Stay Tuned

The Democrats in Congress seem intent on rewriting the Constitution and rewriting precedent on how things are supposed to be done. The latest rewrite involves the comment by Speaker of the House Nancy Pelosi that she will delay forwarding articles of impeachment to the Senate until she is convinced that the Senate trial will be fair. That is an amazing statement given the total unfairness of the trial in the House of Representatives, but it also goes against precedent. I am not a lawyer, but one lawyer who graduated from Harvard Law School has weighed in on what may happen next.

Yesterday Breitbart posted an article written by Joel B. Pollak about the legal aspect of what Speaker Pelosi is doing.

The article reports:

Speaker of the House Nancy Pelosi (D-CA) appears to be considering an idea Democrats have floated for several days of holding back the articles of impeachment to exercise leverage over the Senate and the president.

She declined formally to transmit the articles to the Senate on Wednesday evening after the House voted to impeach President Donald Trump.

Unfortunately for them, the Senate can act, regardless — and would vote to acquit.

That’s because the Constitution is absolutely clear about the Senate’s authority. Article I, Section 3 says: “The Senate shall have the sole Power to try all Impeachments.”

That is all.

The Chief Justice presides over a trial involving the president, but the Senate makes the rules. And the Senate is controlled by Majority Leader Mitch McConnell (R-KY), who regards what the House has done with contempt.

You’re in Cocaine Mitch’s court, now.

Politico outlined Democrats’ new idea, citing constitutional lawyer Laurence Tribe (but, interestingly, not the Constitution itself). Pelosi hopes to pressure McConnell into holding a “fair trial” — this, after she and her party broke every relevant House rule and precedent, and several Amendments in the Bill of Rights, all in the name of their “sole Power of Impeachment.”

They forget that a “fair trial” applies to the accused, not the accuser, and has since 1215.

The article notes the contradiction between what Speaker Pelosi is doing now and previous statements by House of Representatives regarding impeachment.

The article concludes:

If Pelosi refuses to submit the articles of impeachment to the Senate, McConnell can convene the Senate anyway, summon the Chief Justice, and swear in the Senators as jurors. Democrats can boycott, but they can’t stop the trial.

McConnell can then propose to dismiss the charges or even hold a vote to acquit the president.

Pelosi can hide the articles of impeachment in Adam Schiff’s basement forever, and it won’t make a bit of difference.

Stay tuned. This entire process has turned the Constitution on its head–from the rights of the accused, to vague articles of impeachment, to ignoring precedents involved in impeachment.

Today At The Supreme Court

Today the Supreme Court will hear arguments about DACA (Deferred Action for Childhood Arrivals). It is interesting that the case has taken so long to get to the Supreme Court.

In September 2017, the Heritage Foundation reminded us of the following statement by former President Obama:

Responding in October 2010 to demands that he implement immigration reforms unilaterally, Obama declared, “I am not king. I can’t do these things just by myself.” In March 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” In May 2011, he acknowledged that he couldn’t “just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.”

I guess he changed his mind. Also, just for the record, former President Obama was supposed to be a Constitutional Law Professor. We are not a democracy–we are a representative republic. Did he know that?

At any rate, DACA is now at the Supreme Court. Yesterday John Hinderaker at Power Line Blog posted an article about the coming hearings.

The article notes:

The long-running battle over the Trump administration’s bid to end the Obama-era program for young undocumented immigrants known as “Dreamers” will land before the Supreme Court on Tuesday.
***
“The administration has basically chalked up the fact that they are going to lose a lot of these cases in the lower courts,” said Thomas Dupree, a former top Bush Justice Department official and now an appellate attorney.

“But they’re playing the long game. I think that there are those in the White House and the Justice Department who have made a calculation saying, ‘Look we can absorb all these losses in the lower courts because we are going to win the endgame when this case gets into the Supreme Court.’”

It remains to be seen how the court will rule, however, on this complicated issue — which concerns the limits of one president trying to rescind the policies of his predecessor.

The article concludes:

I haven’t studied the briefs so as to be up to speed on the technical arguments that will be presented to the Court tomorrow. But at the end of the day, it is hard to see how the courts can hold that the president is legally barred from carrying out his constitutional duty to see that the laws–including the immigration laws–are faithfully executed.

Stay tuned.

Some Disturbing Thoughts On The Jeffrey Epstein Case

Yesterday Andrew McCarthy posted an article at The National Review about the Jeffrey Epstein case. Andrew McCarthy is the former Chief Assistant United States Attorney in the Southern District of New York who led the terrorism prosecution against the “Blind Sheikh” (Omar Abdel Rahman) and eleven other jihadists for conducting a war of urban terrorism against the United States that included the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. He served as a prosecutor for 20 years. He has testified before Congress as an expert on issues of constitutional law, counterterrorism, and law-enforcement.

