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Tonight, I take up another constitutional question related to the Mueller investigation – whether or not the special counsel law is constitutional. But, first, an update:
Last time, I told you how a sitting President can’t be indicted, if one follows the long-standing practice outlined in two Justice Department memos. This week, according to Rudy Giuliani, Mueller’s team admitted to him they have no authority to indict a sitting President. As a result, many have speculated that what Mueller is really up to is laying the groundwork for impeachment after the November elections. On to tonight’s question: The Supreme Court upheld the constitutionality of the post-Watergate independent counsel statute under the Appointments Clause in a 1988 case, Morrison v. Olson. Article II, Section 2 of the U.S. Constitution authorizes the President to nominate what are now called “principal” officers with the advice and consent of the Senate. “Inferior” officers, on the other hand, are to be appointed by the President, the courts, or heads of federal departments. Congress can specify which in the enabling statute. As odd as it may sound, there is no clear line between “principal” and “inferior” officers. The framers did not leave a detailed set of instructions to determine which is which. The Supreme Court held in the 1988 case that the independent counsel at issue was a lawfully appointed “inferior” officer based on four factors: First, the independent counsel was subject to removal by a higher Executive Branch official. Second, the statute only empowered the independent counsel to perform certain limited duties. Third, the independent counsel’s reach only extended to certain federal officials suspected of certain serious crimes. And fourth, the independent counsel’s authority was temporary and to be terminated when the job was done. This could be said to describe Special Counsel Robert Mueller, but it has been argued that his appointment is unconstitutional when you look at the same four factors examined in the 1988 case: Mueller is going after a large number of people for numerous types of crimes – including many unrelated to Trump-Russia collusion. This makes him analogous and in some ways more powerful than U.S. Attorneys, who are “principal” officers appointed with the advice and consent of the Senate. While Mueller does have a boss, it is further argued that Rod Rosenstein cannot lawfully delegate his authority to Mueller to bring all kinds of indictments any more than President Trump could delegate his veto power to Rosenstein. The argument is intriguing, but I doubt that any court would so hold. It would have to be brought up in the posture of a case where an indictment was issued and I just can’t see a judge tossing an indictment on the grounds that Mueller was not constitutionally appointed. There’s too much water under the bridge. But I could be wrong and the issue could end up in the Supreme Court. For now, I’m going with the odds that special counsel laws are generally upheld as constitutional. Don Powers is an award-winning presenter on the Constitution who has re-worked his course information for college students into classes on the Constitution for the public. He found that his college students didn’t understand the Constitution before taking his course, and neither do most adults. “We’re losing our freedom,” Powers says, “because too many people can’t see that the Constitution protects our freedom. Unfortunately for America, our elected politicians, un-elected judges, and bureaucrats are moving us back to the rule of man.”
Powers received the George Washington Medal from Freedom’s Foundation at Valley Forge for his class “Understanding the Constitution.” He is the President of the Oklahoma City chapter of the Foundation. Powers most recently taught his class this spring under the umbrella of Oklahoma State University’s Osher Lifelong Learning Institute. During the last 10 years, he has taught the class to approximately 3,000 people from book clubs, veterans groups, churches, and patriotic organizations. His classes draw from The 5000 Year Leap by W. Cleon Skousen which Powers calls one of the best books on the Constitution ever written. Its 28 principles of freedom begin with natural law, the only reliable footing for sound government. The Founders of this nation were familiar with these principles and used them to structure the Constitution. “If you don’t understand where the Founders were coming from, it’s hard to understand the document and how it was written,” Powers says. He also teaches key elements of the Declaration of Independence and seminal historical events from the Revolutionary Era. “The Constitution is not hard to understand once properly taught,” Powers says. “It was written for the average person living in the colonies at the time. Any reasonably intelligent person today can understand it with a little background.” Despite its simplicity, “the Constitution is not being used properly today,” he says, “especially not by Congress, which grants too much discretion to the federal agencies and takes too much power away from the states and the people.” This adversely affects the Rule of Law and constitutes a regression to the rule of man, Powers rightly says. Continuing, Powers says, “When people try to identify anything they can do today, without government involvement, they usually conclude that government touches every conceivable thing they might do. We have allowed the government to escape the bounds of the Constitution.” “The Constitution means what it says (The Stated Powers, the restrictions on the Government) and it means what it doesn’t say (The Reserve Powers held by States and ‘We the People’),” Powers says. “If the Constitution does not give a power to the federal government, then the federal government is prohibited from exercising that power.” This last point puts Powers on the side of William Howard Taft against Teddy Roosevelt, who believed that a President can do anything the Constitution doesn’t forbid. Even if unmoored from justice and natural law? The View of the Constitution by our American Founders, President Taft, Powers and other Constitutionalists is the more humane and sustainable vision – limited government, which Powers says is, “the original intent of the Founders from their writings and from analysis and research into the four-corners of the documents that constitute the United States of America’s organic law.” Powers wrote a pamphlet on how states can take back power from Washington using the Constitution. “The Toolbox of States’ Rights – A Model Plan for States to use in Pushing Back Against Federal Government Over-reach” is available from: Don M. Powers c/o Powers At Law, LLC 1420 Bond Street Edmond, OK 73034 Attorney Powers will help and consult with people interested in teaching Constitution classes in their area. He is currently developing a book on the Constitution from his newspaper columns and his own research conducted into the Founders and America’s organic law. More patriots like Powers, please! Supreme Court strikes down federal law against sports betting (Constitution news round-up)5/16/2018
