Despite Cost and Blunders, GOP should stand firm on Scalia Replacement

In the aftermath of Justice Antonin Scalia’s passing, it can feel a bit crass discussing the political fallout; after all, he was a husband, father, and grand-father whose family is in mourning. However given the current balance of the court and titanic influence he leaves on legal thinking, the fact is we are entering one of most significant political battles in years, and while Senate Republicans have already made a tactical blunder, they must hold firm.

Whether you agree with his jurisprudence or not, it is indisputable that Scalia leaves behind a tremendous legal legacy. In 30 years on the court, he re-energized the textualist movement with harsh, impeccably worded dissents, groundbreaking majority opinions (ie Heller), and the occasional surprise (ie Emp Div HR OR v. Smith). Scalia is the father of much conservative legal thought, which makes the fight over his successor all the fiercer. On top of this, the Court now has 4 liberals and 4 conservatives (3 if you count Kennedy as a centrist). This means that the cases in which the Conservative wing would have prevailed 5-4 are now deadlocked 4-4. A liberal Obama Justice could feasibly swing the court to the left for years, guaranteeing the stability of Roe while endangering recent precedent on campaign finance, gun rights, and more.

Given the stakes, Senate Republicans must be very careful in how they proceed. Scalia’s death comes at an odd time. Had a vacancy arisen 5 months ago, the “lame duck” argument would be very weak, and the Senate would have been compelled to confirm a qualified nominee (elections do have consequences). If a vacancy had arisen 6 months from now, the decision not to act on a nomine would be on exceedingly firm ground as Obama would be a truly lame duck with an election right around the corner. Now, the timing of 9 months prior to the election gives credence to both arguments on whether to act or not (Kennedy in 1988 provides precedent to act while Fortas in 1968 is precedent not to act). Ultimately, this is really a new situation, unless you deem how congresses acted 50, 80, or 150 years ago to be very relevant to the present day.

With the court so evenly split, the GOP should likely delay, but the politics are bad. Republicans have only worsened the situation as well. On Saturday, Majority Leader Mitch McConnell said, “this vacancy should not be filled until we have a new president.” The Senate will not move on an Obama nominee, and the GOP almost certainly has the votes to sustain any filibuster. With 54 seats, they would have to suffer 14 defections, which is almost unthinkable, especially with vulnerable Senators up for re-election like Pat Toomey and Kelly Ayotte currently backing McConnell’s position. While the GOP should delay this until the next President, the way they are going about it is a mistake.

Republicans should have waited for Obama to formally nominate someone and then found specific reasons to oppose that candidate. Now, any specific criticisms can more easily be written off as an after the fact rationale from a bunch of obstructionists. Announcing opposition now is akin to shooting first, asking questions later. It is almost certain that the Obama nominee (whether it be Loretta Lynch, Sri Srinivasan, or someone else) will have enough flaws to justify delaying confirmation until the next President, and under the miniscule chance Obama makes a consensus choice, that nominee would deserve a fair hearing. In an effort to appease the Ted Cruz kamikaze wing of the party, McConnell has made it easier for democrats to label republicans as obstructionists and sway independents in the 2016 election.

In all likelihood, this political fight will have a limited impact on the 2016 election, but if anything, it hurts republicans. That said it can be worth losing political points when waging an important fight. The fact is few voters ever cite the nomination of Supreme Court justices as their most important issue (even though this power is one of the President’s greatest), and that is unlikely to change. It is hard to imagine more than 10% of Americans seeing this as their top issue, and such voters are likely high propensity, partisan ones. This is to say that they likely vote anyway and are not persuadable. On the margin, some democrat and some republican voters may be more energized, but they would have voted anyway. Scalia’s death may energize some voters, but it won’t swing the outcome in any meaningful way. However, this fight will make it easier for democrats to make the obstructionist argument (particularly if Ted Cruz become the nominee), which on the margins could swing some independents to the democrats. The Supreme Court does not work as a stand-alone issue to sway independents, but it can be used as part of a broader narrative against republicans. In particular, if Ayotte, Toomey, and Johnson get weak-kneed, that is a sign the political cost of this fight is growing.

Obama has every right to nominate someone, and the GOP should hold hearings for that nominee. However, there should not be hesitation to oppose him or her and keep that person off the bench given the high stakes of this vote in a divided court. The GOP should’ve waited for the nomination announcement to come out in opposition to avoid the “blind obstructionist” label, but that is water under the bridge at this point. With the Supreme Court in the balance, this is a fight worth having, even if there is a slight political price to be paid.

Justice Scalia’s guiding philosophy was driven by the goal of making the text of the law pre-eminent so that who the presiding Jude is does not matter. It is a sad twist of irony then how much of a fight there will be over who succeeds him. Equally, one is left to question the fragility of our republic that the death of one Judge can have such earth-shattering (partisans might say cataclysmic or bountiful) consequences.

