Tag: scotus

So…That Column Didn’t Age Well! (posted 7/3/26)

I had meant to write a column about Independence Day today, but I’m going to put that off until Monday, partly because I’d like to comment on what happens during the big 250th, and partly because of the SCOTUS rulings that came down this week.  I think those are worth some more reflection.

On Sunday night I wrote about how SCOTUS has been doing a pretty good job lately, and how originalist judges have been so much better at sticking to interpreting the law rather than legislating, and how their judgments usually have the mark of common sense in them.

Annnnnddddd… SCOTUS just made one very bad ruling and a couple of other shaky ones that might make it appear as if I’m a dope who doesn’t know his Schumer from a hole in the ground.

In my defense, I did say that I expected that we’d get a bad ruling on the birthright citizenship issue, and I hate having gotten that one right.  The ruling that states didn’t have to count only ballots cast or received by election day was wrong-headed, but not a huge deal, IMHO.  It said that a ballot that was postmarked on or before election day and received within 5 days after election day could be counted.

That’s dumb, because giving an extra week for the ballots to come in does open the possibility for cheating, unless the state scrupulously and competently examines all ballots for authenticity and postmark.  (Good luck, if you live in a blue state.)  Besides, there’s an easy way to both allow mail-in ballots and day-of election ballots on equal terms: require that if you want to mail your ballot, you have to do so 5 days before election day.  

If you bumble around and miss that deadline, or can’t decide who to vote for until election day, just vote on that day, the way everyone in the country did for more than two centuries, until a few years ago!        

At least SCOTUS got the “no dudes in women’s sports” case right.  But even that one was a little weak, since they just granted states the right to protect female athletes in that way, rather than requiring that all states do so.

The birth right citizenship case was the big one, and it really hurt.  I’ve got 5 thoughts on that, in no particular order:  

First, we could have afforded to lose one of the supposedly originalist/conservative justices, but both Roberts and Coney-Barrett did the wrong thing.  (The definition of “doing the wrong” thing in legal circles is “joining Ketanji, Sotomayor and Kagan on any opinion!”)  Roberts has been disappointing for a long time, but Amy Coney-Barrett was supposed to be different and better, and she’s been mediocre at best, and has dropped the ball on some really big cases.  (I hope this doesn’t mean she’s drifting to the left – a la Souter, Anthony Kennedy, Sandra Day O’Conner, and many others.)

Second, it’s very frustrating that only GOP-nominated justices do this.  The lefties on the court are picked by leftist presidents to predictably rule in partisan leftist ways, and they always do.  Or at least almost always.  The rare exceptions are when a case is 9-0 or 8-1, so they’ll vote with the conservatives.  But that’s only when the case is so obvious that nobody can make an even quasi-reasonable case otherwise, and/or when the outcome is so certain that their vote could not possibly make a difference. 

But I can’t think of an important case that was closely decided – 6-3, or especially 5-4 – when a leftist judge found with conservatives, in a way that set back the leftist political agenda.  Maybe some of you out there can point to one?

Third, that point actually puts the lie to the partisan leftists who are always ranting about a corrupt, right-wing court, even though that court finds against conservative causes or positions on a fairly regular basis.  (As it did here, on a huge issue that Trump and conservatives badly wanted.)  Again, the mark of a truly partisan, politically compromised court would be one that always went for the outcome that confirmed and advanced their political priors.  And that is obviously true of many members of SCOTUS in recent decades…ALL of them on the left.

Fourth, Roberts and Barrett’s reasoning was tortured.  They had to acknowledge the importance of the key legal phrase from the 14th amendment – that citizenship automatically goes to those who are born in the US and “are subjection to the jurisdiction thereof” – but they argued that the meaning of that phrase is defined by the British idea (in Latin, “jus soli,” or “right of the soil”) of people being subjects of the king, which they claim that we borrowed and retained from them.  

(By the way, it’s awfully ironic that the same leftist crowd hollering about wanting “No kings!” are today happily adopting the most anti-democratic, pro-kings interpretation of all time… because in this context, it greatly increases their own political power.) 

Fifth, Thomas and Alito were deft and masterfully scathing in dissent, pointing out all the factually wrong assertions and mistaken interpretations that Roberts and Barrett made.  Thomas is usually the most concise of the justices, with his opinions averaging only a few pages; this time he wrote 91 pages, debunking in detail the errors of the majority.

He and Alito pointed out that the 14th amendment was narrowly tailored to apply to the children of former slaves, and that it did not apply to those with loyalties to other nations, the two best examples being American Indians, and the offspring of foreign diplomats.  (The Indians were later granted birthright citizenship through the Indian Citizenship Act in 1924; diplomats’ kids have never had it, and still don’t.)

