A First Hand Experience - Court Intervention Fraught With Danger

"Executive branch implementations and Legislation branch laws must rarely be addressed by judicial branch.  I believe our Founders envisioned this quite firmly.  However, the Elite Left has been quite successful in securing many high level judicial positions bringing in their judicial activism. As a result, in addition to the Left, even some conservatives seek court intervention when they should not. Best immediate policy is for Trump to continue filling judicial openings with strict Constitutional lawyers/judges." – Economics 501 responding to the last post that featured my letter published in the WSJ that showed how the elected branches of both major parties have given up their turf over the years in favor of the courts providing cover regarding contentious political issues they have no business being in.

 

Now I have first hand experience regarding the most disastrous time in my memory where conservatives sought a court solution to a problem best handled through the court of public opinion known as elections.  I have documented over the years that nothing good comes when the elected branches take their political problems to the judiciary for a solution.

 

It was early June 2012 & Carol & I were attending a seminar in NYC where Leonard Leo, Executive Vice President of the Federalist Society, was a major speaker.  The topic was the  Supreme Court case brought by 26 states & individual plaintiffs Kaj Ahburg & Mary Brown who were trying to overturn ObamaCare by claiming it was unconstitutional.  Oral arguments had been heard in March, 2012 & a decision was expected before the end of June 2012.

 

The Federalist Society is a nationwide organization of conservative lawyers that can exercise enormous influence in Washington without playing a direct role.  In particular, Leonard Leo, is in effect responsible for one third of the justices of the Supreme Court having played a crucial part in the nominations of John Roberts & Sam Alito, & of course most recently preparing the list of 19 judges & lawyers that President Trump used in selecting Neil Gorsuch as his first nominee to the Supreme Court.

 

Mr. Leo's presentation @ the seminar made it clear that he had played a similar influential role in bringing the aforementioned case against ObamaCare.

 

So here I was sitting in the middle of a room filled with people, most of whom I didn't know, who believed ObamaCare was going to be found unconstitutional by the SCOTUS in just a few weeks.

 

Nevertheless, I raised my hand @ just about the most triumphant part of the presentation, & when acknowledged I told Mr. Leo that I thought he had made a mistake bringing the case & that the Supreme Court had made a mistake accepting it.  I explained that I too thought the conservatives would win this one but my larger point was that asking the courts to decide matters like the constitutionality of ObamaCare was a treacherous dicey approach to solving problems resulting from loses @ the ballot box – like when BO won the presidency in 2008 & had control of the House for his first two years & control of a filibuster-proof Senate for just enough time to pass ObamaCare with 60 all-Democrat votes. It is easier to go to the SCOTUS than to win such majorities @ the ballot box – but you get a real crapshoot @ the SCOTUS that results in the loss of liberty while establishing judicial tyranny.

 

Before the seminar adjourned @ least half the class told me they agreed we should scrap the lawsuits & fight to change laws @ the polls. 

 

When the SCOTUS ruled later that month that ObamaCare was constitutional no one was more surprised than me.  To my horror the fear that I expressed to Leonard Leo & the class had happened – ObamaCare was still the law of the land, as it would have been if no case had been brought, but now in addition to the ObamaCare law being on the books we also have another dangerous new legal precedent as if we needed another new dangerous legal precedent to help bring down our Republic.

 

Chief Justice John Roberts had gone out of his way to find ObamaCare constitutional.  BO's attorneys had argued that the penalty for not buying ObamaCare policies on the exchanges was not a tax but a penalty.  Roberts found that ObamaCare's requirement that most Americans obtain healthcare insurance or pay a penalty was authorized by Congress's power to levy taxes.

 

Republicans had campaigned for seven years to repeal ObamaCare & then worked fruitlessly for all of 2017 to repeal, repeal & replace, or repair ObamaCare before finally being able to weaken it with the passing of the GOP tax bill last December that eliminated the individual mandate penalty (tax) provision starting in 2019 – thereby highlighting the point of this post; namely, it is less work for politicians to bring a case to the judiciary than it is to try to win their points through elections. 

 

But the decision to want a handful of people, unelected judges, including justices on the Supreme Court, that no one every heard of or could identify if their life depended on it, to overrule our elected representatives, is fraught with danger to our liberty, our prosperity, & uncertainty for many parts of our lives.

 

Mindset Change Needed To Avoid Judicial Tyranny

Below is my letter that was published today in the WSJ under the headline We'd Need Fewer Courts If Congress Would Do Its Job.

 

The letter highlights the mindset change needed to avoid judicial tyranny.  It shows how the elected branches have given up their turf over the years in favor of the courts deciding issues they have no business being in – but the elected branches are content thinking they have some cover to play the innocent party hoping the electorate never discovers their game of irresponsibility.