 

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The State of the Union: Strong But Unsatisfactory

Later today, President Barack Obama will deliver his final State of the Union Address, filled with the typical pomp and circumstance. Following the pattern of virtually every speech given by each of his predecessors in the Modern Era, Obama will declare the State of our Union is “strong” or something to that effect. Democrats certainly will hope voters feel exactly that way in November as they try to retain the White House for a third straight term, a feat they have not accomplished since President Truman. However, the leading Republican candidate, Donald Trump, has a campaign slogan (Make America Great Again) that could be taken to imply the state of our union is not strong.

So cutting through the partisan spin; what really is the state of the union? I would argue it is strong but unsatisfactory. The fact is that America is the best positioned nation in the world, but there is still much work to be done. In this sense, both sides have valid points to be made; our situation is not necessarily as dire as republicans campaigning suggest while there are greater risks to our future than the President has conceded.

To be frank, the fact we are strong is not really an accomplishment for the President. While we were in deep recession in 2009 when Obama assumed Office, America was still the strongest nation on earth. While our banking system had been crippled by the Housing Crisis and Lehman failure, requiring the Bush Administration to launch widespread bailouts to avert Depression, the worst of the financial crisis had passed by January 20, 2009, and depression was off the table. America was still the center of innovation with the best technology firms in the world residing here, mainly in California. We were the clear global hegemon economically and militarily.

Today, I would argue that last sentence still rings true. Yes, GDP growth has been undeniably sluggish, but our economy is far larger than any other, and it adds far more value than export-driven China, which has run into significant problems of its own of late. The official unemployment rate is down to 5%, and even if we adjust for some of the cyclical weakness in the labor force participant rate, unemployment would be 6.5-7%, which is neither great nor horrible. Yes, China is saber-rattling in the South China Sea, and Putin has caused problems in Syria and Eastern Europe, but our military and naval wherewithal is without rival.

China’s military might is entirely regional, and Putin lacks the economic power to exert influence much beyond his own borders and Syria. Given his nuclear arsenal, we cannot force him to do anything, but he can’t force other nations to do much either. He and China are undoubtedly challenging the U.S. Security Order with limited successes, but the fact remains, there is nary a region in the world where we are not a key (if not the key) player. America is the lone indispensable nation on the face of the earth. The setbacks and loss of influence in the Middle East, parts of Eastern Europe, and select spots in South Asia are not markers of inevitable decline but rather missteps quickly reversible under new, more assertive American leadership.

Consider the following questions. Is there a nation you would rather be today than the United States? Would you trade America’s future for that of another nation? Is there a more dynamic economy on earth? Would you swap our military power for that of another country? Is there a nation where you can enjoy more political freedoms or economic potential than here?

Chances are you would answer “no” to all (or at least most) of those questions. How then, can one say the state of our union is anything but strong? Again, the same was true in 2008, and it is a testament to just how well positioned America is and how dynamic the American people are that these statements are almost taken as a given. Being “strong” is really not an accomplishment of the President; the accomplishment is not torpedoing that strength, something almost no President could manage to do. That is why the American people rightly demand more than a strong state of the union.

Now, Obama has some indisputable accomplishments. The economy is stronger than in 2008, but it is not strong enough. GDP growth of around 2-2.5% has been positive but not spectacular. Real median income is lower than in 2000; the typical worker has not felt this recovery. This has been a problem for 15 years and is a serious challenge neither party has done a good job of addressing. We need to make structural reforms, restructure our tax code, and improve education to build a stronger economy from the bottom-up to grease the tracks of upward mobility. A poverty rate of 15% continues to be a stain on this country, and our programs need to focus more on lifting people from poverty rather than simply making poverty more comfortable. We need to reform, and yes cut, entitlements like Medicare and Social Security to ensure they will be solvent for those of us who really need them in our later years. Is our economy strong? Yes. Satisfactory? No.

Beyond economics, we have unsatisfactory progress in other areas. Race relations are not where they should be, and in too many communities, police-community (particularly in black precincts) relations are not where they should be. Many parties (from a media that generalizes every story to bad cops to self-aggrandizing community leaders) share the blame, but we need to take steps in local communities to rebuild trust. Gun violence is too high, and this nation does not handle mental illness as well as it could. There are no easy answers, and the gun issue is too often politicized. The scourge of violence is real though. Is our culture strong? Yes. Satisfactory? No.

In foreign affairs, we do not have a clear strategy to permanently roll back ISIS from Iraq and Syria and its outposts in Libya and elsewhere, though our military certainly has the capability to defeat the terrorist organization. We have ceded influence to Iran in the Middle East. Our Eastern European allies are on edge as NATO seems ambivalent about a bellicose Putin, and we are not investing sufficiently in a 21st century Navy that can guarantee freedom of navigation in the South China Sea. We have the tools to address these international challenges; it is just a matter of gathering the will and thinking in years not weeks when budgeting and planning. Is our international standing strong? Yes. Satisfactory? No.