The British themselves got rid of the principle of jus soli in 1981, and no other nation on earth grants unconditional birthright citizenship to the children of illegal parents.  Except, tragically, and until we can find some way to overturn this erroneous ruling, the United States.

So again we come back to common sense, in addition to all the legal language and precedents and prior interpretations.  Does it make ANY sense to say that the children of upstanding, legal residents working and residing legally in America (i.e. diplomats) are NOT given citizenship, while the children born to foreigners who broke our laws to get here and are here illegally (and thus subject to deportation themselves) ARE given citizenship?!  It’s a ridiculous outcome, in a way that I think is parallel to the other huge political problem of our day: voting fraud.

In both cases, the left is making facially absurd arguments to cover up the most transparently self-serving and illicit power grab imaginable.  They push for a basket of shady voting rules – ubiquitous mail-in balloting, ballot harvesting, same day registration, no ID or proof of citizenship to vote, and ballot counting that can take weeks – and coincidentally, every single one of those makes fraudulent voting much, much easier.  Just like allowing birth-tourism and anchor babies creates a huge influx of otherwise illegal voters that will eventually rob indigenous American citizens of the political power they are entitled to. 

Ugh.  With justices like the GOP-appointed Roberts and Barrett, why would the Left need to try to pack the court?

But we’re cautious optimists around here, and the Simpson family motto is “nil desperandum” (never despair).  So what’s the bright side, and what can we do now?

To begin with, we need to remember that common sense is still the hallmark of our philosophy, and kryptonite to the left.  And the fact that Roberts and Barrett departed from common sense to vote with the three partisan leftist justices is an indictment of them, not of our ideas.  

And that’s an easy case to make to the everyday (non-lawyer) American people.  Consider these simple questions that have come out of recent high-profile SCOTUS decisions:

Are people “in” the country when they’ve arrived at – but are still on the Mexican side of — the southern border?

Does “election day” mean “election week or election month?”  Or, you know, “election day?”

Is “Temporary Protected Status” a temporary status, or a permanent status?

Are males different than females, and should they be able to play on female teams against females? 

Should a foreigner come here illegally, give birth, and have that child automatically become an American citizen?

The answers are obvious, and we are on the right side of every one of them.

We should let these election day and birthright citizenship decisions light a fire under us in exactly the same way the Dobbs decision to reverse Roe v Wade lit a fire under the pro-abortion Left.  (Except that we’ll be motivated to correct some terrible mistakes, while the Dems were motivated to…continue aborting babies.) 

The ridiculously obvious cheating in California’s recent primaries illustrated how important clean elections are, and allowing a flood of illegals and counting votes for weeks threaten our confidence in the system.  We should use that issue to hammer the Dems in light blue, purple and red states (the deep blue states are beyond saving on this issue, at least for now), and to push for the Save Act, even if we can’t get it before the mid-terms.  It’s an 80-20 issue, and it should help us in the 2028 cycle, and it might even help us eke out a win in the mid-terms if we’re even close to striking distance of the Dems.

And a closed border and deporting illegals are popular too (even if not as popular as they should be), and they’ll become even more so as more progress is made, and more terrible stories come out about new crimes perpetrated by illegals against citizens. 

In the last several days I’ve heard a new idea that I love: Trump should write an Executive Order —I’d love a law on this, but it would never get through this congress – banning the entrance of any pregnant female foreigner into the US or any US territories!  People who legitimately want to visit the United States are now going to be inconvenienced by needing to provide proof that any birthing-aged female who wants to enter is not currently pregnant.

Chinese birth-tourism schemes alone have created an estimated 1.5 million Chinese “American citizens,” none of whom has any connection to this nation at all.  Their moms came to the US or an American territory under false pretenses, gave birth and yoinked a set of citizen papers from cowed bureaucrats, then went straight back to China.  So now there is a voting bloc under the control of the CCP that could legally steal any election in which the margin of legitimate victory is less than 1.5 million votes! Not to mention the millions of children whose illegal parents are using them as pawns to get their own citizenship from the next feckless Dem president who gets into the White House.

This cannot go on.  

Publicize these infuriating examples, run nationwide ads, and push that EO.  Say that we’d prefer not to do this, but this SCOTUS ruling gives us no choice.  If birthright citizenship is going to be forced on us in ways that prevent American citizens from determining who will become their fellow citizens, our national sovereignty and security are threatened, so we must act!

This is one more 80-20 issue that we can run on, in the midterms, and in 2028. 

Let’s go! And happy Independence Day!

Que Mala/Crockett, 2028!

