Archive for the ‘The Constitution’ Category
After reading former Sen. Richard Lugar’s NYTimes op-ed on immigration, it isn’t surprising that he isn’t a senator anymore.
The first major tipoff came when he said “whether or not you like President Obama’s actions, he has operated under longstanding provisions of law that give the executive branch discretion in enforcement.” It’s stunning that a former senator would make such a foolish straw-man argument. That isn’t the heart of United States v. Texas. The heart of U.S. v. Texas is found on pg. 7 of Judge Andrew S. Hanen’s opinion when he said “One of these memoranda contained an order establishing a new program utilizing deferred action to stay deportation hearings and award certain benefits to four to five million individuals residing illegally in the United States.”
SCOTUSblog talked about the topic of standing in this post, saying “Here is what is at issue regarding state “standing” to sue: to be allowed in federal court under Article III, a state government — like anyone else who seeks to sue in those courts — would have to show that the action being challenged causes it a definite injury or harm. The injury cannot be theoretical or speculative; it must be real, existing right now or predictably.”
That actually shouldn’t be that difficult to prove. It’s inevitable that having “four to five million individuals residing illegally” in Texas or one of the other 25 states that filed the lawsuit would cost individual states financial harm to one degree or another. That harm might come in the form of higher costs for health care programs, education or other benefits that are paid for at the state, county or school district level.
More importantly, though, Judge Hanen stated that one of Jeh Johnson’s memoranda “contained an order establishing a new program” that would “award certain benefits.” That isn’t allowed by Article I of the Constitution. Only the legislative branch is allowed to create new programs. The executive branch executes the programs on the books.
If the justices cared about the Constitution’s authorities, they’d admit that the executive branch has the authority to exercise prosecutorial discretion but that it doesn’t have the authority to create a new program that Congress hasn’t authorized through legislation.
The thought that a senator, especially one that’s been a committee chair, doesn’t understand this is a bit frightening.
Gregory Diskant’s op-ed is a display of some of the most warped thinking (if it rises to that level) I’ve seen. Diskant argues that it “is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege.”
First, the principle of advise and consent is a responsibility, not a right or privilege. Second, it’s altogether improper to think that the executive branch has the authority to determine when the legislative branch has waived its responsibility of advise and consent. The Supreme Court’s 2014 ruling in NLRB v. Noel Canning is instructive on this separation of powers issue, saying “The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation.”
Further, it states “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.” In other words, the Senate’s rules, which are voted on at the start of each new Congress, determine when it’s in recess or when it chooses to waive its advise and consent responsibilities. It isn’t within the Executive Branch’s authority to make official determinations on how the Legislative Branch must do its job.
If the Supreme Court ruled that the Executive Branch could tell the Legislative Branch how to do its jobs, that would eliminate the system’s necessary checks and balances. Further, such a ruling would eliminate the concept of co-equal branches of government.
This sentence is particularly disturbing:
The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent.
Again, the Supreme Court ruled in NLRB v. Noel Canning that the Executive Branch doesn’t have the authority to tell the Senate how to do its business. That ruling wasn’t a 5-4 ruling, either. It was a 9-0 decision, meaning it was such an easy ruling that all 9 justices voted against President Obama’s executive overreach.
Mr. Diskant’s op-ed isn’t a serious piece of work. It’s virtually worthless from an academic or legal standpoint.
Technorati: Barack Obama, Merrick Garland, Supreme Court Nominee, NLRB v. Noel Canning, Advice and Consent, Co-equal Branches of Government, Executive Branch, Legislative Branch, Checks and Balances, Separation of Powers, Judicial Branch
Dennis Prager’s latest Townhall article interrupts the Democrats’ narrative that Merrick Garland, President Obama’s nominee to replace Antonin Scalia on the Supreme Court, is a moderate.
For instance, for the first time in the NFIB’s history, they will be taking a position against a Supreme Court nominee. In fact, it’s the first time in their history that they’ve taken any position, positive or negative, on a Supreme Court nominee.
Juanita Duggan, President and CEO of the NFIB, said they’re making their position known because “in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.” It’s apparent that Judge Garland’s mind was made up long ago. It’s clear that he’ll consistently favor Big Labor over the Constitution.
The term moderate isn’t relevant when talking about judges. You either interpret laws based on the plain language of the Constitution or you don’t. My thought is that moderate judges don’t exist except in newspapers like the NY Times, the Washington Post or the LA Times. Then there’s this:
“If the late Justice Antonin Scalia, a staunch conservative, is replaced by a moderate-to-liberal Justice Garland, the court would tip to the left on several key issues, like abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.”
