Tag: supreme-court

Checks and Balances, Part 3 (posted 12/8/25)

This is the last of three columns on checks and balances in our government.  And I want everybody to know how difficult it was to stick to this topic today, because I have got such a long line of knucklehead leftists and their recent idiotic shenanigans that I am just dying to mock.  So it’s taking every bit of mature and manly restraint for me to stay on subject.

And regular readers will know that “mature” and “restraint” are not exactly in my natural wheelhouse.  So let me get started before my baser nature kicks in.   (But next column…)

In my last column I discussed the two main ways in which I think the legislature has abdicated its job of checking the other branches. The congress’ fecklessness has empowered the other two branches, helping to create an “imperial presidency” and an “imperial judiciary.”  Because if congress weasels want to keep their offices by becoming gutless castrati, some other branch is going to have to (and usually want to) step into that power vacuum, and the executive and judiciary have done so. 

The Imperial Presidency

The Founders created a pretty strong president; they made him the head of both the civilian and military (as commander in chief) chain of command, and they placed no term limits on him.  (That only changed after FDR.)  He was given veto power over legislation, and a monarchical pardon power too.  But the Founders also created a way for the legislature to over-ride his vetoes, and to impeach him, if things came to that.   

As the government grew, and executive agencies were founded and grew, the presidency gained more power.  Over the years, some legislatures curtailed some of those powers; in addition to creating term limits, they imposed rules requiring him to go to Congress to get a declaration of war if he tried to use the military for too long after responding to an emergency situation.   (That last example suggests some dysfunction, because presidents have been undertaking many military actions while declaring few wars in recent decades.)

One oft-cited bit of evidence that presidents have become too powerful is the huge increase in the number of Executive Orders that have grown in recent years.  However, when I researched it, I was surprised to find that that’s not the case.  The undisputed champions of EO-issuing are FDR (both totally, and on a per-year basis) with 3728 (!), and Woodrow Wilson in a distant second with 1803.  By comparison, Obama’s 276 orders in 8 years, Biden’s 162 in 4 years, and Trump’s 220 in his first term seem modest. 

Of course the substance of the EOs should matter more than their frequency.  If FDR’s only EO  had been the one forcing Japanese-Americans into camps during WWII, it would have been one too many.  And no one would now object to Lincoln’s Emancipation Proclamation (which was an EO), nor to Truman’s desegregating the military or Ike’s desegregating public schools.

Of all three branches of government, I’m most sympathetic to the position that presidents find themselves in, and I see the frequent use of EOs as a necessary evil – with the emphasis more on “necessary” than on “evil.”  

As our congress has become more dysfunctional, a president usually finds himself slogging through mud to get anything done.  If the opposing party has even a slight majority in congress, he can be tied up in endless investigations, and cannot get any regular bill passed through congress at all.  If his party has a slim but not a super-majority, he still can’t break a filibuster to pass legislation, and can only do so through continuing resolutions, which are very limited.  

Thus the rash of EOs at the beginning of Trump’s second term, and the recent policy whiplashing at each change of administration.  Obama’s first EOs canceled Bush policies (closing Gitmo, stopping terrorist detention and interrogation policies, etc.); Trump’s first EOs countered Obama’s (trimming Obamacare damage, closing the border); Biden’s canceled Trump’s (killed the Keystone pipeline, opened the border, free fentanyl for all American kids, etc.).

One more factor that limits the president’s power: as the only one with term limits, the long-term seat-warmers in congress and the deep-state bureaucratic functionaries can just slow-walk and hamper everything he tries to do, and then just out-wait him.    

The Imperial Judiciary.

Just like the other two branches, the judiciary has stepped out of its lane too.  In one way, judges (especially on SCOTUS) are given more power than anyone else in gov’t, since they serve for life and are functionally impervious to any pressure or checks on their behavior.  (I know: technically, they can be impeached, but in reality, that almost never happens.) 

