salvatori Professor of American Constitutionalism, Claremont McKenna College
Walter Schumm, Professor of Family Studies, Kansas State University
Anne Hendershott, Director of the Veritas Center for Ethics in Public Life, Franciscan University of Steubenville
Gerard V. Bradley, Professor of Law, University of Notre Dame
Christopher Wolfe, Professor of Politics, University of Dallas
Michael D. Breidenbach, Assistant Professor of History, Ave Maria University
Robert Koons, Professor of Philosophy, University of Texas at Austin
Stephen M. Krason, Professor of Political Science and Legal Studies, Franciscan University of Steubenville; President, Society of Catholic Social Scientists
Micah J. Watson, William-Spoelhof Teacher-Chair in Political Science, Calvin College
Daniel Robinson, Fellow, Faculty of Philosophy, University of Oxford
David Novak, J. Richard and Dorothy Shiff Chair of Jewish Studies and Professor of Religion and Philosophy, University of Toronto
Adam J. MacLeod, Associate Professor of Law, Thomas Goode Jones School of Law, Faulkner University
Robert Lowry Clinton, Emeritus Professor of Political Science, Southern Illinois University Carbondale
Colleen Sheehan, Professor of Political Science, Villanova University
Peter W. Wood, President, National Association of Scholars
Michael M. Uhlmann, Professor of Politics and Policy, Claremont Graduate University
John Agresto, Former president of St. John’s College, Santa Fe, and the American University of Iraq
Mark T. Mitchell, Professor of Government, Patrick Henry College
Carol M. Swain, Professor of Political Science and Law, Vanderbilt University
Nathan Schlueter, Associate Professor of Philosophy, Hillsdale College
J. Daryl Charles, Affiliated Scholar, John Jay Institute
Ted McAllister, Edward L. Gaylord Chair and Associate Professor of Public Policy, Pepperdine University
David R. Upham, Associate Professor of Politics, University of Dallas
Thomas D’Andrea, Fellow, Wolfson College, University of Cambridge; Director, Institute for the Study of Philosophy, Politics, and Religion
Daniel Mark, Assistant Professor of Political Science, Villanova University
Hadley P. Arkes, Edward N. Ney Professor of Jurisprudence Emeritus, Amherst College; Director, James Wilson Institute on Naturals Right and the American Founding
Philip Bess, Professor of Architecture, University of Notre Dame
Jeffery J. Ventrella, Senior Counsel and Senior Vice-President of Student Training and Development, Alliance Defending Freedom
Teresa S. Collett, Professor of Law, University of St. Thomas School of Law
Jay Bergman, Professor of History, Central Connecticut State University
Robert L. McFarland, Associate Dean of External Affairs and Associate Professor of Law, Thomas Goode Jones School of Law, Faulkner University
Carson Holloway, Associate Professor Political Science, University of Nebraska, Omaha
Gary D. Glenn, Distinguished Teaching Professor Emeritus, Northern Illinois University
Paul A. Rahe, Charles O. Lee and Louise K. Lee Chair in Western Heritage, Hillsdale College
Angelo Codevilla, Professor Emeritus, Boston University
Bradley P. Jacob, Associate Professor of Law, Regent University School of Law
Raymond B. Marcin, Professor of Law Emeritus, The Catholic University of America
Matthew Spalding, Associate Vice President and Dean, Allen P. Kirby Center for Constitutional Studies and Citizenship, Hillsdale College
James A. Davids, Associate Professor of Law, Regent University School of Law
Ken Masugi, Senior Fellow, Claremont Institute
Edward J. Erler, Professor of Political Science Emeritus, California State University, San Bernardino
James W. (Jim) Richardson, Board of Directors, Christian Legal Society
Robert F. Sasseen, President and Professor of Politics Emeritus, University of Dallas
Lynne Marie Kohm, John Brown McCarty Professor of Family Law and Associate Dean of Faculty Development and External Affairs, Regent University School of Law
Several weeks ago, a federal court issued an injunction against EPA enforcement of a new rule based on the Clean Water Act, arguing that the Obama administration had exceeded its Congressional authority. The ruling only applied in the thirteen states party to the lawsuit, however, but the administration still argued that the North Dakota court did not have the jurisdiction to rule on the issue, and that only an appellate court could hear the case. Regardless, the EPA announced shortly afterward that it would continue to enforce the new rule in all other states.
Be careful what you wish for. The Sixth Circuit handed down its own injunction against the rule today, and broadened its effect to all 50 states:
A federal court ruled Friday that President Obama’s regulation to protect small waterways from pollution cannot be enforced nationwide.
In a 2-1 ruling, the Cincinnati-based Court of Appeals for the Sixth Circuit delivered a stinging defeat to Obama’s most ambitious effort to keep streams and wetlands clean, saying it looks likely that the rule, dubbed “waters of the United States,” is illegal.
“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s new guidelines for determining whether water is subject to federal control – based mostly on the water’s distance and connection to larger water bodies – is “at odds” with a key Supreme Court ruling.
The court called into question both the rule itself and the process by which the EPA promulgated it. The opinion notes that the EPA apparently ignored Rapanos in its zeal to seize more federal authority:
Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.
Furthermore, the court expresses concern over what appeared to be a bait-and-switch in the comments process, and that the EPA simply cannot substantiate the rule with any solid science – a point made by the North Dakota court in August, too:
Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).
Remember, though, that this is a temporary injunction. The issues raised by the judges in this 2-1 decision are not fully established in an evidentiary process. Even the initial ruling in August was a pretrial injunction, not a final decision on the merits. However, in both cases the courts decided that the states have a substantial likelihood of establishing these facts in the eventual trial, and that the enforcement of the rule would create at least some unnecessary harm. The Sixth Circuit’s decision doesn’t agree that it would be irreparable harm, but also doesn’t see the need to rush into enforcement of a flawed rule either:
There is no compelling showing that any of the petitioners will suffer immediate irreparable harm – in the form of interference with state sovereignty, or in unrecoverable expenditure of resources as they endeavor to comply with the new regime – if a stay is not issued pending determination of this court’s jurisdiction. But neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.
What is of greater concern to us, in balancing the harms, is the burden – potentially visited nationwide on governmental bodies, state and federal, as well as private parties – and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters…
A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.
Still, the plaintiffs are clearly delighted with the injunction:
The National Federation of Independent Business, one of the groups that sued to stop the rule, cheered Friday’s decision.
“Small businesses everywhere this morning are breathing a sigh of relief,” Karen Harned, executive director of the group’s legal foundation, said in a statement.
“The court very properly acknowledged that the WOTUS rule has created a ‘whirlwind of confusion’ and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster.”
The Hill calls this “a stinging defeat,” but it may be more of a “stinging delay” at this point. At the very least, the EPA’s power grab has been put on hold, and that’s a welcome breather at this stage of the Obama administration.