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On Lawfare, Rule of Law and SCOTUS, Part 2 (posted 5/8/25)

I appreciate the many thoughtful comments on the first part of my debate responses to my lefty friend.  Here’s the second (and final part), though I’ve got a few thoughts to post on Friday, asking what many of you asked yesterday: Have any lefty acquaintances of yours ever become conservatives, and if so, did debates with conservatives influence their decision?

“I hadn’t really thought about this until the last 6 or 7 years or so, but there is only one part of our entire federal government which has no explicit checks on it, and that is SCOTUS.   

The legislative checks the executive, by passing legislation and over-riding presidential vetoes.  The executive checks the legislative through the veto, and the president controls foreign policy and the executive branch (though dozens of partisan leftist judges have said that that’s over now, if they have their way). 

The judicial branch checks the legislative and executive branches, and appellate courts check district courts, and SCOTUS can check appellate courts.  But as it stands, there is no means by which anybody – not the legislative, the executive, or lower courts – can check SCOTUS.  It is the highest court, and by definition it dictates what “the rule of law” means, based solely on how it interprets the constitution.  

That was not always the case.  In fact, SCOTUS first introduced that idea (by inference from the constitution) giving themselves that power in 1803 (in Marbury v Madison), and since the executive and legislative didn’t object or stop them, that never-voted-on arrangement hardened into the law of the land.  

Theoretically, the legislative can check SCOTUS by passing constitutional amendments.  But since post-Marbury, SCOTUS is the final authority on the constitution, in reality, it could just declare that a recent, legitimately passed amendment is actually unconstitutional, thus nullifying it.  (That’s basically what SCOTUS does every time it overturns a precedent.)

But in the real world, we know that that’s not completely true.  Because if it were, any 5 SCOTUS judges would be de facto dictators over us all.  I’ll give you two quick examples to illustrate the concept through absurd analogies.  Say you’ve got a SCOTUS with 5 far-right justices, and they say that by proposing a unitary executive, the constitution meant that the president has all the powers of a dictator.  So Trump IS a dictator from this day forward, and can declare himself president for life, abolish the right of leftists to vote, etc.

(I know: that’s actually very close to what some on the far-left believe right now, in their TDS fever dreams!)

Or consider the opposite: a SCOTUS with 5 far-left judges declares that hidden in the “emanations and penumbras” of the constitution is the never-heretofore-detected entitlement of all Americans to a utopian socialist scheme of free food, shelter, health care and education from the cradle to the grave.   (That’s actually pretty much how we got abortion as a “constitutional right.”  The Warren court “discovered” a right to privacy in 1965 in Griswold, and then eight years later, the Burger court piggy-backed – citing only “emanations and penumbra” – on that ruling to “discover” a right to abortion in Roe that no Founder or American citizen had ever found in two centuries of reading the constitution.) 

And since those entitlements would require a quasi- or fully totalitarian government to declare farmers, construction workers, doctors etc. to be indentured servants, and coerce them into growing the crops, building the housing and giving the medical care that those new “entitlements” demand – which is what happened in every socialist/communist state to a greater or lesser degree – SCOTUS could declare that we are henceforth a communist country, and personal freedom has been abolished.

What those absurd examples tell us is that the only real check on SCOTUS’s power is the large-scale consent of the voters.  Because while SCOTUS has no theoretical checks on its power, it also has no enforcement mechanisms for its rulings.  The executive and legislative have police, courts and military power to enforce their laws on people, and they do so regularly.  SCOTUS has nothing, unless the executive and legislative voluntarily subject themselves to its rulings, and then force them on the people.

This has happened multiple times, the most famous being when Lincoln suspended habeas corpus for four years during the Civil War.  The Taney court said he couldn’t legally do that, and told him to stop it. And he said, “I’m a Republican president, and I’m going to defeat the Democrats and free their slaves, and I’m not going to let your rulings stop me, so suck it, Trebek.”  Or words to that effect.

The concept underlying this idea was probably best stated by Andrew Jackson, when he forced the movement of Indians on the Trail of Tears, despite the Marshall SCOTUS ruling that that action was unconstitutional.  Jackson allegedly (and it appears, likely apocryphally) said, “John Marshall has made his decision, now let him enforce it.”  Whether Jackson actually said that or not, those words did capture his attitude – and what actually happened – when nobody enforced the SCOTUS ruling, and the Indians got screwed. 

Many commentators on both sides regularly accuse presidents on the other side of blatantly defying the court.  Many conservatives and independents said that Obama’s DACA and DAPA actions, for example – unilaterally changing immigration law without legitimate legislation from congress – were blatantly unconstitutional.  And Obama agreed, admitting dozens of times in public that he couldn’t legally do that without action from congress…right up until he did it!  (I don’t like that guy!)  SCOTUS eventually allowed a 5th circuit ruling saying DACA and DAPA were both unconstitutional to stand – which again, Obama and everybody else knew had always been the case.