The President is right to say the state of our union is strong, and America continues to be the world’s best positioned nation—the world’s only superpower. That said, republicans are right to say we can do a lot to make America even stronger and build an economy that works better for everyday citizens. GOP candidates need to refine their rhetoric and avoid doom and gloom, which is not in sync with reality.

The genius of America is that we are always striving to make the country better because the pursuit of happiness and liberty is an unending effort. We are never satisfied with the state of the union. The GOP should offer clear contrasts with and criticisms of current policy but must maintain optimism. We are an optimistic people, and the optimism is entirely justified.

After all, how else should we feel about the strongest, most morally just nation on earth that serves as a beacon of hope for oppressed people the world over?

Feckless Actions That Caused a Firestorm

Earlier today, President Obama unveiled a batch of executive branch actions with the purported intention of cutting gun violence. While too often castigating his opponents on the issue as either heartless or in the pocket of the gun lobby, on the whole, the President offered an impassioned, compelling argument for more action on the gun issue, capped off by Obama startlingly and powerfully shedding tears as he discussed the horrific Newtown murders. Unsurprisingly, many in the GOP were up in arms (a sample: Trump, Cruz, Ryan, Price), and depressingly, some commentators even suggested Obama’s tears were fake.

Many on the right have put themselves in the position of simultaneously arguing President Obama’s actions won’t do anything yet pose existential threats to our constitution and the 2nd Amendment (this seems to be the NRA’s argument), which is a difficult if not impossible case to make. Sadly, by so quickly rushing to politicize the issue, many Republicans have shed the high ground as Obama’s orders are toothless, intended to rev up a political base needing motivation ahead of an Election. Will they solve the problem? No. Are they legal though? Almost certainly.

Aside from some uncontroversial actions on mental health, the thrust of the executive actions are focused on what it means to be a gun dealer. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is clarifying what it means to be a gun dealer, namely whether or not a gun-seller has to get a background check on the gun-buyer. Given Obama’s directive, the ATF has attempted to guide sellers whether they need to seek a license and thereby get background checks, and it’s a mess.

Obama is not to blame for why the rules are a mess. Congress is because it consistently writes vague laws, leaving it to the Executive Branch to fill in the details. By doing so, the Congress abdicates its legislative authority to the regulatory bodies under the President. Congress has no grounds to write intentionally vague laws and then complain over the interpretation. Here is the text of the law Obama is clarifying:

The term “dealer” means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.

….The term “engaged in the business” means—

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms

In plain English, if you occasionally sell a firearm, you do not need to get a license. This exception, created by Congress, is what is referred to as the “gun show loophole” as at gun shows some individuals may decide to sell a gun or trade with another collector to enhance a collection. However, those who make a business selling guns have to follow the same legal procedures whether selling in their store or at a show. There is no exception for all sales at gun shows—the gun show loophole is really a misnomer.

The law begs the question though: when does occasional cease to be occasional? When does having a hobby turn into a business? We would all probably agree that selling 1 gun per year counts as occasional but selling 3,000 would not. However, Congress has left a massive gray zone; they intentionally ducked the issue, avoiding controversy, and passed it off to the President. There is no numerical definition for occasional, and Obama does not attempt to set one. There is as plausible an argument to be made that 50 sales ceases to be occasional as 100 sales. Don’t be surprised if different Presidents enforce at different levels; Congress’s vagueness and cowardice has empowered the Executive to do just that.

Obama is essentially telling his ATF to be more stringent in its enforcement of occasional, which Congress has granted him the right to do. Obama is not threatening our Constitutional balance of power; rather, Congress has abdicated its constitutionally prescribed ones, signing them over to the President. This is not the act of an Imperial President but the result of an Impotent Legislature. If Congress does not feel the intent of their words are being enforced, they have the ability to pass a new law more clearly stating what “on occasion” means, thereby restricting the President’s discretion. Barring that, what Obama did was perfectly legal. It also isn’t dangerous to our Constitution; unless one wants to argue existing laws and their gray area unjustly infringe upon the Second Amendment, a tough sell both in the court of public opinion and in the court of law.

These actions barely move the needle and will have next to no impact on gun crime as so few gun sales will be impacted. Few mass murderers purchased guns in a sale that would have been regulated differently thanks to these changes. This is political theater with the President trying to show he is doing something to rev his base while implicitly acknowledging to do something more sweeping Democrats need to take congress, meaning those who want tighter gun control have to get out and vote. I think it is clear that Obama wants to fundamentally change our gun laws, but (unlike on immigration and soon perhaps GITMO), he recognized his limits and acted within them. It makes for good base politics but will have an imperceptible impact on gun violence.

Instead of attacking Obama for showmanship and impotence while acknowledging that in his heart he wants to see lower gun violence (and arguing he is just pushing the wrong proposals), some on the right reflexively and sadly attacked his motives, suggested he was destroying and 2nd amendment, and lamented the uselessness of his actions. Again, the second and third points seem incoherent when paired together. This is an example of Republicans politicizing the issue as much as the President to enthuse their own base ahead of an election.

