Separation of Powers - federal judge Oregon blocks Trump administration rule requiring immigrants to show proof of health insurance before being allowed to enter the country; Congress did not delegate such power, judge rules
First Amendment issues likely to propel David Daleiden’s Planned Parenthood undercover sting video case to the Supreme Court
1A Conscience: “California Supreme Court: Catholics Must Insure Abortions on Demand Because They Are ‘Medically Necessary’”
Equal Protection, etc. - Utah woman charged with lewdness for going topless in front of her children in her own home; husband “similarly clad” but not charged
1A: law professor’s video series on free speech continues with the rules pertaining to government property
Shame on the grandiose FBI employees who exchanged messages about how they had ‘never liked the Republic’ and had ‘initiated its destruction.’ Shame on you - the Republic gave you your salary - GIVE IT BACK! I’ll take the Republic over you juvenile impudent putzes any day.
Kudos to everyone who made noise - “GVSU student government reinstates Pledge of Allegiance after backlash from students, parents, donors”
Article II Executive Power Under Assault
Earlier this month, Attorney General William Barr gave a thoughtful and important speech on the nature of the executive power and the separation of powers under the Constitution. He opened by saying the Democrats’ unrelenting resistance to the legitimacy of the Trump presidency undermines the Rule of Law. But he mostly talked about how the legislative and judicial branches have improperly chipped away at the power of the executive branch in recent decades.
The current Congress has abused its advice and consent power by opposing every single one of Trump’s appointments. There have been 236 cloture votes so far to unblock Trump’s nominees, compared to just 17 in all of Obama’s presidency. Congress has also abused its oversight role, unleashing an avalanche of subpoenas to incapacitate the executive branch. There was a time when Congress respected the executive’s need to hold confidential internal discussions, but Congress now calls assertions of executive privilege obstruction of justice subject to congressional contempt.
The judiciary has also encroached on the Trump presidency by setting itself up as the ultimate arbiter of separation of powers questions between the legislative and the executive, instead of leaving such questions to the political process. Judges have also usurped presidential authority by expanding the scope of judicial review and substituting their own judgment in place of the executive’s in foreign policy and national security matters like the travel ban. Finally, federal district judges have stymied the executive like never before with nationwide injunctions. There have been 40 since Trump was elected, compared to just two in the first two years of Obama’s presidency.
Bottom line, Barr said, is the Left is “engaged in the systematic shredding of norms and the undermining of the Rule of Law.”
The Founders carefully calibrated the executive power and intended for the executive to be independent, not subordinate to Congress. They drew up a Constitution with three co-equal branches and an executive strong and decisive enough to deal with national emergencies and the prosecution of war. They saw how the Articles of Confederation’s deficiencies in this regard almost caused us to lose the Revolutionary War. They put the Article II executive power in the hands of a single person, not a deliberative council. This is called the “unitary executive” and, while the Left may consider it merely a theory, it is nothing more than exactly what the Constitution says.
There is more - a lot more - in Barr’s speech and I commend it to you in its entirety. It’s well worth your time.
[Prepared Text] [Video]
It’s now legal to carry a handgun without a permit in Oklahoma. The law passed in February and took effect November 1st after court challenges failed. Most Oklahomans 21 and over can now carry firearms - concealed or openly - without a background check or training. There are exceptions for illegal aliens and certain criminal convictions, as well as for public buildings, bars, sporting events, and other venues.
Twenty states have some form of constitutional carry. Constitutional carry was the law in all states until the 19th century. The situation reversed by the 20th century when all states, except Vermont, passed concealed carry bans and most states required citizens to get a permit. For this reason, permitless carry is sometimes called ‘Vermont carry’.
It’s no accident that Vermont is the safest state in the country in terms of violent crime statistics. Funny how that works. But don’t expect facts and logic to make a dent on the Left.
It would be better to call it ‘natural rights carry’. If you have to ask permission or get government approval, it’s not really a right, is it? Carry without a permit makes perfect sense when viewed through the lens of natural rights. Rights are not something the government gives you. As an American, you are born with unalienable rights, just like the Declaration of Independence says. Some say these rights come from nature, and call them ‘natural rights’. Others say they come from God, and call them ‘God-given rights’. The point is, YOUR RIGHTS DON’T COME FROM GOVERNMENT, or even the Constitution.