But Obama – and Biden after him, on all the examples I gave you in my last email – both defiantly said, “The constitution says X, but let somebody enforce it.”  In all those cases, SCOTUS eventually did slap them down, and they only then stopped defying the law.  But by then, they’d gotten what they’d wanted, and nobody was able to reverse their illegally gotten gains: Biden won the midterms (in part) by illegally pushing student debt transfer to the taxpayers, and he forced millions to take an experimental vaccine against their will, and he forced landlords to take losses and give free rent to tenants for 8 months before he belatedly stopped.  And over a decade since Obama knowingly defied the constitution to keep illegals here through DACA and DAPA, many millions of them are STILL here.

And like psycho kids who kill their parents and then ask for mercy from the court because they are now orphans (!), the Democrats are now insisting that the DACA and DAPA illegals must be allowed to stay, since they’ve been here so long, and have now established roots in America.  (That takes some balls!) 

Which brings us to today, and the hundred-plus legal actions against Trump, and the troubling possible outcomes of them.  The lefties are saying that every action that Trump takes is creating a “constitutional crisis.”  Conservatives and some independents are saying that the lawfare being waged against every presidential action is essentially giving 677 local judges the power to totally paralyze the executive branch – a result that has never happened before, and was never contemplated in the constitution – and is what’s causing a “constitutional crisis.”

I think there’s a chance that these will become self-fulfilling prophecies.  I’m hoping that SCOTUS rules correctly, and allows Trump to do what all presidents before him have done: control budget and personnel in the executive branch; enforce immigration and civil rights laws as written, etc. 

But if SCOTUS doesn’t do that, I think Trump – or most presidents, really – could possibly follow the examples of Lincoln and Andrew Jackson, and say, “Roberts has made his ruling, now let him enforce it.”  And then that would REALLY be a constitutional crisis. 

The reason I think that could happen is the crucial difference between now and the earlier examples: Trump would have the consent of the majority of the governed.   It’s true that Biden and Obama both eventually did submit to the SCOTUS rulings.  But they only violated the law in the first place because they knew that they couldn’t have gotten what they wanted legitimately, because the majority of the public was against what they wanted to do.  And they only belatedly submitted in the end because they’d gotten what they wanted, and because public outrage would have produced the crisis that their continuing lawlessness would have justly brought down on them.

Trump, on the other hand – and I know you hate his guts, and think he’s wrong about everything – is doing everything he ran on, and that the majority of the voters want.  (In fact, even though he’s always been a divisive figure personally – because of his tendency toward assholery! – achieving personal approval ratings of 50/50ish at best, his major campaign promises all received majority polling approval.) 

During the campaign, he clearly laid out the agenda that the dozens of leftist mini-president judges are now thwarting.  He said he would close the border and build a wall; deport the illegals, fight DEI, etc.

I’m not saying that popular approval means everything, and that the majority should get everything it wants.  (At one time, majorities in the south wanted slavery, majorities approved of mistreating Indians, and of FDR penning up Japanese Americans, etc.)

But I think the far left of the Democrat party – and their partisan judges – are effectively arguing that majority will means NOTHING, if it goes against their own political preferences.  The people may have voted to enforce the border, protect women, cut bureaucracy, and all the rest, but they can pound sand, because a few dozen local judges know better. 

And that’s NOT the way our system is supposed to work, or has ever worked!

It’s not about Trump, man!  It’s about us, and what we voted for.  (And by we, I don’t mean just conservatives, but also the independents who won him the election, and the higher number of blacks, Hispanics, married women, and young people than any Republican president has won in over 40 years!)  Those of us who loathed Biden – and those who gave him a chance, but quickly soured on his nasty, incompetent governing and obvious mental deficiencies – weren’t happy, but we didn’t riot for months like antifa and BLM, and we didn’t try to assassinate him.  Most of us thought the election had been rigged, but we couldn’t prove that it had been stolen, so that’s the way it goes.  He won a narrow victory, so he got to set the agenda, and we had to live to fight another day. 

Well, now it’s another day, and we played by the rules, and we won.  Convincingly, if narrowly in the popular vote.  But now we’re told that we can’t get what he ran on, because it makes the other side mad?   To quote Dr. Evil, “How about NO!” 

I think that defying the will of the majority of the people in that way is dangerous, and I think that what Schumer illegally threatened to do to judges who defied his will could eventually happen to the far left: they’re sowing the wind, and they might end up reaping the whirlwind. 