Below are some of his observations about the case against Jeffrey Epstein:

On Monday, Geoffrey Berman, the U.S. attorney for the Southern District of New York, announced that his office has now charged Epstein. While the SDNY indictment may be new, Epstein’s crimes are not. They are the same offenses from which Acosta agreed to spare Epstein from federal prosecution if he pled guilty to state prostitution charges — which Epstein proceeded to do, in reliance on Acosta’s commitment. There is thus a very good chance, based on the Constitution’s guarantee against double jeopardy, that the SDNY case against Epstein will be voided by the SD-Florida non-prosecution agreement (non-pros).

To be sure, the SDNY has a counterargument, and it will be vigorously made. It has two components. First, there is language in the non-pros that appears to limit the agreement to SD-Florida, to wit: “prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida” (emphasis added). Here, “deferred” effectively means forfeited — the same effect for double-jeopardy purposes as a conviction or acquittal — because of Epstein’s compliance with the requirement that he plead guilty in the state case. Second, there is jurisprudence in the Second Circuit (which controls in the SDNY) holding that one federal district’s agreement does not bind another.

Therefore, prosecutors will argue that the 2007 SD-Florida non-pros does not bar a 2019 SDNY indictment arising out of the same conduct and charging the same offenses.

I’m skeptical . . . and I think the SDNY is, too, notwithstanding the brave face prosecutors put on this week. They have carefully drafted an indictment far narrower than the SD-Florida’s contemplated case. If prosecutors really believed that there was no double-jeopardy problem, they’d have no such hesitation: They’d throw everything the FBI ever had at this sociopath. They know they are on thin ice.

Mr. McCarthy’s evaluation of the situation is not encouraging. I hope he is wrong, but his history and knowledge suggest he is probably right.

Please read the entire article to see the full argument. It would be a shame if this sleazeball escaped justice twice. I know he is innocent until proven guilty, but he has already been proven guilty–he just didn’t have to pay any real price for his horrific behavior.

 

Who Were Those Women?

Most of us have seen the video of Senator Jeff Flake accosted in the elevator before the Senate Judiciary Committee vote to move the Kavanaugh nomination out of committee. Many of us have little doubt that it was staged. If nothing else, it provided cover for the actions of the spineless Senator.

Yesterday John Fund posted an article at the National Review which sheds some light on exactly what happened. Mr. Fund notes that the two women had to get past reporters and security officers in order to block a senators-only elevator in the U.S. Capitol. That should cause some concern about the safety of our legislators. Considering the 3017 attack on Republicans while they were playing softball, I would think the security at the Capitol would be better.

Let’s take a look at who those two women are. The article reports:

Ana Maria Archila and Maggie Gallagher were the two women who confronted Flake inside the elevator to express, as the New York Times put it, “a rising anger among many who feel that, too often, women’s voices are silenced and their pain ignored.”

Perhaps because the women expressed such raw emotion, few media outlets dug into their political activism. Archila is an executive director of the Center for Popular Democracy; she had spent the previous week in Washington engaged in protests against Kavanaugh. Gallagher is a 23-year-old activist with the group. The Center is a left-wing group that is heavily funded by George Soros’s Open Society Foundations. Indeed, as of 2014, the Open Society was one of the three largest donors to the group.

…Archila has another role beyond her duties as co–executive director of the Center. She is also a member of the national committee of the Working Families Party (WFP), a New York–based fringe political party that exercises outside influence in the Empire State because of the state’s unique law allowing candidates to run on more than one party line.

…The WFP was founded in 1998 by the leaders of ACORN, the now disbanded and disgraced group of community organizers for whom Barack Obama served as a lawyer, in Chicago in the 1990s.

The article concludes:

I have no doubt that the vast majority of protesters who want to stop Brett Kavanaugh are sincere and are merely exercising their constitutional rights. But imagine if two women had cornered a Democratic senator in an elevator and demanded an investigation of who had leaked to the media Christine Blasey Ford’s letter alleging that Kavanaugh had sexually assaulted her. (Senator Lindsey Graham said today that he planned to investigate the leak.) There would have been sputtering outrage in media circles, and reporters would have breathlessly hunted down any ties between the women and outside groups.

It’s a sign of media bias that the people from the well-funded groups behind the anti-Kavanaugh protests are described merely as “activists” and that their political motives and origins are largely unexplored.