In other words, the very same author who describes Garland as a centrist believes that Garland votes left on essentially every major issue confronting the nation and the Supreme Court.
Based on this information and the Times’ description of Judge Garland, we should assume that centrist/moderate judges agree with liberals on “abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.” I can’t wait to hear how that’s dramatically different than liberal justices like Sotomayor or Ginsberg.
Republicans should reject Garland. They shouldn’t give him a hearing. They shouldn’t give him a vote on the Senate floor. They give him a Reid-like pocket veto while explaining why Garland is a creature of the left and while highlighting how dishonest the Democrats are in calling Garland a centrist.
One of the eye-popping things in the OLA’s report on the IRRRB, aka the Iron Range Resources and Rehabilitation Board, is that “State statutes on IRRRB’s governance structure are vulnerable to a constitutional challenge.”
Before answering that question, let’s gather some history of the IRRRB. According to the OLA’s report, the IRRRB “is a state agency that has focused on economic development of the Iron Range in northeast Minnesota since 1941.” Further, the OLA’s report states that the ” term ‘IRRRB’ refers to both the agency and the board overseeing it.” The next part starts explaining why the IRRRB likely is unconstitutional. The OLA’s report states that the “IRRRB is an agency in the executive branch led by a commissioner appointed by the governor. Yet, state law requires members of the agency’s board to be legislators and grants the board substantial power over the agency’s spending decisions.”
The OLA’s report then states that “This arrangement is vulnerable to a challenge under the Minnesota Constitution’s separation of powers clause and its prohibition against legislators holding another public office. We base our conclusion on our review of the plain language of the Minnesota Constitution, historical context from the state constitutional conventions, and opinions from the Minnesota Supreme Court and Attorney General.”
The fact that the OLA’s conclusion is based on Minnesota’s constitution, the Minnesota Supreme Court precedents and Minnesota’s Attorney General means this isn’t a partisan shot at the IRRRB. I might dismiss the conclusion if Republicans brought the subject up. Jim Nobles, who has been serving Minnesota as the Legislative Auditor since 1983, is considered one of the few nonpartisan people in government.
Not surprisingly, that’s just part of the IRRRB’s problems. Check back later today for more of the IRRRB’s troubles.
Earlier this week, a video highlighted Sen. Schumer’s statements on judicial nominees that directly contradict his statements today. Because he got caught accidentally telling the truth, Sen. Schumer wrote this statement. Sen. Schumer’s statement highlights his judicial philosophy, which is captured when he said “During President Bush’s term, Democrats had voted for Justice Roberts and allowed Justice Alito to go through?—?both of whom said they would, as Justice Roberts said, be umpires calling balls and strikes. Once they got on the court they immediately started moving the court in an ideological direction, and they have continued to do so. Decisions that dramatically deviated from precedent and pulled America in a strongly rightward direction, handed down with a 5–4 majority, became the hallmark of this court.”
Schumer continued, saying “Under Chief Justice Roberts, the court has deviated from strongly held precedents on campaign finance issues, voting rights, choice, unions, environmental regulations, and many others.” Notice that Sen. Schumer didn’t accuse the Roberts Court of deviating from the text of the Constitution. Sen. Schumer’s biggest concern was that Justice Roberts didn’t follow precedents, which might or might not align with the text of the Constitution.
Frankly, precedents might not be worth much. If they’re grounded in the Constitution, then they might be helpful. If they aren’t grounded in the Constitution, precedents should be rejected and/or scrapped immediately. The gospel according to Justice Scalia says that text of the Constitution and the text of the statute being litigated determine the ruling. They’re the principles behind originalism and textualism.
It’s worth noting that liberals love precedents and stare decisis when it leads to their preferred political outcome but they rejoiced when the Supreme Court threw out the precedent that led to their ruling on gay marriage. Democrats like Schumer don’t care about precedents as much as they love getting the verdicts that fit with their agenda.
Putting things in biblical terms, the difference between basing rulings on the text of the Constitution and basing rulings on precedents is striking. Precedent-based rulings are flimsy like quicksand. Text-based rulings are as sturdy as the firm foundation that they’re built on.
Shouldn’t we want to build a judiciary that makes its rulings based on something foundational, not on something flimsy?
This statement is BS:
But whether Republicans agree or not with my evaluation of whichever candidate the president puts forward, they have a constitutional obligation to hold hearings, conduct a full confirmation process, and vote on the nominee based on his or her merits.