Sadly, it increasingly seems like both sides lack the will for a substantive discourse on this (and other) issues, preferring to gin up their respective bases rather than making persuasive arguments and finding common ground. We keep yelling past each on guns, achieving nothing. Meanwhile, China lands planes on disputed islands in the South China Sea, Iran and Saudi Arabia inch closer to conflict, and North Korea may have conducted a nuclear test. No wonder people hate politics.

 

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When Discrimination is OK

Over the past week, a Massachusetts court case, Barrett v. Fontbonne, has generated quite a bit of interest and justifiably so. Put priefly, Fontbonne is a Catholic school that had hired Mr. Matthew Barret to be its “Food Service Director” but withdrew the offer after learning Barrett was in a same-sex marriage (he named his husband as his emergency contact). Barrett sued, citing employment discrimination, and won the case (you can read the opinion with more detailed facts here). This case is genuinely fascinating and challenging, and Fontbonne hopefully appeals (as I believe they should win the case). I would argue all Americans should hope this case reaches the Supreme Court as there are competing rights (nondiscrimination and religion) with strong arguments that deserve to be heard and ruled upon by our leading constitutional thinkers. Those who don’t feel some pull towards each parties’ position, either legally or emotionally, are probably either hopelessly partisan or simplistic in their analysis.

I also would make a clear distinction between what Fontbonne ought to do and what it is legally compelled to do. As a matter of policy, I think Fontbonne should not have rescinded its offer to Barrett due to his sexual orientation. I struggle to see how his personal life would have impacted his ability to do his job, and hiring someone does not have to be an endorsement of everything they do in their personal life. The school’s distinction that its decision was not based on Barrett’s orienation but on the fact he was in a same-sex marriage is dubious at best. The two facts are inextricably linked, and this argument suggests that by extending him a right (marriage) the government leaves him more at risk in other areas (employment). Barrett was not hired because he was gay; Fontbonne was wrong morally, theologically (again just my opinion as a non-expert, but I believe Jesus surrounded himself with many sinners and outcasts), and certainly from a public relations perspective (likely not the best way to appeal to younger Americans to grow the faith). However, policy errors by an institution are not necessarily illegal, which is the case here. If stupidity were a crime, yours truly would be writing from behind steel bars.

Religious freedom, enshrined in the first amendment, is a fundamental right in this country, a foundational principle. At the same time, not being discriminated against is also critical. In cases like this, these rights need to be balanced, and there is ample legal precedent on which to rely. The Supreme Court buckets groups into three classes when reviewing government laws and discrimination, applying different standards:

  1. Suspect class: these include race, religion, and national origin. Any law impacting this class must pass strict scrutiny (the highest standard), meaning it serves a compelling government interest, is narrowly tailored, and is the least restrictive means to achieve that interest. Few laws can survive strict scrutiny. (Ironically, one of the court’s worst decisions, Korematsu, was one in which the government met this burden).
  2. Quasi-suspect class: Gender is the primary example. Any law impacting this class must pass intermediate scrutiny (the middle standard), which means it serves an important government interest.
  3. Other classes: When not dealing with a minority of some sort, all the government needs to show is a rational basis for its law (the easiest standard). Here a law must be rationally related to a legitimate government interest.

Why is this legal tangent relevant you ask? Because, the classes in the case impact the scrutiny applied, thereby pushing the scales in a certain direction. For instance, a law that infringes upon the rights of the “other class” to help a suspect class likely survives as the level of scrutiny is lower and vice versa. The Supreme Court has been silent as to what class homosexuals belong, though Windsor (overturning the Defense of Marriage Act) suggests the court sees them as a quasi-suspect class. Frankly whatever side of this case you are on, it would be useful for the Court to hear it (or a similar one) just to get it on the record as to what level of scrutiny it is applying so that all courts around the country are ruling consistently. For twenty years, the Court has gone out of its way to avoid this issue explicitly, but it should make clear what it has implied, that homosexuals are a quasi-suspect class.

What does this mean? Any law seen as discriminating against them must serve an important government interest. So an exception to Massachusetts’ employment discrimination law permitting discrimination must be important. Protecting the freedom of religion would seem to meet this burden. Now, religion also has an interesting legal history. Sherbert v. Verner, a landmark case, determined that in matters of religion, the government must have a compelling interest (ie strict scrutiny). Under an Antonin Scalia opinion in Employment Division v. Smith, the standard seemed to shift demonstrably lower (according to some) to “general applicability” whereby laws that were religiously neutral and generally applicable (ie belonging to a religion opposing taxes does not allow one to avoid generally applicable income taxes) can survive. In response, congress passed, almost unanimously, the Religious Freedom Restoration Act (RFRA) to force the court to use strict scrutiny in religious matters. While the court later held the RFRA constitutional in federal matters, I still have constitutional reservations and generally oppose RFRA at both the Federal and State levels (legislatures shouldn’t tell courts how to rule in my opinion).