Federalism – Supreme Court strikes down federal law against sports betting as violation of anti-commandeering rule
http://thehill.com/regulation/387560-supreme-court-strikes-down-law-banning-sports-betting Separation of Powers – dismissal of appeal in Obamacare subsidy case leaves intact executive can’t spend money Congress hasn’t appropriated https://www.washingtontimes.com/news/2018/may/16/court-saga-over-obamacare-payments-reaches-end/ State constitution figures in state lower court striking down California’s assisted suicide law as outside the scope of a legislative special session http://www.lifenews.com/2018/05/15/judge-overturns-california-law-legalizing-assisted-suicide-rules-it-unconstitutional/ 14A Equal Protection: Oklahoma Supreme Court upholds voter ID law; protects election integrity, not an undue burden http://www.votingintegrityinstitute.org/wp-content/uploads/2018/05/ACRU-Election-Integrity-Bulletin-May-14-2018.pdf 1A: court clears release of James O’Keefe video showing teachers union attempting to secure buyout for teacher accused of touching a student; free speech trumps commercial interests at stake http://freebeacon.com/politics/judge-denies-teachers-unions-requested-restraining-order-project-veritas/?utm_source=Freedom+Mail&utm_campaign=b30f6f1138-EMAIL_CAMPAIGN_2018_03_19&utm_medium=email&utm_term=0_b5e6e0e9ea-b30f6f1138-45628225 Electoral College: National Popular Vote compact closing in on success with passage in Connecticut legislature; Governor expected to sign https://www.dailysignal.com/2018/05/10/connecticut-subverts-the-electoral-college/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiWm1FNE4yWXlZalU1TTJGaSIsInQiOiJDNXRmdzRTOSthVnAyOTJtNFJ0a1ZmT01zNHZmWFNUMHFNSUhcL1lDT24yUUxyU1BIRWdyaXh2NkdwVWRIK3duQis4MlgyRElKaXVQTzJxUVwvQ1Z2WWFPTjJYajZ4WmdUMG05RTdvVzVIMFM4KzM0RStxVCtjUWhpb0loMUkzTnFhIn0%3D 1A: federal appeals court prevents IBEW from requiring photo ID to end union membership and stop dues payments. http://freebeacon.com/issues/federal-appeals-court-tosses-union-id-reqs/?utm_source=Freedom+Mail&utm_campaign=8ab207f832-EMAIL_CAMPAIGN_2018_05_09&utm_medium=email&utm_term=0_b5e6e0e9ea-8ab207f832-45628225 1A: famous First Amendment lawyer says Euro-style ‘right to be forgotten laws censor truthful and factual speech https://www.nytimes.com/2018/05/07/opinion/google-right-to-be-forgotten-first-amendment.html 1A: temporary restraining order against supposedly libelous political ad in Arkansas is probably an unconstitutional prior restraint http://reason.com/volokh/2018/05/15/extra-twist-in-the-arkansas-prior-restra 1A: UMichigan is sued for Orwellian speech code that governs students on and off campus, enforced by ‘secret police’, public shaming, and ‘reeducation camps’ https://pjmedia.com/trending/its-now-1984-at-the-university-of-michigan/ 1A: guards told inmate to lie or be confined to his cell; Second Circuit rules refusing to snitch is protected 1A conduct. http://ij.org/wp-content/uploads/2018/05/15-1631_opn.pdf 1A Free Press: bill in Missouri would counteract Supreme Court ruling, grant free press rights to student journalists http://www.kansascity.com/opinion/editorials/article210812539.html 2A: ignore the disarmament whisperers, the deterrent effect of an armed citizenry on a rogue government is real https://townhall.com/columnists/scottmorefield/2018/03/12/think-theyll-never-come-and-take-your-guns-without-an-armed-revolt-think-again-n2459868/ 2A: Gun control advocates can no longer claim tough gun laws have stopped mass shootings in Australia https://www.cbsnews.com/news/7-dead-australia-mass-shooting-22-years-margaret-river-western-australia/ 4A: Supreme Court rules rental car drivers not on the contract are protected against unreasonable search & seizure in opinion that blends property rights and expectation of privacy rationales http://reason.com/volokh/2018/05/15/byrd-v-united-states-the-supreme-court-t 4A: Fourth Circuit requires some individualized suspicion for forensic searches of cell phones seized at the border, going forward. http://reason.com/volokh/2018/05/09/important-fourth-circuit-ruling-on-cell Federalism: pending bills making it a federal crime to assault a police officer seen as contrary to precedent saying federal government does not have a general power to punish violent crime http://reason.com/volokh/2018/05/12/the-protect-and-serve-act-is-both-unnece 14A Equal Protection: twisted Texas law directed at polygamists seen as enhancing punishment on all married persons for sexual assault http://reason.com/volokh/2018/05/10/extra-punishment-in-texas-for-rape-if-yo 14A Equal Protection: bail reform movement logic applied in case involving traffic fines imposed regardless of ability to pay http://media.ca8.uscourts.gov/opndir/18/05/172381P.pdf Economic Freedom: Arizona enacts food truck freedom law http://reason.com/volokh/2018/05/15/food-truck-freedom-in-arizona Amendments: “Iowa Latest State to Reject Convention of the States” https://www.thenewamerican.com/usnews/constitution/item/29025-iowa-latest-state-to-reject-convention-of-the-states Amendment proposed to abolish Article 2 Section 1 requirement President must be a natural born citizen; little different than discrimination on race or ethnicity http://reason.com/volokh/2018/05/14/the-case-for-abolishing-the-requirement Ben Franklin’s famous ‘Join or Die’ snake cartoon followed a military loss to the French https://constitutioncenter.org/blog/the-story-behind-the-join-or-die-snake-cartoon Yo, @TheOnlyEdAsner! Saying rich white men can’t write a good Constitution is like saying comedy shows with rich white men can’t be funny. http://www.liberato.us/rapid-response.html Separation of Powers: One of the dueling DACA lawsuits is assigned to Judge Hanen, original judge on 2015 DAPA challenge and DACA-skeptic.