But in another way, judges are supposed to be more tightly checked than the other 2 branches, because they are supposed to keep their own political opinions ENTIRELY out of their rulings; their job is to interpret the laws, not to shape, slant or make them.  In the real world, no human can actually do that perfectly, but things have really fallen apart on this front, as more and more judges (local, appellate and SCOTUS) have IMHO been de facto legislating, by novel “interpretations” that coincidentally change the law to be more in line with their political priors.

Amy Coney-Barrett made this point recently, when she joined all 7 other judges in slapping down Ketanji Brown-Jackson’s “extreme” and nakedly partisan attacks on Trump, and on the other SCOTUS judges, including Kagan and Sotomayor, in an opinion that is “at odds with more than two centuries of precedent, not to mention the Constitution itself.”  In her response to Brown-Jackson’s rant (read it and see!), Barrett pointed out that “Justice Jackson decries an imperial executive while embracing an imperial judiciary.”

As a conservative, I see about 90% of the problems with an imperial judiciary coming from the left, and they all stem from the differing judicial philosophies.  Conservatives are supposed to be “originalists” or “strict constructionists,” who do their best to get back to the original meaning of the constitution, and rule based on that, even when – especially when! – the outcome goes against their own political preferences. 

Scalia provided a great example of that approach, when he declared that he hated flag burning and would outlaw it if he could…but that’s not what the constitution supported, so he ruled against his own desires. 

The lefty approach is the so-called “living document” view, in which the constitution’s meaning is continually in flux…and coincidentally enough, they always find that it is fluxing toward exactly their own political preferences.  This mindset results in what we conservatives call “activist judges” – robed partisans who continually give leftists their chosen policies through judicial rulings that they could never have achieved democratically and legislatively.

Two influential examples of this are Roe vs. Wade in 1973 and Obergefell in 2015.  For two hundred years, nobody had imagined that a right to abortion existed in the Constitution, but then 5 partisans in robes peered into the “emanations and penumbras” of that document and “discovered” that it had been there all along.  For nearly 250 years nobody had detected gay marriage in the constitution, but once again, 5 robed activists were shocked to find exactly what they hoped to find there. 

Unexpectedly!

To be fair, the division between judicial philosophies isn’t always so clear.  There are real challenges in ruling on issues that hadn’t existed in the 18th and 19th centuries, but affect our lives today.  And while conservative originalists place great weight on “stare decisis,” or following precedent, they necessarily overturn a precedent every time they reverse an earlier ruling that they find was unconstitutional.

Thus lefties screamed hypocrisy when the Roberts court overturned Roe, and again when they overturned Chevron. But of course those same lefties are huge hypocrites on the issue of stare decisis, citing it when it bolsters their political priors, and shredding it when it doesn’t.  (Dred Scott and Plessy vs. Ferguson were once precedents, and no one still argues that slavery and forced segregation should still exist.)   After all, Roe overturned 200 years of a precedent which every sentient judge – and person, for that matter – agreed on: the constitution is silent on abortion. 

And 38 seconds after Roe was issued, the left carved it on a stone tablet, proclaiming that it is and would always be inviolable precedent, until the end of time.   

The second Trump administration has brought the imperial judiciary issue into stark relief.  There are three levels of federal courts: district courts (with local jurisdiction), circuit courts (i.e. appeals courts) and SCOTUS.  There are 677 district court judges, and too many of them are hard partisan leftists, and they’ve been lodging TROs against virtually everything Trump has tried to do. 

Not all of the challenges are frivolous, and I expect that the administration will lose on some of them, including the way Trump’s done tariffs, and probably on stopping birth-right citizenship, too.  That last one is really a shame, because I’ve read enough on that topic to think that the Constitution didn’t require giving citizenship to those born to people who are in the country illegally.  But I don’t have enough confidence in the six supposedly originalist justices to stick to the law on that issue. 

Having said that, most of the TROs have been ridiculously, nakedly partisan.  Many local judges have said that Trump shouldn’t have control of executive agencies (whether in firing personnel, or shrinking or eliminating those agencies), shouldn’t be able to enforce our immigration laws, or to direct foreign policy.  Most of them have also declared that their local court judgement should automatically apply to the entire country.