Using strict scrutiny, the question is whether the government has a compelling interest to force religious institutions to hire gay people? Remember on the flip side, Fontbonne only needs to show the religious freedom is an “important” interest. The scales seem decidedly tipped in Fontbonne’s favor. Now, the court is not forced to use this standard in state cases, yet using “general applicability” doesn’t change the outcome (the difference between this standard and the Sherbert test is less than Congress’s reaction would suggest). A religious objector needs to show a hybrid right, ie something beyond freedom of religion. Fontbonne has a second right here: association. A religious organization has latitude in who to include in its private organization, certainly more so than a non-religious, public entity. A religious institution can choose to associate only with members of its faith, otherwise clergy selection processes would be illegal.

Now, the Massachusetts court dismissed this argument, noting that by employing and accepting some non-Catholics, it loses this right. That argument is lacking, though I understand the rationale. No one would argue for instance (I hope) on a religious organization’s ability to discriminate in selecting members of its clergy (ie Catholics can require non-married Catholics be Priests and reject others out of hand). However, a food service director is not a clergyman, and per the ruling, once the school decides to employ/enroll non-Catholics, it loses protections. Essentially, the court argues religious organizations cannot be hypocrites. It can’t one day hire an atheist, the next day, fire a Jew. The rationale here is somewhat compelling.

However, now we have secular courts that have no professed proficiency in theology ruling on when religious institutions are employing some people who lead lives counter to their faith. This view also disproportionally impacts smaller religions, who need more protecting. A small faith (think a Jewish school in Montana) would likely have a hard time employing a full faculty within its faith. By virtue of its small size requiring it to hire some outsiders, does it lose protections? That doesn’t seem equitable. If anything, small religions are more at risk of marginalization and need more protection. This ruling undermines that and does the reverse.

The Court has dealt with this in a case where religious institutions lost, Lemon v. Kurtzman, which determined laws that result in “excessive government entanglement” with religious institutions are unconstitutional. In this case, having a law that requires courts to match compare employee rosters to religious tenets to see whether an institution has forfeited religious and association protections is excessive entanglement. Our courts should not be in the business of determining whether a religious institution is hypocritical. Under either standard, Fontbonne should win.

What is most interesting is if the Court were to make homosexuals a suspect class (very unlikely), putting both sides on the same playing field. I would again side with the religious institution as a religious carve-out would seem to merit “narrowly tailored” requirement while forcing a religious institution to hire anyone doesn’t seem to meet that as evidenced by the entanglement issue.

The Fontbonne case deserves the attention it had received, if not more, though the legal questions are complex. While Fontbonne’s actuals are puzzling, the government legally cannot and should not force religious institutions to hire people. Yes, a food service director is in a greyer area than a clergy member, but do we want courts determining where the black and white stops and where the grey begins? That is a recipe of ungodly bureaucracy, entangling government in religion’s business.

We are better served maintaining separation, giving a religious institution the ability to employ whomever it wants. Sometimes, the result seems awful, but government mandates could have a chilling impact on religious freedoms and risks further infringement down the road. What happened to Mr. Barrett was awful; that doesn’t make it illegal. We need to reaffirm Lemon; this country is best served when government does not entangle itself with religious institutions, either to their benefit or detriment.

Demagoguery and Destroying Due Process Won’t Solve Gun Violence

After the horrifying murders in San Bernardino Tuesday and Colorado Springs last Friday, democrats are following the advice of former Obama Chief of Staff and current Chicago Mayor Rahm Emanuel: never let a “serious crisis go to waste.” Emanuel, of course, is so morally bankrupt he apparently slowed an investigation into the death of an African-American teenager at the hands of a Police Officer to preserve his re-election chances. Sensing political advantage, democrats are out in full force, attacking republicans, demonizing those who pray for shooting victims, and urging new laws irrespective of their efficacy. They have entered full “do something for the sake of doing something even if it achieves nothing” mode while poisoning our political discourse, thereby making it harder to actually solve the problem of gun violence.

Make no mistake, gun violence is a serious problem. However, we should note that gun crimes have been halved since the early 1990’s while violent crime is back to 1970’s levels. I say this not to diminish current violence, which remains intolerably high, but to provide context as facts tend to improve the quality of solutions put forth. Even though we are safer than ever before, we are averaging roughly 1 mass shooting (the FBI defines a mass shooting as 4+ victims; depending on definition parameters, there have been anywhere from 70 to 355 “mass shootings” this year) per day. Yet for many, it feels as though violence has escalated to unprecedented levels in recent years. For this, I would point to the proliferation of social media and 24-hour news channels, which make us far more aware of these acts of violence. On net, this is a good thing as the constant reminder of human suffering will hopefully further our resolve in solving the underlying problems that beget such violence. Sadly, some, typically but not exclusively, on the left exploit these tragedies to whip up a frenzy, divide us, and all but suggest the NRA’s millions of members are callous, blood-thirsty monsters.