 

One reader of the WSJ looked me up on the internet & commented on RTE that I may be understating the current state of affairs when he wrote "The notion of judicial supremacy has become so engrained that instead of a Constitutional Republic, we now have a Judicial Oligarchy."

 

Dear Editor,

 

I was disappointed to read in your editorial "The National Security Tariff Ruse" (March 13) that "steel users should challenge this in court as the unlawful ruse it is."  More and more the elected branches look to the courts for resolution of matters best resolved by the court of public opinion – namely, elections.  I cringe every time I hear turning to the judicial branch for resolution of some problem best handled by the people – who are superior to any of the branches.

 

The Founders never envisioned that the two elected branches would allow the judicial power grab that has developed where a district court judge or a five-justice majority of the Supreme Court decide cases they have no business hearing.

 

The citizenry learns no good lesson if the courts, time after time, spare us from the problems that would ensue from our election decisions.  Please be careful not to promote ideas that will encourage or accelerate the court's ill-gotten power that is well on its way to becoming judicial tyranny.

 

Students For Liberty

In June 2012 Carol & I attended a seminar in NYC co-hosted by our dear friend the late Whitney Ball (Donors Trust) & Adam Meyerson (The Philanthropic Roundtable). 

 

Notable speakers included Leonard Leo, Executive Vice President of the Federalist Society – the man who prepared the list of judges & lawyers that President Trump used in selecting Neil Gorsuch as his first nominee to the Supreme Court, & Heather Higgins, President & CEO of the Independent Women's Voice – an organization that has done extensive studies of ObamaCare that have been featured on RTE.

 

Attendees of the seminar were introduced to the Atlas Network – an organization, much like the two firms who co-hosted the event, dedicated to educating the public about the importance of free markets & limited government. 

 

With regard to today's youth, the Atlas Network partners with Students For Liberty, an international libertarian advocacy & education organization whose goal is to enable young people who are interested in the ideas of individual liberty, free-market capitalism, limited government, & restrained foreign policy to thrive.

 

Students For Liberty began in 2008 when a group of 100 people thought they were attending a single event @ Columbia University.  Today Students For Liberty is a very dynamic & exciting international movement that has built a network of over 50,000 students, connecting over 900 pro-liberty groups on college campuses all over the world.  As such, Students For Liberty is a network of pro-liberty students from every corner of the globe working to educate fellow students on the ideas of individual, economic, & academic freedom.

 

Much like Hillsdale College, in order to maintain its independence, Students For Liberty accepts no government funding.

 

I have developed a first hand respect for the Atlas Network working with them over the past almost six years & it was no coincidence that Students For Liberty was highly endorsed independently by Gordon Cummings @ my annual meeting with Donors Trust in Alexandria, Virginia earlier this month.  Accordingly, I recommend anyone in college today to contact Students For Liberty to see if there is a good fit between the work they are doing & your own pro-liberty goals for helping America.

 

Find out more @ www.studentsforliberty.org. 

 

Just let me know if you have trouble reaching SFL & I will help. 

 

Airport Quiz

click on graphic to enlarge

 

Although I saw the subject quiz on the National Museum of Mathematics website (www.MoMath.org), after it appeared in the WSJ, it really has little to do with math & a lot to do with reasoning & common sense.

 

I think just about the entire readership will find it enjoyable & just a little bit challenging.

 

Please let me know your answer – I will post all correct answers or alternatively will send the solution privately to anyone who requests it if no one figures it out.

 

Airport Quiz

 

As a ticketed passenger walks to their gate in the airport they realize they have to stop for 30 seconds to tie their shoe.  A moving walkway is in view ahead of them.  The passenger walks @ a constant speed relative to the ground or walkway when they are walking.

 

Should they tie their shoe before getting on the walkway, wait to tie their shoe while on the walkway, or does it matter in getting to the gate @ the earliest time?

 

The Judiciary's Connection To The Importance Of Winning The Presidential Popular Vote

The last time the Supreme Court heard a case decided by a district court, without an appeal being decided by a U.S. Court of Appeals,  was 2004 – prior to that it was 1982 so it doesn't happen often.

 

Last week the Supremes announced they would not hear, out of turn without going through the appeals process, a case challenging the legality of President Trump's decision to end BO's DACA program that is scheduled to start phasing out on March 5 in accordance with Trump's executive order from last September.  For background – see referenced post below for complete details regarding how the DACA program was created & Trump's plan to phase it out.

 

The Trump administration had asked the Supreme Court to bypass the appeals court to expedite the proceedings & obtain a final decision thereby wrapping up a contentious issue that has gone on too long for all concerned including the DACA recipients.