I REALLY don’t want that to happen, and because I’m fundamentally an optimist, I don’t think that it will.  But the Boasberg-types on the district courts are playing with fire.

To wrap up (finally! 😊), I think a healthy fear of the kinds of tensions I’ve just summarized is part of what underlies the conservative/originalist view of the constitution and SCOTUS: judges should be humble, and do their best to rule based on what the constitution says, regardless of their own political preferences.   (Thus conservative judges often vote against their own politics, as when Scalia upheld flag burning, even though he repeatedly said that he’d love to see it outlawed, etc.) 

The progressive judicial view, on the other hand, is “the living constitution” theory, which holds that since society is always evolving, SCOTUS should be willing to change our laws to reflect that evolution.  (Sarcastic jerks like me call this the “just make shit up” approach. 😊) And they don’t mean to do that through constitutional amendments, the way the mostly conservative, genius Founders set things up – which is very difficult to do, b/c it involves that pesky “respecting democracy” stuff — but through fiat, by the diktat of 5 legislators in robes.

Two quick examples of that: Before Roe, the entire nation was working through the issue of abortion on a traditional, consent-of-the-governed, federalist basis: conservative states were passing laws to make abortions harder to get, and liberal ones were making them easier.  But then SCOTUS stepped in and short-circuited the democratic process, and dictated a poorly reasoned and controversial new “law of the land,” forcing it down on all 50 states.

The Obergefell decision in 2015 did the same thing with gay marriage.  Laws on that issue were being proposed, debated and voted on in many states. (And, infuriatingly to progressives, usually being voted down, even in deep-blue CA.)  Then SCOTUS stepped in, “discovered” that the Founders and the constitution had always wanted gay marriage everywhere, and forced that decision on all 50 states. 

Interestingly, I think the intervening years have proven that even though both of those decisions were arrived at in an unconstitutional and wrong way, one of them has the democratic approval of the voters, and the other does not.  Obergefell is the former: society was evolving toward more tolerance of gay marriage, and many if not most states would likely have approved it by now anyway.

(In fact, even in 2015, a reasonable, democratic compromise was being worked out.  “Civil union” laws were being passed that stopped discrimination against gays in relationships – not recognizing their marital rights in divorce or inheritance, or their right to ‘next of kin/spousal privileges’ in health care situations, etc. – without coercing the majority into calling that “marriage,” when marriage had never meant that before.  That seems like a reasonable, compassionate way to work out some differences without screwing with people you disagree with.  And it was interrupted by an arrogant court who acted like a legislature – a fundamental breach of our Founding and constitutional law – and created a new law.)

How do I know that Obergefell has democratic approval, despite the legally illegitimate way it was forced on us?  Because even though it’s only 10 years old, and many millions of Americans still don’t accept the validity of calling gay unions “marriage,” there have been no serious challenges or widespread social unrest over it.  The country has accepted it and moved on.

The Roe court did the same thing – legislating from the bench in a way that invalidated the many state legislative debates about abortion that were going on, and dictating to the entire nation by making up a new, foundational law that had never existed before.  But the reaction was the opposite of that to Obergefell: that law was fought over and challenged constantly for 50 years, with no signs of passions diminishing.  Every January, millions of Americans protested in frigid temps in DC in the March for Life, which mourned the anniversary of the Roe decision.  And finally, after half a century, a quasi-originalist/conservative court undid the Roe mistake (IMHO), in Dobbs.

I know that most progressives are still outraged because they think that Dobbs “banned abortion.”  But of course it did nothing of the sort!  It just sent abortion back to the states, where it belonged.  And the enthusiasm for abortion rights in most blue states has given Dems a lot of electoral victories over the GOP in the last 3 years, and by some counts, there are more abortions happening now that there were before Dobbs.  (Which I find depressing, as democratic outcomes often are.)

The result of Dobbs can best be summarized in a political cartoon I saw in its aftermath: an  angry pro-choice crowd is confronting the SCOTUS justices.  Their screams are in a speech bubble: “5 judges should not be allowed to dictate abortion law!”  And a thought bubble over the 5 quasi-originalist judges says, “That’s exactly what we just said!” 

So I think Dobbs resulted in a just outcome: conservative states in which voters believe that abortion after viability – or 15 weeks, or 6 weeks, or whatever the voters decide – is infanticide-adjacent have banned later term abortions, with the big 3 exceptions.  Progressive states, in which voters believe that a baby is part of the mother’s body rather than a separate entity, or at least that a mother’s choice supersedes those of a fetus/zygote/tissue mass/baby (?), have passed laws that allow abortion – in 9 states plus DC, right up until the moment of birth!  (I almost can’t believe that that is true, but in AK, OR, CO, NM, MN, MI, MD, NJ and VT, if a doctor can get a scalpel into a baby’s skull before it crowns out of the birth canal, that killing is totally legal!)