https://theconservativetreehouse.com/2018/05/02/texas-v-daca-draws-federal-judge-andrew-hanen-big-trouble-looms-for-immigration-activists/ Dueling DACA lawsuits may result in issuance of dueling national injunctions by lower courts http://reason.com/volokh/2018/05/06/daca-and-the-danger-of-conflicting-injun 2A: students from 300 schools across the country walk out to support the Second Amendment https://abcnews.go.com/Politics/pro-amendment-student-walkout-takes-place-country/story?id=54878531 Federalism: Trump signs executive order to start pulling federal government out of K-12 education, return control to states and localities http://bwcentral.org/2018/05/donald-trump-signed-executive-order-to-pull-feds-out-of-k-12-education-promise-to-return-school-control-to-state-and-local-officials/ Equal Protection: “The Transgender Bathroom Wars Continue in State Court” http://reason.com/volokh/2018/05/03/the-transgender-bathroom-wars-continue-i 1A: Do you want your state appointing fact checkers and disapproving of your online posts? Bill introduced in California http://www.thegatewaypundit.com/2018/04/it-begins-california-senator-introduces-bill-to-kill-free-speech-requires-state-sanctioned-fact-checkers-to-approve-online-content/ 1A Freedom of Religion: which would you rather have – freedom of conscience or beheading for apostasy? Tough choice, huh? https://www.investigativeproject.org/7431/threats-to-apostates-most-severe-in-muslim 1A Free Press: series winds up with a look at the right of all – not just professionals - to use the printing press http://reason.com/volokh/2018/05/06/freedom-of-the-press-as-the-equal-freedo 2A: “Trump at NRA Convention: Trusting The People with Guns Is Part of Trusting Them with Freedom” http://bwcentral.org/2018/05/trump-at-nra-convention-trusting-the-people-with-guns-is-part-of-trusting-them-with-freedom/ 4A, State Constitution: drug arrests at immigration checkpoint thrown out because use of drug-sniffing dogs showed primary purpose was drug interdiction w/o a warrant, not immigration enforcement https://www.nytimes.com/2018/05/04/us/new-hampshire-border-patrol-illegal-checkpoints-aclu.html 11A: Views clash on rationales for state sovereign immunity http://www.libertylawsite.org/2018/05/04/state-sovereign-immunity-originalist-challenges-and-will-baudes-new-article/ 14A Equal Protection: Colorado Republicans winning reforms to secretive civil rights commission that ensnared Masterpiece cake baker https://www.dailysignal.com/2018/05/02/secretive-commissions-determine-who-violated-anti-discrimination-laws-now/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell%22&mkt_tok=eyJpIjoiTkRObE1HRTNORGxpTVRNNCIsInQiOiJZM0FMTnAza0VPSHV1KzJGTXZ2ajVsOTZBcXdCTDFCRFBkNStpdlVkR1FsTUdXSnY4R3B5UnZFdDVIS212XC9cL2hRU2JoZFNsUkcwRkw5SnMyYmJzeElpZ01PWXI0cnZURmNsRGUrUFwvRVlGZldNYXZ1YmpQNDhnRENwQVwvWGJSdTYifQ%3D%3D Administrative Procedure Act does not authorize national injunctions, as some believe http://reason.com/volokh/2018/05/08/does-the-apa-support-national-injunction Religious freedom facing cultural headwinds – fewer church-goers, more identity politics and anti-religious animus http://www.libertylawsite.org/2018/05/02/masterpiece-cakeshop-religious-freedom-nones/ Prof. Randy Barnett’s book recommendations from the Founding Period to today, with a stop-over in Progressive eugenics theory http://reason.com/volokh/2018/05/07/books-on-the-constitution-for-libertaria Hagiographic documentary of Ruth Bader Ginsburg extols her love of the U.S. Constitution over the South African constitution. Then I put my hearing aids in. https://www.newsmax.com/newsfront/ginsburg-movie-reviews-rotten-tomatoes/2018/05/07/id/858814/ Don’t forget to laugh: “Korean war must continue: Hawaiian federal judge declares Trump's peace effort unconstitutional” (satire) http://thepeoplescube.com/ There were questions all week about the constitutionality of the Mueller investigation. Tonight, I take up one of those questions: can a sitting President be indicted while in office?