Thankfully, Trump has been batting around .900 on reversing the TROs so far, because if he weren’t, our judicial system would be completely unworkable.  You obviously cannot have 677 local judges acting as de facto presidents, claiming for themselves the right to micromanage and reverse every action the president takes. 

Some of the lower courts’ more transparently egregious power grabs have been reversed by the circuit courts, but some haven’t, and if it weren’t for a mostly originalist SCOTUS, the tidal wave of lawfare and partisan rulings would have paralyzed the country.  

But that is a scary position to be in, both because this court isn’t consistent, and because the next time Dems gain control, they’ll change the makeup of the court, either legally (by replacing exiting justices) or corruptly (by packing the court). 

This SCOTUS was often a useful check on Obama and Biden, overruling Biden’s EO vax mandate and his attempt to force all Americans to pay the school loans of the students who took them out, among others.  Some quick research showed me that Obama’s win-loss rate at SCOTUS was the worst of any modern president – he won only 45% of the time, compared to Reagan’s 75%, HW Bush’s 70%, Clinton’s 63% and W Bush’s 60% — until Trump’s first term, when he won around 44%.  (I couldn’t find Biden’s final number yet, but it will likely be at or near the bottom.)   

At the same time, Roberts was able to twist himself in knots to find a way to preserve Obamacare, even though his own ruling suggested that it wasn’t constitutional, and this SCOTUS has not produced automatically originalist rulings.  Also the two best justices – Thomas (my hero!) and Alito – are the oldest, and we can’t afford to have either of them replaced by a Dem president.   

To top it all off, the army of terrible partisan local judges are in some sense winning, even as they keep being beaten in court.  Because every wave of lawfare rulings gums up the works and slows Trump down, limiting the amount he can get done.  

I know: this column has been pretty heavy on the “cautious” and light on the “optimistic.”       

I would like to hear your thoughts on this subject, because I’m not sure what we should do – other than making sure that JD, Rubio or DeSantis win the WH in the next couple of presidential cycles! – to rein in our imperial judiciary.     

Hamas (and Trantifa) delenda est!

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Reading the SCOTUS Case that Allows Trump to Act As President Again (posted 7/7/25)

I’ll be back with another column covering the ongoing foolishness in our politics tomorrow or Wednesday, but today I have to ask you to bear with me, because I’ve written an uncharacteristically serious column about the SCOTUS ruling in Trump v. Casa, Inc.  That’s the one dealing with the dozens of universal injunctions by district court judges who have been trying to stop Trump’s every move.  

The underlying case was about Trump’s EO ending birthright citizenship for the born-in-America children of illegals, which I’m afraid he might well lose, though he shouldn’t, IMHO.  But the ruling in Casa settled what should have been an obvious point: the US government can’t function with 677 de facto presidents, i.e. district court judges who can stop any executive decision for months or years at a time.

I’ve read the whole decision – written by Amy Coney-Barrett – including the concurrences by Thomas, Alito and Kavanaugh and the dissents by Sotomayor and Jackson, and I’d encourage anyone who is interested to read it, too.  As I discovered when I read the abortion and second amendment cases several summers ago, SCOTUS decisions are unexpectedly understandable, even for non-lawyers. 

I read this one over the Independence Day weekend, which seemed appropriate, given how grateful I am for our independence and for this ruling! 

I’ve found that I can just skip over the citations and look up only the legal terms that aren’t self-explanatory, and I was surprised at how much the justices’ writing reveals their intelligence, discipline and character.  The best writers and thinkers on our side are Thomas and Alito, IMHO.  On the other side, I think the general consensus is that Kagan is the smartest, Sotomayor is mediocre, and Jackson is embarrassingly bad.

After reading this case, I think Sotomayor did a little better than I expected, and Jackson was as bad as I expected.  And I thought Barrett wrote a much stronger originalist argument than I’d expected, and not just because she mercilessly took Jackson’s bizarre rambling apart.