Sen. Schumer isn’t telling the truth. There’s nothing in the Constitution, in either Article I, which deals with congressional responsibilities, or Article III, which deals with the judicial branch, that requires Congress to act on a president’s judicial nominees. Further, Sen. Schumer voted 26 times during President Bush’s first term to continue filibustering President Bush’s judicial nominees. How is filibustering judicial nominees voting “on the nominee based on his or her merits”?
I’d like to thank Sen. Schumer for issuing this statement. It exposes the flimsiness of the liberals’ judicial philosophy.
Rebecca Otto has been threatening to file a lawsuit against a bill signed into law by Gov. Dayton. Apparently, Ms. Otto isn’t too bright in terms of the law and Minnesota’s Constitution. Article V of Minnesota’s Constitution talks about the executive branch of state government. Specifically, it says “The executive department consists of a governor, lieutenant governor, secretary of state, auditor, and attorney general, who shall be chosen by the electors of the state. The governor and lieutenant governor shall be chosen jointly by a single vote applying to both offices in a manner prescribed by law.”
Nowhere in Article V, Section 1 does it outline the duties of the State Auditor. That’s properly left up to the legislature and governor to determine through state statutes. If the court sides with Ms. Otto, it will be clear proof that the DFL has turned them into a super-legislative body.
Rep. Sarah Anderson, the chair of the House State Government Finance Committee, issued a statement, saying “Just one day after the nonpartisan Office of the Legislative Auditor’s report was released on county audits which definitively stated that it is within the legislature’s power to define the duties and authority of the Office of the State Auditor, State Auditor Rebecca Otto has decided to waste taxpayer dollars to file a frivolous lawsuit against the State of Minnesota and a select group of counties,” said Rep. Anderson. “The legislature acted in a bipartisan manner last session to expand the options counties have for their audits to save local governments and taxpayers money, as well as expedite the audit process. This lawsuit has no merit, and I am disappointed it will come at the expense of hardworking Minnesota taxpayers.”
This is important:
On February 3, 2016, the nonpartisan Office of the Legislative Auditor released their report on county audits done by the OSA. Here are several key highlights from that report:
The Minnesota State Legislature has always defined the duties and authority of the State Auditor
Jim Nobles is a serious man. When he says that the legislature “has always defined the duties of the State Auditor”, it’s because he’s thoroughly researched the Constitution and state statutes. From a legal standpoint, Nobles’ research is probably air tight. Then there’s this:
- 34 percent of counties stated they were not satisfied with the cost of OSA audits
- The 2015 law change allows for price competition while still giving the OSA significant authority to continue to ensure that all audits meet certain standards and to hold counties accountable in how they spend public dollars
- 32 percent of counties said that audits done by OSA were not timely, and many expressed frustrations that the reports came too late to be useful in saving taxpayer dollars for their annual budget process
That’s poison from a political standpoint. It just isn’t surprising.
Technorati: Rebecca Otto, Constitutional Office, Executive Branch, Minnesota Constitution, Mark Dayton, DFL, Sarah Anderson, House State Government Finance Committee, MNGOP, Jim Nobles, Office of Legislative Auditor, Audits, Counties
Apparently, Gov. Dayton thinks that legislatures can pass laws that override the U.S. Constitution. This AP article says that Gov. Dayton “is urging legislators to ban gun sales to people on terrorism watch lists.” Notice that there’s been a subtle shift from Hillary’s speech about the nexus between terrorism and the national no-fly list.
The article continues, saying that Gov. Dayton “concluded he doesn’t have the authority to restrict those sales on his own.” He’s right. He doesn’t have that authority. Instead, he wants “the Legislature to pass such a law”, adding that “people who aren’t allowed to board airplanes shouldn’t be able to purchase guns.”
That law would never be enforced because the judiciary would halt enforcement in a New York minute. One of the people on the no-fly list was the late Massachusetts Sen. Ted Kennedy. In a speech on the Senate floor, Sen. Dan Cotton, (R-AR), said that Sen. Kennedy “was on the list and couldn’t get off for weeks, having his flights disrupted time after time.”
If Minnesota passed a law that prevented people on the no-fly list from buying guns, they’d pass legislation that violates a person’s civil rights. That’s unacceptable because it’s unconstitutional.
Gov. Dayton swore an oath to uphold the Constitution. Stripping a person of their constitutional rights without due process is a direct violation of that oath.
Back in August, Donald Trump criticized Erick Erickson for banning him from the RedState Gathering for Trump’s disgusting misogynistic statements about Megyn Kelly. It’s December and Erickson is suddenly he’s Trump’s biggest fan.