The short answer is ‘no’, according to the Justice Department’s Office of Legal Counsel which has looked into the matter twice, once during the Nixon crisis and again during Bill Clinton’s presidency. Here’s their bottom line from the year 2000:
Remember, though, that this is just an opinion and a court could decide differently. Remember, also, that the appropriate remedy for a President-gone-bad is impeachment, not criminal prosecution while in office. Prosecution AFTER the President leaves office is another matter entirely. The interference rationale would no longer apply, and the plain language of the Constitution permits prosecution afterward. The Impeachment Clauses [Article 1, Section 3, Clauses 6 and 7] expressly state that a President is subject to indictment, trial, and punishment after an impeachment conviction in the Senate sets up removal from office. You won’t find a ‘separation of powers’ clause in the Constitution, but the entire structure of the Constitution embodies the concept. The legislative, executive, and judicial branches and powers are set forth separately in the first three Articles of the Constitution. The Framers were influenced by the ideas of Montesquieu who warned that the failure to separate governmental powers would lead to the loss of liberty by virtue of the same government officials enforcing tyrannical laws that they themselves had just enacted. Failure to separate powers could further lead to violence and the “end of every thing,” Montesquieu warned. The Justice Department’s analysis focused on constitutional duties the President alone is called upon to perform, duties such as being the commander-in-chief, negotiating treaties, and vetoing legislation passed by Congress. [2000 memo at 229,246-247]. The exercise of these duties would be substantially impaired by imprisonment, by the stigma of criminal process hanging over a President’s head, and by the mental strain and other burdens of having to prepare a criminal defense while in office. [2000 memo at 246]. The Justice Department distinguished sitting for a deposition in a civil matter, as happened in the Clinton-era Paula Jones case, from the much higher burdens that criminal process would impose. Moreover, burdening a President with criminal process while in office would destabilize the entire executive branch [2000 memo at 230] and give 12 people on a criminal jury the power to upset an entire national election [2000 memo at 231]. Also, the growth of government over time makes it more important not to interfere, the 2000 memo said several times [e.g., p. 247]. The Justice Department was careful to say that no President is above the law and that all Presidents are ultimately accountable [2000 memo at 236]. It also said it based its opinions, not directly on the text or history of the Constitution, but on more general considerations of constitutional structure – i.e., separation of powers. [id.] It all adds up to temporary immunity from criminal prosecution for a sitting President while in office - at least as things stand at the moment. Will Robert Mueller and what’s been called ‘his merry band of Democratic donors’ have the chutzpah to try to upset the existing constitutional order and indict the President? We are getting closer to an answer with talk of subpoenas now in the air. Executive Overreach – 7 states sue to end DACA program, setting up showdown in Supreme Court with existing case filed to continue program
https://www.washingtonpost.com/local/immigration/texas-six-other-states-sue-trump-administration-to-force-an-end-to-daca/2018/05/01/f89a5780-4d71-11e8-b725-92c89fe3ca4c_story.html?noredirect=on&utm_term=.951ff873d631 2A: Students in 40 states to Stand for the Second, walk out of class on May 2nd https://www.usatoday.com/story/news/nation-now/2018/05/01/pro-second-amendment-students-plan-school-walkouts/571445002/ 14A Equal Protection: federal appeals court upholds revised voter ID law in Texas https://www.texastribune.org/2018/04/27/5th-circuit-decision-texas-voter-id/ Patents: Supreme Court rules patent agency can revoke patents; status as Article III court not required – but keep an eye on Gorsuch campaign to rein in power of administrative state. http://www.breitbart.com/big-government/2018/04/27/supreme-court-oil-states-highlights-next-generation-of-conservatives/ Copyright: federal appeals court rules monkey lacks standing to sue for selfie copyright infringement http://www.sandiegouniontribune.com/opinion/the-conversation/sd-ninth-circuit-ruling-monkey-copyright-case-is-bananas-20180423-htmlstory.html 1A: a right to protest anonymously? Courts divided on state anti-mask laws http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-carter-georgia-masks-anonymity-protests-0430-20180427-story.html 1A: observers say California bill would impinge on speech rights of authors, speakers, and others holding traditional marriage views