As a conservative, and a sinful, flawed follower of Uncle Jesus, I appreciate our federalist system, which allows me to not violate my conscience on this issue.  I am free to (and will) never live in a blue state that would force me to tolerate (and pay for) abortions after viability, which I believe is murder. 

Similarly, progressives are free to never live in a red state governed by laws passed by troglodyte, evil, patriarchal fascists like me (in their view 😊) who would prevent them from aborting their babies at will.

In this fallen world, I think that is the best possible outcome we’re likely to ever get.  Especially when the alternative is to allow arrogant judges to force everyone to violate their consciences based on those judges’ whims, and/or whoever controls the White House and congress on any given day.” 

On Lawfare, Rule of Law, and SCOTUS, Part 1 (posted 5/7/25)

If you missed my column on Monday, I mentioned that I’d be posting parts of a debate I’ve been having with a good old friend of mine who is a committed lefty.  I value his friendship – and that of a handful of other long-time leftist friends – in part because knowing him reminds me that everybody on the other side isn’t like the morally bankrupt dullards who make up the elite left, and run the national Democrat party!

There are good Democrats out there, and we shouldn’t be enemies, or let our differences end friendships.  (Unless they make that choice by demanding our agreement with, or submission to, their ideas.)  Their arguments can clarify issues, sharpen our thinking, and sometimes change our minds. 

And while life is too short to get upset over politics, a spirited debate with a good-faith interlocutor who is open to reasonable argument is one of the pleasures of a well-rounded life.  So I thought I’d post some excerpts in the hopes that at least some in CO nation will find this discussion interesting.

I’ve done some editing to remove some personal information and summarize some context, and my friend’s framing of the issues.  (So this won’t really be a debate, as much as my half of it, responding to the topics he raises.)    

This discussion started with him advancing the idea that Trump has repeatedly acted lawlessly, citing the many court cases against him in 2023-24, his conviction on so many counts in the Stormy Daniels case, and especially his defiance of SCOTUS and resistance to giving due process to many deportees, and especially Kilmar Garcia.  And he ended his email to me with a rhetorical challenge as to whether I think everyone should follow “the rule of law.”

I discussed the many flaws in the lawfare cases against Trump, but I agreed with him that Trump would have been better served just bringing Kilmar back – but only to a detention center, where he would get a quickie hearing confirming the original two judges’ decision that he was here illegally, and associated with MS-13.  Then he could be immediately re-deported, but just not to the CECOT prison.

What follows are my thoughts on the “rule of law” as national Democrats are using it, and then on the way Biden and Obama adhered (or didn’t) to the rule of law:   

“Moving on to something that I think we might only mostly agree on, but you can tell me: yes, we should abide by the rule of law.  But as a blanket statement, that hides several types of complications that I’m sure neither one of us would agree to.  To take the most glaring type of examples: If you and I were alive in 1858, the law of the land included the Fugitive Slave Act (1850) and the Dred Scott decision (1857), which meant that blacks could never be citizens, and if an escaped slave made it to your farmhouse, you’d be required to hold him at gunpoint and give him back to his master.  A century later, we’d both have to accept segregated schools, because “separate but equal” was the law of the land until Brown v Board of Education changed it.  And Lincoln famously suspended one of the central legal concepts in our system, habeas corpus (for years, and in contravention of multiple specific rulings from the Taney SCOTUS that he had no authority to do so), when the alternative was to make it harder to fight the South.

So neither of us would accept “submit to the rule of law” as a universal statement.  I’m obviously not comparing any action of Trump or any of our courts now to Dred or Brown.  I’m just pointing out that the rhetorical question, “do you believe in rule of law or not?” creates a false binary that you would not accept 100% any more than I would.

But let me get to a relevant, real-world application of the rule of law idea.  Over 100 legal cases have been filed, and district court judges’ TRO’s have been put on practically every action Trump has taken (from hiring and firing in the executive branch, to enforcing our immigration laws, to stopping Harvard from allowing bullies to violate our civil rights laws in their attacks on Jews, to stopping biological males from going into women’s sports, showers and bathrooms) which is unprecedented.

By comparison, I think I remember that the first TRO ever filed by a district court judge in US history was in the mid-1960s, and the total injunctions against all presidents before this year is around 100.  (As I understand it, before then, nobody ever thought that a local judge – one of 677 nationwide – had the authority to dictate legal and political action in the entire country.  I’m not sure how or why that understanding, which seems like commonsense to me, has morphed into our current situation, in which we now have 677 unelected, de facto shadow presidents who can dictate nationwide policy and paralyze the executive branch, potentially for months or years on end.)  In other words, more have been filed in Trump’s first 90 days than were filed in all of prior US history.