Erickson’s ‘proof’ that Trump is brilliant is that “Trump demanded we bar any Muslims from entering this country and bar any American citizen who is Muslim from re-entering the United States.” Erickson then said that we should set “aside the merits of what amounts to at least, in part, an unconstitutional position.”
First, let’s not set aside the Constitution to judge the merits of Trump’s political genius. Next, let’s see Erickson’s ‘logic’:
Donald Trump not only got himself to the right of all the other candidates, but also got every single one of them save for Sen. Ted Cruz, (R-TX), to align themselves with Barack Obama.
That’s chilling thinking, if it can be called that. Last night, when Carly Fiorina said that Americans wouldn’t “set aside the Constitution” just because Mr. Trump says so, Erickson apparently thinks that that’s aligning with President Obama. Here’s a little hint for Erickson. That’s putting yourself in a position of strength.
Further, Trump looks like a third-world dictator, not a presidential candidate. If this is a negotiation and I’m one of the negotiators, I’d start by telling Mr. Trump that his view of the Constitution is disgusting and that it’s time he stopped ignoring the foundation that the United States was built on. Then I’d tell him that his anti-constitutional policy is a nonstarter. Next, I’d tell Mr. Trump that his bombastic rant sounds suspiciously similar to President Obama’s disgust with the Constitution.
Once I’d demolished Trump’s conservative credibility, then I’d tell him that protecting the United States while obeying the Constitution is possible.
Idiots like Erickson are Trump enablers. Their message essentially is ‘Who cares if Trump ignores the Constitution like Obama? Who cares that his ideas don’t work?’ If ignoring the law and pushing policies that don’t work are all that’s required to make the GOP base happy, then they should be thrilled with President Obama.
Donald Trump’s love of eminent domain abuse isn’t sitting well with constitutional conservatives. Recently, Carly Fiorina explained why Mr. Trump’s love of eminent domain abuse runs contrary to limited government conservatism when she said “I think Donald Trump, among others, has engaged in crony capitalism in its most raw and abusive form. When commercial interests get together with government to take away private property for their own commercial interests, that’s a big problem. And I think I join so many conservatives in saying that eminent domain has been abused. And it has been abused by the collusion between governments eager for revenue and businesses eager for competitive advantage. So I find the Kelo case—if ever there was a case for judicial engagement instead of judicial restraint, it’s this set of issues.”
There’s nothing pro-limited government about developers who don’t respect private property rights buying off city officials in their effort to steal land from a private property owner. That’s the definition of crony capitalism:
Crony capitalism is a term describing an economy in which success in business depends on close relationships between business people and government officials. It may be exhibited by favoritism in the distribution of legal permits, government grants, special tax breaks, or other forms of state interventionism. Crony capitalism is believed to arise when business cronyism and related self-serving behavior by businesses or businesspeople spills over into politics and government, or when self-serving friendships and family ties between businessmen and the government influence the economy and society to the extent that it corrupts public-serving economic and political ideals.
Donald Trump isn’t a constitutionalist. He definitely isn’t a limited government conservative. Finally, it’s apparent that he thinks that he should get anything he wants even if that something is owned by someone else.
That’s the definition of evil. If we want an evil president, we can just keep the corrupt SOB that’s currently in the White House or elect a corrupt career politician that’s running as a Democrat. The day that the Republicans nominate another corrupt politician is the day I leave the GOP.
When Bret Baier asked Donald Trump about his opinion of eminent domain, Mr. Trump said that “eminent domain is a wonderful thing” before saying that eminent domain should be used to get “holdouts” to sell their property.
During his interview with Bret Baier, Mr. Trump described a situation where the developer had purchased “11 or 12 parcels” but one “holdout” wouldn’t sell. Mr. Trump argued that the developer, who wants to create a big factory employing thousands of people, should be able to use eminent domain to boot the private property owner out of their home. Now that he’s at the center of a conservative firestorm, Trump’s retreating, saying that “You can’t build a road without eminent domain. In order to survive as a country, how you can not have roads?”
That’s classic liberal backtracking. It’s no different than Hillary Clinton saying that she doesn’t support the TPP that she negotiated. Mr. Trump knows that nobody in the conservative movement objects to the use of eminent domain to build roads or other pieces of infrastructure. That isn’t controversial.
The right to be secure in your property is a fundamental right guaranteed by our Constitution. It’s the foundation of our capitalist system. Mr. Trump thinks that taking a person’s property isn’t a big deal if it’s for the greater good, as long as he’s the determiner of what the greater good is.
That’s just a different way of saying that the ends justify the means. Either way, this proves that Trump isn’t the man (or woman) of integrity we need in the White House. Having a president who would appoint justices that reinforce Kelo v. New London ruling