Barrett starts the majority opinion – the initial summary of which is only around 2000 words –at the nation’s beginning, noting that “Universal injunctions are not sufficiently analogous to any relief available in the court of equity in England at the time of the founding.”  She then moves forward in time, claiming, “Nor did founding-era courts of equity in the United States chart a different course.  If anything, the approach traditionally taken by federal courts cuts against the existence of such a sweeping remedy.”

She addresses the counter-arguments, noting that “respondents claim that universal injunctions are the modern equivalent of the decree resulting from a ‘bill of peace,’” but then cites a bunch of precedents to show why that analogy does not hold.  She closes by summarizing the points on which the government must prevail, and demonstrating that they do so, while noting that this doesn’t mean that they will ultimately win on the underlying birthright citizenship question.  The key sentence in her conclusion, IMHO: “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”  

The full 6500-word opinion that follows traces the history of universal injunctions, pointing out that they “were not a feature of federal-court litigation until sometime in the 20th Century,” and that they have been exploding since W’s term, when over three-quarters of them have been issued.  (And we all know that the explosion of injunctions in the first four months of Trump II has drastically added to that statistical imbalance.) 

Her closing: “The universal injunction was conspicuously nonexistent for most of our nation’s history….  Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle.” 

Thomas uses a citation-heavy 1200 words to emphasize the need for judicial restraint that this ruling supports.  Then Alito’s concurrence anticipates the activist left’s next counter-moves to try to get around this clear ruling.  He warns about an expanded view of third-party standing (plaintiffs who aren’t affected by an issue arguing on behalf of others) and class-action filings.

On the former, he says, “Left unchecked, the practice of reflexive state third-party standing will undermine today’s decision as a practical matter.”  On the latter,“Today’s decision will have very little value if district courts award relief to broadly defined classes without following Rule 23’s procedural protections for class certification.”  (Rule 23 forces plaintiffs to meet specific requirements to achieve a class-action suit, which activists hate, as you might imagine.)

Alito warns that lower courts “should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23.”   “Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision.” 

Many on the left are already talking about trying both of these tactics, thus proving Alito’s point.  Hopefully his warning will rein in most lower courts from trying these end-around moves, though I imagine the most lawless of the activist judges will go for it anyway, being constrained by neither law nor ethics, as they obviously are.

Sotomayor actually lays out a pretty convincing argument that birthright citizenship is constitutional.  She relies mostly on the fact that it has been a long-standing precedent, which is ironic, since she and the other “living constitution” supporters only seem to value precedent when it leads to their favored political conclusions.  (They made a big deal about the 50-year precedent of Roe v. Wade being overturned, for example, but they had nothing to say about the nearly 200-year precedent of abortion not being in the constitution, until the Roe court “discovered” it in 1973. Not to mention the nearly 250-year precedent that the court shattered in Obergefell, when they “discovered” gay marriage hidden in the constitution.  Probably right next to the right to abortion, as well as the pre-emptive prohibition from ever electing Trump president.)

 The most striking characteristics of Sotomayor’s argument are her nakedly partisan tone and how consistently she calls for more power for her court.  She claims that the English equity courts “unlike this court” “constantly declined to lay down any rule that shall limit their power and discretion.”  She says that those older courts “[kept] injunctive relief flexible,” as opposed to the originalists on this court, who want to “freeze in amber” the precedents that they cite.  She takes a final shot at the conservatives, saying that unlike the equity courts she claims “delight[ed] to do justice, and not by halves,” this court only wants to do justice “by piecemeal,” which results in “strip[ping] federal courts of authority” and causing a “diminution of judicial power.”    

But while Sotomayor makes typical “living constitution” arguments that tend toward giving courts the power to “legislate from the bench,” Ketanji Jean-Pierre goes flying right past Sotomayor in her truly awful dissent.  I would warn anyone not to read Jackson immediately before the sober clarity of Thomas or Alito, because doing so could give you the bends.