To those who find it strange that U.S. citizens should not have to ask government for permission to own a gun, I ask is it any more strange than free speech or freedom from search and seizure without a warrant based on probable cause? I’ll tell you what would be strange - having to get a license from the government before exercising any of your free speech rights, or paying government a fee to be free from unreasonable search and seizure. THAT would be strange.
Four more states are considering permitless carry. Good! We could use a little more natural rights theory around here. And a little less authoritarianism from the Left, okay Beto? Then I wouldn’t feel like such a target when I have to go to the DMV, a gun-free zone here in my state of Virginia.
8A Cruel and Unusual - federal judge halts federal executions; DOJ had mandated certain lethal injection but federal statute requires feds follow state method
1A: ACLU sues Trump administration for detaining and interrogating journalists at the southern border about caravans
Separation of Powers: Supreme Court temporarily blocks release of Trump tax returns to Congress pending further argument
Supremacy Clause - Trump asks Supreme Court in tax return case to recognize his “absolute immunity” from state prosecution and investigation while he is in office
Due Process, Equal Protection: federal judge rules no-fly list does not offend right to travel or constitute intentional discrimination against Muslims
1A: third federal judge rules against Trump administration healthcare provider conscience protection rules
Discrimination: affirmative action referendum goes down in flames in Washington state; would have allowed the use of minority status as a factor in public education and hiring
2A: another Virginia county joins stampede to set up gun sanctuary jurisdictions in preemptive strike against far-left Governor Northam and incoming Democratic majority
1A Religion: far-left Michigan Attorney General loses in court again in gay adoption case; court finds her hostile to religion
Executive Power: William Barr speech says Democrat unrelenting resistance to legitimacy of Trump presidency undermines the rule of law; extols theory of ‘unitary executive’ whereby all executive power is invested in the President
Impeachment Raising Constitutional Issues - Sixth Amendment right to counsel for the President? Secret ballot for Senate impeachment trial?
2A: Supreme Court turns away Remington’s appeal to block product liability suit arising from Sandy Hook massacre; further proceedings to turn on whether the gun maker marketed the product for assaults against humans
1A: just because the Janus decision says you can’t be forced to pay union dues doesn’t mean you get to claw back what you paid the union in the past; unions relied in good faith on legal precedent when they collected the fees (7th Circuit)
1A: state cannot require someone to register as a lobbyist to speak to legislators where “no one pays him and his activities do not involve spending money” (8th Circuit)
1A: Kansas enters consent judgment agreeing that statute forbidding the advertising of raw milk violates free speech
1A: Authoritarian Obama State Department official trashes free speech, calls for hate speech laws to prohibit burning the Quran. So, you can burn the flag but not the Quran - glad we got that settled.
1A: “If government is the arbiter of what is acceptable speech, you are on the road to a dystopian nightmare.”
2A: AR-15 perfect for women for home defense, female gun owners say
4A: federal judge rules indiscriminate search and seizure of smartphones and laptops of travelers at U.S. borders violates Fourth Amendment
4A: no expectation of privacy in unauthorized use of neighbor’s home network; child pornography conviction stands
Electoral College: ‘Save Our States’ group building support for the electoral college
Electoral College: “‘Popular Vote’ Movement Would Shift Power to Big Cities, Experts Warn”
‘A’ for Effort - man dies, is revived, claims he has served his life sentence
In February, I told you about a Supreme Court case where the state of Indiana moved for the civil asset forfeiture of a drug dealer’s $42,000 Land Rover SUV. The drug dealer bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The $42,000 purchase price was roughly four times the maximum allowable fine for the offense. The Supreme Court found the forfeiture disproportionate to the crime and sent the case back to the Indiana Supreme Court to reconsider the matter in light of the 8th Amendment’s prohibition against excessive fines. The Supreme Court applied the Excessive Fines Clause to the states for the very first time in this case through the Due Process clause of the 14th Amendment.