https://www.dailysignal.com/2018/04/23/anti-first-amendment-bill-poses-imminent-threat-in-california/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiTkdSaVltTTFaV0UyT0RZMSIsInQiOiI0MzRDWFpSdW5hQ1ZzOE13QWxmc2FDS1F6SllOdXArNGlsWjBWeTErdEd2dUtaS2o3ZFVVN1NhV0VWYzM2dTlFVTRTS2ZHQTNKY0V4MlNBTjFiTE94MFRqSTJROGlQdzJMcGg0b0c4WDJWWGpNRXlYY2lQYVQraU1HQVNTbUVtNiJ9 1A: survey shows most Americans oppose hate speech laws, political correctness. https://www.cato.org/policy-report/marchapril-2018/defending-speech-all 1A: federal judge greenlights lawsuits by conservatives against UC Berkeley for discrimination against Milo, other planned speakers https://gellerreport.com/2018/04/conservatives-can-sue-uc-berkeley-restrictions-speakers-judge-rules.html/ 1A: Tweeting that a disabled HS classmate should kill himself is not protected speech, Minnesota Court of Appeals rules https://blog.ericgoldman.org/archives/2018/04/court-affirms-stalking-and-harassment-conviction-for-tagged-tweets-in-re-ajb.htm + https://mn.gov/law-library-stat/archive/ctappub/2018/opa171161-040918.pdf 1A: series on free press continues with focus on the right extending beyond the industry/profession http://reason.com/volokh/2018/04/30/evidence-from-around-the-framing-english + http://reason.com/volokh/2018/04/27/evidence-from-around-the-framing-the-fre + http://reason.com/volokh/2018/04/26/the-nonredundant-free-press-clause 1A Religion: federal judge finds Falun Gong is a ‘religious institution’ giving it higher protection in lawsuit against anti-cult group’s assaults allegedly sponsored by China https://www.law.com/newyorklawjournal/2018/04/23/judge-sets-stage-for-falun-gongs-religious-bias-case-against-anti-cult-group/?slreturn=20180330083442 2A: federal appeals court rules medical marijuana cardholders can’t buy guns; drug use associated with irrational and unpredictable behavior http://fortune.com/2016/09/01/medical-marijuana-gun/ 2A: federal district court – “Man with 28-year-old Felony False Statement Conviction Can't Be Denied Second Amendment Rights” http://reason.com/volokh/2018/04/27/man-with-28-year-old-false-statement-con 2A: short video explains what an AR-15 is and is not https://www.facebook.com/LibertyHangout/videos/2068883676658544/UzpfSTE4ODU1NzEwMzg0MjE0MTg6MTk0MDUzNDI0MjkyNTA5Nw/ 5A Self-Incrimination: federal judge decides suspect can be compelled to decrypt devices; turning over incriminating evidence is generally not self-incrimination http://reason.com/volokh/2018/04/29/suspect-can-be-compelled-to-decrypt-devi Due Process under NJ constitution: lifetime sex offender registry requirements cannot be applied to juveniles http://sentencing.typepad.com/sentencing_law_and_policy/2018/04/new-jersey-supreme-court-finds-unconstitutional-requiring-juveniles-to-be-subject-to-lifetime-sex-of.html Equal Protection: “Judge rules New York City bar can refuse service to Trump supporter wearing MAGA hat”; political beliefs not protected under state and local discrimination laws (can this be correct under public accommodation concepts?) http://www.foxnews.com/food-drink/2018/04/25/judge-rules-new-york-city-bar-can-refuse-service-to-trump-supporter-wearing-maga-hat.html 14A Equal Protection: constitutional basis for denying felons the right to vote is in the plain language of section 2 of 14A http://reason.com/volokh/2018/04/27/why-can-felons-be-denied-the-right-to-vo 14A Equal Protection: case discusses state officials’ “unfettered discretion” and lack of standards in felon voting rights restoration scheme (discrimination on race alleged) http://media.ca11.uscourts.gov/opinions/pub/files/201811388.pdf Amendment: proposed Equal Rights Amendment front and center again, but do women really want to give up preferential treatment (e.g., affirmative action)? http://reason.com/volokh/2018/05/01/the-equal-rights-amendment-back-for-an-e Federalism v. Subsidiarity: states and cities often in tension; what is ‘local control’? http://www.libertylawsite.org/2018/04/10/subsidiarity-federalism-and-the-role-of-the-state/ “In 1976, protesters tried to burn an American flag at Dodger Stadium. Outfielder Rick Monday wasn't having any of that.” https://twitter.com/espn/status/989198174492471297?s=03 New Hampshire street renamed Ratification Way, in honor of state’s signature that made ratification of the U.S. Constitution official. http://www.concordmonitor.com/ratification-way-17001537 Constitution education group in Florida sponsors debates, awards scholarships to high schoolers http://sunshinestatenews.com/story/martin-county-nonprofit-makes-learning-about-constitution-fun-and-profitable-high-schoolers?utm_source=Constant%20Contact&utm_medium=email&utm_campaign=News%20Alerts President Trump’s Law Day proclamation celebrates nation’s heritage of liberty, justice, and equality under the law, and stresses importance of the Rule of Law https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-proclaims-may-1-2018-law-day-u-s/ An Arizona divorce case involving a gender dysphoric child led to an appellate court ruling invoking the constitutional rights to parent and engage in free speech.