Sensing an opportunity to feed off Americans’ heartbreak, Democrats are pushing reforms that would do little to stop gun violence and severely undermine Americans’ fundamental rights. Let’s focus on Senator Dianne Feinstein’s proposed amendment (supported wholeheartedly by Obama and Senator Harry Reid) to block Americans on the Terror Watch List from purchasing guns. Republicans kept this proposal from becoming law by a vote of 45-54. Now, one does not need to have much political acumen to recognize the Feinstein proposal would poll extremely well (my bet would be 90-10 or better initially); after all, who wants terrorists to get guns? However, the facts are a bit more complicated, and strong polling doesn’t make it wise policy.

For perspective, the terror watch list likely contains the names of about 1 million Americans. I would note that the Terror watch list is far more encompassing than the No-Fly list, which includes about 800 Americans. In the past even The Huffington Post has ridiculed the relative ease with which one could get on the terror watch list, and I would emphasize authorities merely need “reasonable suspicion” to put someone on the list. This is a different, lower standard than the one our system of due process demands in criminal cases (beyond any reasonable doubt). That is critical because the Feinstein proposal would strip Americans of a fundamental right without affording them due process. (As an aside, democrats blocked Sen. John Cornyn’s amendment that would have given authorities 72 hours to ask a court to block a gun sale to someone on the watch list thereby preserving due process while achieving what democrats wanted. I will leave you to decide whether the left was interested in merely scoring political points or in solving the problem.)

Our constitutional architecture affords the preservation of Americans’ fundamental rights, which we may only be deprived of with “due process of law.” The Supreme Court reaffirmed that individuals have a fundamental right to bear arms in 2008’s DC v. Heller. Due process includes things like facing one’s accuser, having a jury of peers, the presumption of innocence, and so on. The Feinstein bill undermines this basic tenet of our Republic. I ask:

  1. Should the government be allowed to do warrantless searches of Americans on the Watch List whenever and wherever it wants?
  2. Should the government be allowed to regulate the speech of those on the Watch List or bar members from associating with certain other people?
  3. Should the government be allowed to proactively detain people on the Watch List for indeterminate periods of time?

I expect (and certainly hope) you would answer “no” to all these questions. Even though we want to stop suspected terrorists, we as a society recognize that fundamental rights are sacrosanct, and abridging them is very serious (and dangerous). As such, we afford suspects a fair legal process that puts the burden on the government to prove its case in a court of law before punishing the accused. There are times that our nation has grown emotional and forgotten this system, and it has been a stain on our history. In particular, I point to the internment of Japanese-Americans, violating their fundamental rights without due process. Shamefully, the Supreme Court upheld internment in Korematsu v. US. That decision, along with Dred Scott and Plessy, still impugns the reputation of our highest court.

I do not think the Feinstein proposal, had it been enacted, would ever be so damning as Korematsu, but violating fundamental rights has virtually never looked wise in hindsight. Some undoubtedly have the greater good in mind in their support of this proposal, but sadly, in no cause has more harm been done that of the greater good. Such thinking too often descends into an “ends justify the means philosophy” that airbrushes increasingly grievous wrongs in the name of safety, supposed equality, or other catchy slogans (“workers of the world unite”…). The fact is that gun ownership is a fundamental right, and stripping such rights is anathema to our values.

Yes, those on the Watch List can appeal to get off it, but this is an individual, presumed guilty, attempting to prove innocence, throwing the basic tenet of our justice system on its head. Further, the threshold for being on the watch list is lower for being convicted of a crime, making it even harder for individuals to get off the list. We afford accused murders with far greater protections than people on this list (who can include the relatives of suspected terrorists whom have not engaged in radical activities themselves). That is unjust.

We also must reject the notion that if we don’t let someone fly on a plane we shouldn’t let them own a gun (though again I emphasize the no fly list is a small subset of the watch list. We allow most on the watch list to fly, albeit with stricter scrutiny). While again I see the appeal of the argument, there is a key distinction. Flying on planes is not a fundamental right; it is a privilege, giving the government far more latitude to regulate who flies. It is similar to how states only allow licensed individuals to drive, requiring people to pass a driving and eyesight test. These are not fundamental rights, like gun ownership, religious freedom, undue searches etc. Rather than facing strict scrutiny, the government only needs a rational basis to deny a license or keep someone from flying. Comparing guns to planes, while appealing, is ultimately flawed legally.

In reality, many on the left don’t believe gun ownership should be a fundamental right, and they push policies like this one to degrade its status over time. Let’s be honest, and have the real debate, not one that appeals to emotions during times of duress but has severe legal consequences. Let’s discuss whether we should leave the constitution as is or roll back the 2nd amendment and make gun ownership a privilege like riding an airplane. Many on the right would welcome this debate, and we should have all-encompassing discussions on guns, the acceptance of violence in society, and mental health. It is the left, which knows deep down most Americans don’t want to repeal the 2nd amendment, that is avoiding this debate.