At the end of October, the Indiana Supreme Court rejected the prosecution’s argument that any property used in a crime is subject to seizure. Instead, the court ruled a number of factors must be taken into account in deciding whether a forfeiture is ‘excessive’ within the meaning of the 8th Amendment. The factors include the owner’s guilt and the extent of the misconduct, but also the owner’s financial circumstances. The court wrote it would be fictitious to believe that “taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.” The case now goes back to the trial court for a final determination, after applying the new standard to the facts at hand. The trial court had originally ruled in the drug dealer’s favor in 2015 and ordered the SUV returned to him.
This case is not the end of the civil asset forfeiture issue. Several legislative reforms have been proposed to curb civil asset forfeiture abuse. These reforms include:
Takings Clause does not apply to the destruction of a house in a police operation (Constitution news round-up)
1A: seventh in video series explains free speech rights at college
5A: Takings Clause does not apply to the destruction of a house in a police operation (10th Circuit)
Spending Clause: federal judge in NY strikes down Trump healthcare conscience rights rule
5A, Equal Protection: federal judge temporarily blocks immigrant health insurance rule as affront to Due Process and evincing ‘national-origin bias’
10A: Trump administration loses another sanctuary city case for attempting to impose new conditions on federal grant money
5A Due Process: Supreme Court mulling whether lawful permanent residents can be deported for criminal acts
2A: Hundreds of Second Amendment gun rights advocates rally on Capitol Hill
State Constitutions: Pennsylvania judge throws out Pittsburgh gun control ordinances because state law preempts local measures
1A: U of Michigan concedes defeat, disbands speech police
1A: Laura Loomer free speech case against Apple, Google, Facebook, and Twitter to go to trial
1A: ‘outdated’ First Amendment under attack; push is on for hate speech laws
2A: “Debunking the Myth of ‘Concealed-Carry Killers’”
2A: Pregnant woman in Florida uses AR-15 to fend off two home intruders who were attacking her husband and daughter
2A: Quiet - Gun Grabbers at Work! Florida police use pawnshop data to create illegal gun owners’ list
2A: Active shooter drills train future school shooters how to increase casualties; data suggests other ways to mitigate school shooting problem
4A: search and seizure issue not reached in case where court approved an executive branch team to review privileged attorney-client documents seized from law firm
4A: court ruling may open up consumer DNA sites to law enforcement
8A: Indiana Supreme Court reins in civil asset forfeiture under Excessive Fines clause
8A: article discusses reforms to civil asset forfeiture including the restoration of the presumption of innocence, channeling seized monies to general fund, outright abolition, etc.
Copyright: Supreme Court hears case testing whether copyright holders can sue states for infringement or state immunity bars such claims
Symposium finds Constitution under threat from the administrative state and the Left’s assault on civil liberties
Holocaust restitution experience shows slavery reparations would be difficult and divisive to enact
New documentary - “Clarence Thomas in His Own Words” in theaters next February
A new documentary about Supreme Court Justice Clarence Thomas will be in theaters next February and broadcast on PBS in May. “Created Equal - Clarence Thomas in His Own Words” is the name of the film in which Thomas tells his life story looking directly at the camera.
Thomas was born into grinding poverty in a Gullah-speaking part of Georgia. He went to Catholic school and entered the seminary to become a priest. He left after becoming disillusioned with what he considered to be the Catholic Church’s lack of support for civil rights. At this point in his life, he was a radical Black Power leftist, angry at everything and everybody. But, over time, he came to view affirmative action as condescending and busing as divisive and ineffective.
His transformation complete, he went to work in the Reagan administration then was appointed to the D.C. Circuit Court of Appeals. He was nominated for the high court in 1991. Who could forget the pitched battle at his confirmation hearings and Anita Hill’s shocking allegations that Thomas had sexually harassed her? After relentless brow-beating, Thomas accused Democratic senators at the hearing of conducting “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.” Most of the public did not believe Anita Hill and Thomas was confirmed.
Justice Thomas has served on the Supreme Court ever since where he is known as an originalist and a reliable conservative vote. He believes judges should interpret the law, not make it up.
The trailer for the new documentary is online. If you can’t wait for the movie, you might try his memoir My Grandfather’s Son which hit number one on the New York Times bestsellers list in 2007.
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