The couple divorced in 2010 with both parents given joint custody of their three children. The father was given final legal decision-making authority over education and medical care for the child in question, who was born male in 2007. The mother said the boy liked to wear girl’s clothing at home and let him wear a skirt to school. The mother also sent a book to the teacher to read to the class, entitled Princess Boy. The father said he had never noticed any preference for female items in the child’s behavior and engaged a professional counselor for the boy. He asked the court to be made the boy’s primary residential parent and to limit the child’s time with the mother. After a lot of back and forth, the lower court ordered the mother to remove female-oriented toys from the home and not to dress the boy in female clothing or address him as ‘she’ or ‘her’. The mother was put under a gag order not to discuss gender issues with the boy or provide any of her three children materials about gender preference. Although the counselor made no diagnosis of gender dysphoria at first, other professionals were brought into the case who did. Meanwhile, the father alleged that the mother routinely violated the court’s orders, something the mother denied. He said, she said. The lower court ordered both parents not to discuss gender identification issues with the child and to refer all the child’s questions on the subject to the professional counselor. Neither parent was allowed to promote or discourage a particular gender identification for the child. On appeal, the higher court relied on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children” previously found under the Due Process clause of the 14th Amendment by the Supreme Court [Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion)]. The Arizona appellate court held that the lower court erred in going beyond just assigning decision-making authority to one parent. A trial court has no say in what decisions are actually made, generally speaking, and – if it disagrees with the parent’s decisions - all it can do is reallocate the decision-making authority. Therefore, the decision as to which course of therapy to follow belongs to the parent awarded decision-making authority, in this case the father. The appellate court also vacated the lower court’s order prohibiting both parents from talking about gender identification issues with the child, as a violation of the free speech rights of both parents and also the child. The appellate court said that a state statute permitting courts to restrict what is in essence ‘parenting time’ cannot be interpreted in a way that violates free speech rights. [opinion at p.19]. Long story short, the lower court’s orders violated the parents’ constitutional rights to parent and to engage in free speech. You’ll notice that the appellate court did not come down on one side of the political transgender issue or the other. It stayed away from the ultimate issues involved. Instead, the appellate court left the disposition of these matters to the parents, which is probably a good thing given how many left-wing judges there are. Let me make a couple of things clear: First, there have always been transgender people and nobody should hate them. However, I strongly object to the government deliberately trying to create more transgender people. In Fairfax County, Virginia near where I live, the public schools teach gender spectrum and gender fluidity, starting in kindergarten. That’s social engineering and it needs to be stopped. It’s just more antics of the political Left to tear down the established order so the Left can take over everything. If they can confuse you about whether you’re a boy or a girl, they can confuse you about anything, including all political questions. Remember, for the Left, the issue is never the issue. The issue is always the revolution. Articles on transgenderism from the Right commonly observe that gender dysphoric children often grow out of it – it’s just a phase they’re going through – and that to give kids drugs to start them on the road to gender reassignment surgery is nothing short of child abuse. Decisions like those from the Arizona appellate court protect the rights of parents to influence the outcome for their own children. It’s up to parents to use those rights aggressively and to stand up to the insanity that has engulfed our nation that is by design trying to turn little boys into little girls, and vice versa - all for the benefit of the radical Left that wants to fundamentally transform and ultimately enslave us all. Parents, heed the call. How America Got Its Mojo – our constitutional exceptionalism in a nutshell