If Sotomayor sounds like a partisan guest on PBS, Jackson sounds like an unhinged MSNBC host and a high school sophomore had a baby, and that baby was elevated to SCOTUS purely for DEI reasons.  Because: yikes!

She comes out of the gate hot – hot, and stupid! – by slandering the conservative majority, saying “The Court’s decision to permit the Executive to violate the Constitution…is an existential threat to the rule of law.” 

That’s three partisan MSM talking points in one sentence, and things don’t get any better from there.  She constantly begs the question by assuming that Trump’s EO is obviously unconstitutional throughout, even though SCOTUS has agreed to take that contention up in the fall term.  Her tone is by turns emotional (she talks about her disillusionment, fear and frustration), heavy on the kind of lefty talking points she started with (describing the court as endorsing “a rule-of-kings governing system”) and light on relevant citations and concrete argument.

In fact, she disdains the originalists’ analysis of whether universal injunctions have analogous precedents in the English courts and the Founders’ Judiciary Act of 1789 as “a mind-numbing technical query.”  (Many sane lawyers would call it “establishing foundations.”) She also calls it “legalese” and “a smokescreen!” 

She uses inappropriate phrases such as “…(wait for it)…” as if she were me, writing my juvenile mockeries of self-important leftists, rather than a SCOTUS justice!  She also seems to not understand the roles of lower courts and SCOTUS any more than she understands what a woman is, because she chides the originalist SCOTUS members for their “dismissive treatment of the solemn duties and responsibilities of the lower courts.” 

First, if the partisan lower courts had been taking their duties and responsibilities seriously, we wouldn’t be in this mess!  Second, they’re LOWER courts, you dunce!   The job of the higher court is to evaluate and often reverse the lower courts.  How does someone who went to law school not know that?   

By the end – and despite her rejection of English law and our early court decisions which originated from it – she approvingly cites Hypothetical Interplanetary Law.  To wit, “A Martian arriving here from another planet would see these circumstances and surely wonder: ‘What good is the constitution, then?’”

Good lord.  I guess if an imaginary ET doesn’t like our constitution, we should just dissolve it and then re-establish ourselves as Ketanji-land?

Barrett’s backhanding of Jackson’s ridiculous blathering is unusually scathing, and yet still not nearly scathing enough.  She calls Jackson’s argument a “startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever,” and points out that it “[waves] away attention to the limits on judicial power as a “mind-numbingly technical query.” 

And she finally does the judicial equivalent of coming off the top rope to slam a metal folding chair over Jackson’s 10-cent head in what has to be one of the most brutal dismissals in SCOTUS history:  “We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

So that leaves us with the smartest of the 3 liberal justices, Elena Kagan, who didn’t write in this case.  And her silence is deafening.

Because in a talk she gave in 2022, Kagan forcefully pointed out the danger of district court judges issuing universal injunctions, saying, “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for years that it takes to go through a legal process.” 

In fact, she specifically condemned the practice of “judge shopping” to get those injunctions   She mentioned that when Trump was president, lefty plaintiffs went to the liberal northern district of California, and when Biden was president, righties went to a conservative district in Texas.

She was obviously right about that, since out of the 95 US court districts, 5 leftist districts have issued something like 35 of the most important 40 universal injunctions against Trump.  So Kagan is vindicated, and her clear stance against universal injunctions stands as a brave example of a justice not being swayed by her own personal political partisanship.

Oh no, wait.  In Trump v. Casa, Inc she voted against the position she had taken just three years ago, and by not writing a dissent, she gave no reason for the change.

I’d like to say, “I wonder why,” but we all know, don’t we?  When universal injunctions are hampering a Democrat president, they are very bad.  But when they are hampering a Republican president, they magically become extra super-constitutional and good.

Because on the high court – just as in Congress, and governors’ offices, and mayors’ offices – it’s (D)ifferent when they do it. 

Hamas delenda est!

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!