 

District Judges William Alsup, of the U.S. District Court for the Northern District of California, & Nicholas G. Garaufis, of the Federal District Court in Brooklyn, both blocked Trump's plan to end DACA & even ordered Trump to resume accepting applications.  Judge Alsup said that his nationwide injunction was "appropriate" because "our country has a strong interest in the uniform application of immigration law & policy."

 

But that "strong interest" has not been great enough for Congress to act – it is Congress that is responsible for immigration laws under the Naturalization Clause of the Constitution -Article I, Section 8, Clause 4.  Congress has barely started discussing a DACA matter even though the aforementioned March 5 deadline is @ hand.  Who thinks Congress will solve the DACA problem, or any problem, without a deadline to work against?

 

And that "strong interest" also has not been great enough for the Supreme Court to circumvent the immediate appeals court process & render a clear decision regarding a contentious issue that obviously both the Legislative & Judicial branches want no part in solving.

 

But even worse both district judges ruled without following existing law – their rulings were based on an executive order written by BO in 2012 & their own personal feelings for the most part.

 

Judge Garaufis cited Trump's anti-immigrant tweets & public statements saying he was "sympathetic" to those who did not apply for DACA before September 5 – the date Trump's unwinding process of DACA began.  Garaufis was concerned 1) that up to 1,400 DACA recipients a day could lose their deportation protection, 2) that some could lose healthcare thereby imposing burdens not only on the immigrants themselves but on public hospitals, 3) that employers will be hurt as DACA recipients lose their jobs resulting in "staggering adverse economic impacts" that could include up to $800 million in lost tax revenue, 4) that ending DACA would also have "profound & irreversible" social costs as hundreds of thousands of DACA recipients are separated from their families, 5) with Trump's "recurring redundant drumbeat of anti-Latino commentary" saying "it's extreme, it's recurrent, & it's vicious", & 6) with Attorney General Jeff Sessions saying Sessions "seems to think that courts don't get to have their own opinions". 

 

What was missing with all of the above was either judge citing chapter & verse from the Constitution or any existing statute – which is what they are supposed to do.  Garaufis's above list sounds like something a lawmaker should take into account – not a judge.  When the court makes a ruling that is not based on existing law they have violated the separation of powers & have become activists that are determined & resolved to shape policy themselves if the other two branches of government will let them – which they have for decades.

 

In the simplest of terms a court ruling, other than one based on following clearly stated existing law, is not lawful.  A law can only can be written by Congress & signed into law by the President.

 

So what the Legislative & Judicial branches have let stand is two district judges in California & Brooklyn overruling the President of the United States regarding a matter that affects the entire country.  Doesn't this sound ridiculous?  Who could possibly think this is right or what our Founding Fathers fought for – to let unelected judges, including those on the Supreme Court, that no one every heard of or could identify if their life depended on it overrule our elected representatives?

 

The Judiciary has usurped the power of the Legislative branch & in the process bullies the President – the Judiciary has gone far afield from what Alexander Hamilton wrote in The Federalist No. 78: "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them."  What we were given by our Founders as the "least in a capacity to annoy or injure" we have let turn into the actual ability & power to tyrannize the elected branches & therefore ourselves.

 

Well, Governor Mike Huckabee has never agreed with this judicial power grab.  Click here to hear the gov present his latest lesson of 9th grade civics that both the Members of Congress & the Judiciary know full well but are avoiding @ all costs to themselves.  In fact Mike points out that Trump is complicit & equally in violation of his oath for not simply ignoring the district judges & handing each of them a copy of the Constitution to read.  Note the Huckabee video specifically refers to travel bans but the DACA matter equally applies.

 

Trump is quite often seen standing before a portrait of President Andrew Jackson who is the best example of a president who ignored the Supreme Court in fulfilling his own oath to "faithfully execute the Office of President of the United States."  In short judges & the Justices of the Supreme Court are not the only ones who pledge to support the Constitution or to interpret it & Trump being a fan of Jackson knows this. 

 

But Trump is not in the same position as Andrew Jackson who was regarded as a popular war hero.  Jackson won 56% of the popular vote & 68% of the electoral college vote in 1828 & 56% of the popular vote & a whopping 82% of the electoral college vote in 1832.  Trump won 45.9% of the popular vote & 56% of the electoral college vote in 2016.

 

So we have finally found the importance of winning the presidential popular vote.  If Trump tried to change the mindset of the citizenry's erroneous understanding of the role of the Judiciary, by ignoring rulings that overstep their bounds, it would join the hateful list of fictitious grounds for his impeachment. 

 

Reference Post:  America Can't Afford Not To End DACA & Other Politically Correct Menaces