http://www.constitutionnext.com/blog/american-exceptionalism-in-a-nutshell 5A,14A – federal court strikes Trump’s DACA rescission on procedural (APA) grounds; defers ruling on equal protection and due process claims https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv2325-70 Conflict of visions of national injunctions on display in sanctuary cities case – ‘narrow questions of law’ as limiting principle? http://reason.com/volokh/2018/04/20/the-seventh-circuit-splits-on-the-nation Separation of Powers – federal appeals court rules executive cannot condition grants to sanctuary cities on immigration enforcement cooperation https://www.washingtontimes.com/news/2018/apr/19/trump-loses-appeal-punish-sanctuary-cities/ 1A Religion: New Jersey school gets sued for Islamic indoctrination in violation of the First Amendment https://www.thomasmore.org/news/new-jersey-middle-school-instructs-students-islam-true-faith-thomas-law-center-files-federal-lawsuit-must-see-video/ 1A: thuggish tactics of SPLC, CAIR, Antifa, etc. imperil free speech rights of those exposing the truth about Islam – getting events cancelled, social media storms, etc. https://leohohmann.com/2018/04/13/have-us-christians-already-lost-the-right-to-publicly-speak-against-islam/ 1A: Muslim World League demands Europe ban hate speech that is protected under U.S. First Amendment http://www.breitbart.com/london/2018/04/12/islam-demands-europe-ban-religious-hate/ 1A: Trump-appointed judge, in dissent, would have found city campaign finance limit a violation of free speech http://www.breitbart.com/big-government/2018/04/20/trump-judge-pushes-for-original-meaning-of-1st-amendment/ 1A Freedom of the Press – Series explains how free press understood at the Founding, protects citizen journalists, etc. http://reason.com/volokh/2018/04/25/evidence-from-around-the-framing-the-fre + http://reason.com/volokh/2018/04/24/freedom-for-the-press-as-an-industry-or + http://reason.com/volokh/2018/04/21/do-ordinary-speakers-have-lesser-first-a 2A: Illinois is sued for banning home day-care operators from having guns in their homes http://freebeacon.com/issues/gun-rights-groups-file-suit-behalf-illinois-day-care-operators/?utm_source=Freedom+Mail&utm_campaign=47f55f78b8-EMAIL_CAMPAIGN_2018_04_19&utm_medium=email&utm_term=0_b5e6e0e9ea-47f55f78b8-45628225 2A: federal judge in Massachusetts upholds state’s AR-15 ban in flawed opinion botching history and precedent https://www.dailysignal.com/2018/04/11/bungling-judicial-precedent-federal-court-upholds-ar-15-ban/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiTURNNU5XVXhZbVF3WVRZNCIsInQiOiJxaEVEOFdHd1VyR0E0MGRNbVRYbzRDeVZnMVllSnBZVmJoUHJaVThUR29uekRuU1BiYWZaTXM3RmlmMGpkRVN0QmtMeVA3c21sQmo2SCtcL05yQTczYVBBXC9FUEhpZDRSTXZhbFJNaTNiZkVpTnh3XC9lY1JBbVJUOGE3QU9OanpyaSJ9 2A: ‘lost’ CDC study shows there are 2.46 million defensive gun uses in the U.S. each year. http://bwcentral.org/2018/04/newly-revealed-government-statistics-hidden-from-public-dismantle-liberal-gun-control-narrative/ 14A: Connecticut human rights commission directs employers not to discriminate against job applicants with dishonorable discharges https://www.theday.com/military-news/20180419/employers-directed-not-to-discriminate-based-on-military-discharge-status 14A: “ Court Rules Illegal Aliens Can Sue over “Discriminatory Employment Policy” Requiring Green Cards” https://freenorthcarolina.blogspot.com/2018/04/court-rules-illegal-aliens-can-sue-over.html 14A: Justice Department sides with Asian-Americans applicants in discrimination suit against Harvard https://www.politico.com/blogs/under-the-radar/2018/04/09/harvard-justice-affirmative-action-510570 Commerce Clause – can one state impose agricultural regulations on, or send enforcers into, other states? http://www.jeffersonpolicyjournal.com/missouri-a-g-defends-virginias-sovereign-economic-interests/?utm_source=newsletter&utm_medium=email&utm_campaign=virginias_latest_policy_news_from_jefferson_policy_journal&utm_term=2018-04-19 Deference – statistics show Chevron reduces partisan judicial decision-making, or diminished judicial independence and institutionalized judicial bias, depending on your POV http://www.libertylawsite.org/2018/04/12/chevron-deference-administrative-state-philip-hamburger/ One Person One Vote –constitutional amendment requiring ‘compact districts’ proposed as solution to gerrymandering http://www.libertylawsite.org/2018/04/23/the-compactness-solution-to-gerrymandering/ Separation of Powers – end today’s cross-delegation mess by enacting amendment cut from original Bill of Rights that no branch shall exercise powers vested in another branch https://freedomoutpost.com/the-bill-of-rights-is-missing-an-amendment/ Fringe-to-mainstream process of acceptance of new theories shows importance of free speech in science. http://quillette.com/2018/04/13/scientific-importance-free-speech/ Thomas Jefferson Says: Sure, Take Away My Statues (parody with a point) https://www.potomacteaparty.com/jefferson-statues.html J. Christian Adams and his Public Interest Legal Foundation have been sued in federal court in connection with their activities to bring the extent of noncitizen voting to light. The League of United Latin American Citizens, better known as LULAC, and four individual plaintiffs filed a complaint earlier this month in federal district court for the Eastern District of Virginia. No answer has been filed yet.