Instead, it finds back doors that actually would not do much to solve the underlying problem to score political points and feel better since they will have done something (even if that something does not solve the problem). The Feinstein amendment would place an undue burden on Americans wrongly on the watch list, probably numbering in the tens of thousands, while likely failing to deter terrorists. Do we seriously believe someone willing to die for a depraved, hateful cause will give up and turn away from violence if they can’t buy a gun, or will they look to the black market, use our porous borders to smuggle weapons, or build improvised explosives?

If democrats were so serious about solving the issue of gun violence, why didn’t they address it via sweeping reform when Obama was President and they controlled both chambers of congress? The level of violence in this country is still unacceptable, and we all bear some blame for not doing more to help the mentally ill, the economically hopeless, and to build a culture that shuns violence. We need to get serious about these issues, but in our haste, we must remember the civil liberties on which this nation was founded and avoid the temptation to undermine fundamental rights in the name of the greater good.

There are things we can do to help the mentally ill, give doctors more power to treat, improve background checks (and unlike most conservatives I would personally support the thrust of Manchin-Toomey to close the private sale transfer, though almost no mass shootings have been committed by people using this “loophole”), and stiffen penalties for those who traffic weapons.

Maliciously attacking those who pray for the grieving will not solve the problem. Nor will pushing constitutionally doomed legislation to score political points. Rather than restricting the rights of law-abiding citizens, let’s focus on solving real problems. Over-riding due process is not the solution. It rarely, if ever, is.

Ignoring History: The Lawlessness of Obama Executive Orders

On Tuesday, the Senate overwhelmingly passed the National Defense Authorization Act 91-3, leaving President Obama no choice but to sign it in lieu of suffering a humiliating veto override. Within the act, there is a provision banning the President from moving the enemy combatants held at Guantanamo Bay (GITMO) into the United States or third countries, thereby blocking the President from fulfilling his wrongheaded campaign promise in a stunningly bipartisan fashion.

Not to be deterred by an act of Congress (he is only an inveterate invertebrate when dealing with real enemies like Russia and Iran after all), the White House has hinted the President may use executive powers to flout popular will and bring detainees into the US anyway. Some like Senator Dianne Feinstein and others are suggesting the President could have the authority to do this under his Constitutional Powers as our Commander-in-Chief. They argue the President has essentially unlimited powers over just about any tactical decision in war-time. Funny, precisely these arguments have been made before, only to be blasted in one of the most important Supreme Court decisions you probably haven’t heard about (more on that below!).

These current arguments calling for more power to be placed in the executive are particularly rich, coming in a week when a Federal Appeals Court upheld an injunction on Obama’s executive order rewriting our nation’s immigration laws. Now, the President is turning to the Supreme Court hoping for a more receptive hearing; however, the case in favor of his order is so dubious he spent years explaining how he couldn’t “fix” immigration laws by executive fiat.

One’s view of the constitutionality of his immigration order and potential GITMO one should transcend your view of whether they are wise policy. The core issue is exactly how much power is vested in each branch of government, not whether the underlying policy is well-intentioned. While questions of process often illicit droopy eyes, its importance cannot be understated. Our founders built an intricate system of checks and balances to carefully ward off tyranny, and upsets in this balance can have long-lasting implications. We can take for granted how much of a historical (and sadly even contemporary) anomaly the peaceful transition of power we enjoy every Inauguration day is.

I’m not saying we are on the verge of despotic rule; the issue here is cut and dry so there is no need to hyperbolize. Rather, it is about ensuring that powers remain at the proper branch to avoid the tyranny of one branch over another at the expense of public’s will. Allowing power to wrongly accumulate risks an incremental, creeping tyranny. For 85 years, we have seen more power coalesce around the Presidency, primarily at the expense of the legislature, a phenomenon that has happened under both parties’ watch, to the point where congressional law at times feel like mere guidelines for the President. Here on GITMO in particular, we have a congress asserting its right, but a President looking to ignore it anyway, the public’s opinion be damned.

In actuality (where I happen to live), this is not an unprecedented situation, rather there is a specific precedent that crystallizes the illegality of such an executive order. In 1950, Harry Truman was President, and we were waging war in the Korea Peninsula. Truman faced a steelworker’s strike, which would have disrupted the supply of arms to our forces. Truman saw keeping steel mills open as a matter of national security. Now, Congress had passed two laws, the Taft-Hartley Act and the Selective Service Act (its applicability in this case can be debated), which could have been used to keep the mills operating. Instead, he circumvented the will of Congress and unilaterally seized the plants to be run under the watchful eye of the Federal Government. Believe it or not, legal calamity ensued.