The fact that these fringe-left groups are fighting so hard to stop Judge Kavanaugh convinces me that he needs to be confirmed. He represents a return to Constitutional Law that the political left does not want. He summed up his views when he reminded Congress that it was their job to make laws–not the Supreme Court’s. It is time to get back to the Representative Republic our Founding Fathers designed.

A Different Take On The Constitutionality Of ObamaCare

The Daily Caller posted an article today about changes made to ObamaCare by Congress. The article reminds us that in 2017, the Republican-majority Congress did not have the votes to repeal the ACA, but did set the individual mandate penalty at zero. They didn’t repeal it, but they took the teeth out of it.

The article then reminds of the Supreme Court’s decision on ObamaCare:

In 2012, the five conservative justices on the United States Supreme Court (including Chief justice John Roberts) held that key portions of the Affordable Care Act (ACA) exceeded Congress’s constitutional authority under the Commerce Clause. But, Chief Justice Roberts then joined the four liberal justices on the Court in upholding the ACA as a tax under Congress’s taxing power because it generated revenue for the federal government.

The question then becomes, “If ObamaCare is no longer generating revenue, is it still a tax?’ If it is no longer a tax, does it still fall under the Commerce Clause?”

The article states:

A recent op-ed at The Federalist claims that striking down the ACA would be “judicial activism.” The article doesn’t defend the ACA as constitutional, but argues that conservatives shouldn’t ask “unelected judges to do what elected members of Congress took great pains to avoid.”

Such a broad view of “judicial activism” would render virtually any judicial review out of bounds. More importantly, it is contrary to the very system of checks and balances set up by the Founders in the Constitution. There is no Constitutional duty to persuade a majority of Congress to stop violating the Constitution—that’s what makes it a written constitution in the first place.

The article concludes:

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function — i.e., when a court writes laws instead of saying what the law is. But asking courts to carve out the unconstitutional provisions from laws is exactly that. Advocating for severability asks the judicial branch to judge the law Congress should have written, not the one it did. A more restrained approach would be to strike down the whole law and let Congress decide whether it wants to pass the law again without the unconstitutional provisions included.

An old saying goes something like: “When you mix a cup of sewage in a barrel of wine, you end up with a barrel of sewage and have to throw the whole thing out.” To extend the metaphor, courts shouldn’t be in the business of sifting through a law to pick the sewage out of the wine, they should throw the whole thing out. Striking down unconstitutional laws is not judicial activism, and it is well within the role of the judiciary to strike the entire ACA as such.

It is definitely time to get rid of the barrel of sewage!

Do We Want The Federal Government Telling Us Where We Can Live?

Local governments have traditionally been in charge of local zoning. Local governments are obviously closest to zoning issues, and having zoning issues resolved at the local level allows the local citizens to have a voice in zoning decisions. There is nothing in the U.S. Constitution that gives the federal government any control of zoning. However, right now we have a President who does not seem to have read the U.S. Constitution. President Obama wants to tell all of us where we can live.

The National Review posted an article today about President Obama’s new rule:

Safely past the hurdles of re-election and the mid-terms, President Obama has plenty of time and scope left to continue his transformative ways. Obama’s sweeping new rule, “Affirmatively Furthering Fair Housing” (AFFH), is up next. AFFH would override local zoning authority and expand federal control over where and how Americans live. Because of its sweeping impact and the fact that potential Clinton Vice-Presidential running mate, HUD Secretary Julian Castro, will be in charge of implementation, this issue has the potential to shift the terrain of the presidential race as well.

…Contrary to its title, AFFH isn’t about blocking housing discrimination. That is already illegal, and former HUD Secretary Shaun Donovan acknowledged that AFFH is not about stopping housing discrimination, but instead about changing the way Americans live. AFFH will force every municipality that takes federal housing money to take a detailed survey of where its citizens live, by income, race, ethnicity, etc. If the mixture is not to the federal government’s liking, changes would have to be made at local expense. In effect, this would strip local governments of their zoning power.

The Republicans in Congress need to stop this power grab in its tracks. There have been a lot of talk about gerrymandering and the impact it has on elections. Gerrymandering will seem like a walk in the park when voters are told where they can live and where they can’t live.

There is an additional article from August 2013 on the government’s plan to take over local zoning at the National Review. This plan looks a lot like Agenda 21. For those of you not familiar with Agenda 21, it is a sustainable development plan developed by the United Nations at a meeting in Brazil in 1992. Basically it means the end of single-family homes and the concept of private property. It also has a very negative impact on American sovereignty.