The plaintiffs allege, among other things, that the defendants’ publication of individual names as noncitizens registered to vote amounts to voter intimidation and deters those falsely accused of being noncitizens from actually voting. The plaintiffs further allege that the defendants published still more names after Virginia election officials informed Adams that his methodology was flawed. The 15th Amendment to the U.S. Constitution states that the right of citizens to vote shall not be denied by the United States or any state on account of race. The plaintiffs allege that the defendants violated a post-Civil War era civil rights statute, known as the Ku Klux Klan Act [42 U.S.C. § 1985(3)] directed at preventing anyone from depriving others of their constitutional rights, specifically the right to vote. The other counts in the complaint are based on the Voting Rights Act and defamation. The lawsuit was written up in Mother Jones and Slate. J. Christian Adams, you may recall, is the Justice Department attorney who quit in protest in 2010 after the Justice Department declined to prosecute the New Black Panther Party for voter intimidation in Philadelphia. Adams was a member of President Trump’s ill-fated voter fraud commission. The Left’s narrative on his activities is that they are part of the Right’s effort to suppress the vote, an effort championed by the bigoted Donald Trump. For his part, J. Christian Adams refers to LULAC as a “George Soros outfit” and maintains all he and his legal foundation did was reprint public records showing that thousands of noncitizens were removed from the voter rolls, including cases where the noncitizens had actually voted. Adams wrote in a mailing available on the web:
Separately this week, Kansas Secretary of State Kris Kobach was held in contempt for failing to comply with a court order requiring him to register voters who had not presented proof of citizenship, after the state’s proof-of-citizenship law was blocked by a federal court. The Kobach contempt citation and the lawsuit against J. Christian Adams are not happy bits of news, but let’s remember what’s at stake here: noncitizen voting dilutes the votes of legitimate U.S. citizens, devalues the worth of American citizenship, and constitutes an assault, not only on our nation, but on the very idea of national sovereignty itself. The alternative – a global free-for-all with open borders, which really means no borders or nations at all – would not be pretty. Noncitizen voting is worth opposing regardless of how many noncitizens register to vote or actually cast ballots, because the issue is a gateway to the diminution of national sovereignty and other mischief the Left is trying to bring about. If the destructive nihilistic Left is FOR noncitizen voting, I’m against it. I’m all for people voting, but only if they meet the qualifications. That is an excellent essay. - New Jersey Great essay! I’ll include info in our Constitution presentations! Thanks for sharing. His article is very concise. He simplified some of the words in the Declaration of Independence for those younger readers. - South Carolina The Relationship Between the
Declaration of Independence and the Constitution By Thomas Wheatley If I asked you what the most important document in American history is, you might be inclined to say the Constitution. It wouldn’t be a crazy answer, given how often the Constitution is referenced in the news, popular culture, and our political system. But what if I told you that although the Constitution is important, the document that best embodies the American spirit is the one tied to the most famous date in American history? On July 4, 1776, the Founders signed the Declaration of Independence, and in doing so, declared to Great Britain that Americans would be subject to their rule no more. Most people know at least that much; that’s why we celebrate the Fourth of July. But the Declaration of Independence is more than just a statement of national liberation. It’s the clearest, most salient expression of America’s very soul. Consider the Declaration’s most famous passage: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Let’s break that down. “We hold these truths to be self-evident, that all men are created equal. That they are endowed by their Creator with certain unalienable Rights.” This is a powerful observation based on something called “natural law.” “Natural law” is something distinct from written, or “positive” law. Think of it this way: You don’t get your sense of right and wrong from the laws enacted by our government. Instead, there are absolute moral truths you follow that are so obvious they are said to be “self-evident.” For example, you don’t need Congress to pass a law to know that murder and stealing are wrong. Now what about “all men are created equal”? Although this language has been subject to much self-serving distortion over the years, its meaning is fairly straightforward. Because every person is bound to follow one overriding moral code, no person—man or woman—may justly establish superiority over another. This is why as Americans, we reject the notion of a King or Queen—no person has the requisite superiority to hold such a position. Recall I said that all people are “bound” to follow one moral code. You might ask, bound by whom? The Declaration’s text immediately provides an answer: God. “Endowed by their Creator with certain unalienable rights,” means we receive our rights under natural law—and our obligation to follow them—from a higher power. Moreover, because these rights come from our Creator, and because all people are equally subordinate to their Creator, our rights are “unalienable,” meaning no person may deprive another—or even themselves—of those rights (unless it’s to vindicate or defend their rights against intrusion, but that’s a topic for another day). By the way, just because the Declaration refers to a “Creator” doesn’t mean it requires adherence to any one faith, or indeed to any faith at all. Instead, it just requires acceptance of the idea that rights do not come from the government or any man-made law, but from a higher power. Although most of the Founders were religious, the theory of natural law has a long history going back to ancient Greece. Indeed, some theorists believed that natural rights came from Nature, not God. The point is, America is an exceptional country because we proceed on the basis that we are all born with preexisting rights that our government can’t take away from us, whether we’re religious or not. Moving on, next there’s “that among these [rights] are life, liberty, and the pursuit of happiness.” When Thomas Jefferson wrote the Declaration of Independence, many of his thoughts were not original. Here, Jefferson borrowed from the political philosopher John Locke, who listed “life, liberty, and estate” as the trinity of freedom. Also important is the phrase “among these.” The unalienable rights Jefferson names are only a few examples, not an exhaustive list. Now what about the Constitution? That’s covered by the last phrase I mentioned: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The Constitution puts the ideas of the Declaration of Independence into practice; it is the roadmap by which our government “secures” our rights. And where does government get its power? From the consent of the governed—the people. It’s important not to miss how the flow of power is structured when each document is examined in its proper context: God (or Nature) endows the people with rights, and the people create a government to secure those rights against infringement by others. In other words, God (or Nature) has power over We the People, and We the People have power over the government. So there you have it. The Constitution, although vastly important, is not the source of American exceptionalism. Instead, the Constitution serves to effectuate the principles outlined in the Declaration of Independence, principles for which our Founders pledged their lives, their fortunes, and their sacred honor to uphold. ________________________________ Thomas Wheatley is an attorney and writer living in Arlington, Virginia. He is a contributor to The Hill, the Washington Post, and other major publications. He was a 2016 Publius Fellow at the Claremont Institute. Follow him on Twitter @TNWheatley. |
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