The right-wing commentariat sees that as proof that the left is engaging in a defiant, lawless wave of “lawfare” and an assault on democracy, since it is meant to deny a legitimately elected president whom they hate the ability to carry out the constitutionally prescribed duties of the chief executive.

The left-wing commentariat sees that as proof of Trump’s lawlessness.  “Look at all of that smoke – there has to be a fire there!  These judges are only taking their constitutionally sanctioned jobs seriously, and checking an executive whom they believe is ignoring the rule of law.”  In fact, most of the legacy media lefties are treating the amount of judges ruling (temporarily) against Trump as prima facie evidence that he’s in the wrong.

I think that’s a fair summary of the two sides’ positions, and there are two ways to decide who is closer to right.  The one that we should all do as citizens is to look at the cases and the arguments, and use our God-given reason to evaluate the evidence to come to a conclusion.  (I expect that you and I will do a lot of this in the coming weeks or months, and I look forward to it!)

But the one way that matters most in the real world is obviously what happens when all of these cases are settled, either at the appellate level or the SCOTUS level. If the lawyers you cited a couple months ago are right, and Trump loses the vast majority of these cases on appeal or at SCOTUS, and he then defies those rulings, you’ll be able to say that he’s violating the rule of law, possibly even as much as Biden did.  (More on that below.) 

If, on the other hand, I’m right, and Trump wins the majority of these cases – either because an appellate court found for him and SCOTUS didn’t take it up on appeal, or because lower courts found against him and SCOTUS reversed them – will you then agree that “the rule of law” dictates that you and all of the progressives in the nation cannot legally prevent Trump from carrying out Obama-style deportations, streamlining executive agencies, protecting women from biological males in sports and bathrooms, forcing the Ivy League to either comply with federal civil rights laws or lose federal funds, etc.? 

I’m going to guess that’s a hard NO! 😊 If so, will you then be a proud conscientious objector to “the rule of law?”  And if that’s the case, are you sure that you’re as devoted to the rule of law as you’ve thought you were?  I’m not trying to irritate you, but I think that’s worth contemplating.

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Finally, I share some of your concerns about the role of SCOTUS, but I’d like to save that for my next email.  Instead, I’d like to end with 4 examples (not counting Biden’s systematic breaking of our immigration laws) of issues on which Biden and the Dems have openly violated and flouted SCOTUS rulings, and see how many of them you agree with me on.  I’m not bringing them up to make a tu quoque argument, but to explore your ideas about rule of law.

The four issues are: illegal student loan “forgiveness,” forced covid vaccine use, illegal eviction moratoria, and sanctuary city/state violations of the supremacy clause.  I’ve summarized them, but if you already know them well, you can just skim to the bottom.

1. The student loan “forgiveness” program.  This was obviously popular with a couple of groups who are (unexpectedly!) a big part of the Democrat support base: students who had school loans, and universities who would profit greatly from more students attending in the belief they would be able to stick the taxpayers with the bill.

If Biden wanted to do this legitimately, he could have tried to get a bill passed through congress and then sign it.  But he knew that he couldn’t do that, because the majority of Americans hated the idea. (That pesky democracy again!) So he acted unilaterally, and simply declared that many billions of dollars of school debt was no longer the responsibility of those who had borrowed it and benefited from it, but of the taxpayers.  He first attempted to do it in August of 2022, and even NPR admitted that “its warm reception by younger voters may have contributed to Democrats’ better than expected showing in the midterms.”

Of course Biden didn’t care that this cynical, illegal vote-buying scheme was clearly unconstitutional – it helped him stop a GOP “red wave.”  And by the time SCOTUS shot it down (duh!) in June of 2023, he’d unethically gotten the result he wanted.  But Biden still didn’t abide by the rule of law; instead, he pushed the work-around SAVE act, which tried to do the same thing, except by instituting an income-based repayment plan, with a shortened time until the remaining balance would be forgiven.  (The result was the same: billions of debt transferred from those who owed it to those who didn’t!)  

By August of 2024, that plan too had been stopped by appellate courts, and SCOTUS finally killed it on the same grounds as before: a president isn’t a king who can unilaterally stick a bunch of poor and working-class people with the debts voluntarily taken out by generally richer college graduates. 

And rather than accepting that the courts had gone against him, Biden demonized the GOP and the courts, accusing them of “literally snatching from the hands of millions of Americans thousands of dollars of student debt relief that was about to change their lives.  These Republican officials just couldn’t bear the thought of providing relief for working class and middle class Americans.”

Ugh!  You can’t get more dishonest than telling people that the GOP wouldn’t let him “forgive their student debt,” when he knew damn well that he couldn’t legally do that.   If that wasn’t bad enough, he then bragged about defying the rule of law: “The Supreme Court blocked us.  But that didn’t stop us.  We continued to find ways to reduce student payments.”

2.  Biden and the Dems did the same thing with the covid vaccine mandates.  In 2022 – over a year after we knew for certain that the vax did not prevent you from getting it or spreading it, and after a lot of evidence of the danger of sometimes deadly and often lifetime-injury-causing heart damage (myocarditis and pericarditis) in young people, especially males – Biden rammed through a requirement forcing federal employees to take the experimental shot or lose their jobs.  (No more spouting off about “my body, my choice!”)  He also tried to force large private employers to coerce their employees to take the shot.  Even as he was doing that, he admitted that SCOTUS might say that it was unconstitutional…but he did it anyway.  Eventually SCOTUS slapped down those policies, but not until millions of healthy people had been strong-armed into submitting.

3. When he first came into office, Biden pushed a moratorium on tenants having to pay rent for a few months, and then he extended it for 3 more months.  At least he tried to use congress to pay for this, though he only secured $25 billion in aid, which was already $80 billion short of what was needed to cover the rent that tenants had stopped paying by late spring.  A responsible pol would have either gone back for more cash, or else told the public the free rent had to stop.  Instead, Biden extended his federal eviction moratorium that Congress had NOT authorized (and which was clearly unconstitutional on its face) and that he knew wouldn’t be paid for, forcing landlords to allow their tenants to squat in their properties for the foreseeable future.

As you can imagine, that was personal for me, since it threatened to bankrupt me.  I know some lefties loved the idea of poorer tenants getting to stick it to “rich” landlords, except that many small landlords like me rely on rents being paid to survive.  (Not to mention the fact that stealing is wrong, even if you empathize with the thief and hate his victim!)  And of course the Dems didn’t force the REALLY rich –  huge corporations like Deutsche Bank, Chase, Bank of America, etc. – to take it in the shorts.  Only guys like me.

So my tenants could tell me to suck it, and sit in my houses without paying.  But I didn’t get a “mortgage moratorium” – if I had stopped paying my mortgages to Chase for six months, they’d have taken my houses from me. 

SCOTUS finally ruled the obvious way in June of 2021, ordering the Dems to stop boning landlords.  So what did the “Rule of Law” party do?  (Can you tell this example gets me especially pissed? 😊)  They told SCOTUS to stick it, and kept screwing landlords for three more months, forcing them to apply for emergency relief, which SCOTUS finally gave them in a pointed opinion at the end of August, after 8 months of Biden-caused losses.  

(I didn’t have any losses, because I live in a state with a great governor who declared that squatting wasn’t going to work in Florida.  And because I’ve got good tenants.  And because any tenants who tried to stiff me would have seen the murder in my eyes, as well as the likelihood that I’d burn my own property down before I’d let some deadbeat squat in it.  Because: Appalachia!)

4. The sanctuary city/state policies that many progressive local governments have are also clearly illegal as well.  But when some GOP governors and pols (and now Trump) started talking about withholding federal funds to get compliance, the progressives said that the GOP was the law violator.  Because sanctuary cities should be able to break federal laws at will, while still being entitled to full funding from the government whose laws they are breaking, I guess?

This despite a lot of precedent from the 1970s and 80s, in which multiple SCOTUS rulings said that the federal government could withhold federal highway funds (for one example) to coerce states into following federal wishes (not even laws, but just things the feds wanted!), e.g. changing speed limits or drinking ages to ones the feds approved of. 

In all of the above cases, when SCOTUS – not a partisan lower court judge, but the highest court – ruled against lefty wishes, Biden and Dems showed no respect for the rule of law.  He defied one ruling after another, demonized SCOTUS on student loan “forgiveness,” said that the vax ruling was “a mistake,” and also smeared the obviously correct affirmative action/racial discrimination ruling against Harvard as evidence that “this is not a normal court.” 

And I don’t remember Chris Van Hollen or any other national Democrat excoriating Biden for flouting the rule of law! (In fact, Chuck Schumer directly threatened SCOTUS judges whose rulings he didn’t like: “You’ll never know what hit you, Gorsuch and Kavanaugh, you’ll reap the whirlwind…”)”

Okay, this hasn’t been my usual snark-fest of a column, but I’m curious to hear CO nation’s thoughts. 

For those who are willing to persevere, I’ll post more tomorrow, this time on the likelihood of an actual “constitutional crisis” if this lawfare persists…

Hamas delenda est!