In a 6 to 3 decision in Youngstown v. Sawyer, the Court delivered one of the biggest pushbacks against a Presidential power grab in the century. Truman’s argument that his war powers granted him the ability to seize private property was found sorely wanting. In his concurring opinion (which is the opinion whose influence has endured time in this case), Justice Robert Jackson explained the three tiers of Presidential power (courtesy of Findlaw, emphasis mine):

  1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
  2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Essentially, Jackson believes the Court needs to view Presidential power in three ways. In the first situation when the President is acting thanks to an act of congress, he has the most authority (both his and Congress’s combined). In the second, Congress is silent, which could lead to a fuzzy gray area over whether it is Congressional or Presidential authority. This means the President is not due the same level of deference as when Congress acts alongside him. In the third situation, the President acts against an act of Congress (either clear or implied), so his power is at the lowest ebb because the Court needs to disable Congress’s ability to legislate in that area. As such, the Court would be ruling for the President and against the Congress, threatening the balance of powers.

Incidentally, the President’s immigration executive order falls squarely into the third category where he is trying to move directly against the intent of our immigration laws. As congress indisputably has the authority to write our immigration laws, the President’s power here is non-existent, and his executive order is blatantly lawless.

Now while Gitmo also clearly falls into the third category, it is a bit trickier constitutionally as the President definitely has more power when it comes to waging war than in domestic affairs, though this power is not absolute. In Youngstown, Jackson found Truman was in the third scenario as well—the parallel fortuitously continues. The Court did determine that Congressional laws dictating the process for dealing with strikes (that were totally ignored by Truman) were still relevant during war-time as the powers of the Commander-in-Chief are actually “cryptic” to quote Jackson contrary to what Obama’s cheering squad now suggests. Jackson goes on (emphasis mine):

He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may to some unknown extent impinge upon even command functions.

This statement clearly goes against the pre-planned argument from Obama’s allies that Congress is meddling in tactical matters. That fact is not in and of itself problematic, particularly because we are dealing in part with an internal issue where the President would be bringing enemy combatants into the United States itself. Jackson eloquently notes the danger of letting a President use his foreign powers to assert additional powers within our borders (emphasis mine):

But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture….

 

This argument holds whether we are dealing with enemy combatants or steel plants. The idea our elected representatives would be powerless over what happens within our country is abhorrent to the very essence of democracy. Moreover, this line of attack doesn’t just come from our Courts, it is directly address by our founders themselves. Jackson again (emphasis mine if you hadn’t caught on by now):

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress.

Our founders went out of their way to expressly give our Congress legislative power in a tactical matter (housing soldiers) when it occurs on our soil. Ironically, many feel like the 3rd amendment is quaint if not anachronistic, serving no purpose in a modern society such as ours. They are wrong as the wider applicability is clear. The founders did not envision a President being able to take total power, Roman dictator style, during a time of war. They went out of their way to carve a role for Congress when the matters of war are internal in nature. How often in the course of human history have we seen dictators use foreign adventures as an excuse to tighten their grip back home? That is anathema to our carefully crafted constitution, ensuring democracy and balanced powers in peace and war time alike.

Given this reasoning, it isn’t hard to see that Congressional laws in that 1952 case were relevant and that Truman over-stepped. Was Truman attempting to become a dictator? Of course not; in totality, he was still one of our finer Presidents. This was merely a case where he reached too far in a time of war, and the Supreme Court took the opportunity to draw a clear line in the sand regarding Presidential power. By the same token, one doesn’t have to think Obama is a dictator to find his executive orders to be an overreach.

If there is any cogent argument differentiating a GITMO executive order from Truman’s in Youngstown v. Sawyer, I have yet to come across it. With Obama planning to sign the NDAA that has GITMO restrictions, any executive order would clearly fall in Jackson’s third scenario (contradiction with Congress’s intent) where Presidential authority is at its weakest. Bringing detainees into the United States proper is without a doubt an internal matter, giving Congress the constitutional power to legislate on the issue. That simple fact evaporates what legs that aspect of order stands on.

What about the aspect of the law that bans the President from sending detainees to Libya, Syria, or elsewhere? Does the fact the United States proper is not involved negate the specific “internal” Congressional powers implied by the 3rd amendment? In short, no. In 2008’s Boumediene v. Bush, Justice Anthony Kennedy’s majority opinion makes clear the US has “de facto” sovereignty over GITMO, making the fundamental rights of the constitution applicable there. This ruling functionally makes GITMO “internal,” providing Congress with authority. In other words, Congress has the power to put restrictions on the closure of GITMO and transfer inmates anywhere, not just to the United States but to Libya and other third countries as well.

Looking at simple Supreme Court precedent underlines the sheer lawlessness of Obama’s plans. In Youngstown, Presidential powers are clearly delineated, and on both immigration (where Courts are already standing up) and GITMO (where an executive order may be in the works), his power is at its nadir. Plus, it now appears Democrats plan to argue that being in war gives a President absolute power (funny, it seems like just 8 years ago they argued the opposite), but this does not jive with our history or the obvious intent of our founders and is really an effort to stack powers inside an Imperial President. No matter your policy preference, this is dangerous as it takes power away from the power of the people’s representatives in Congress who are a necessary check. Our constitutional balance of power is a delicate one; we mustn’t unnecessarily tamper with it and risk breaking it for our next generation. Certainly not to score cheap political points.

Obama has been fond of shamelessly saying Republicans want a return to the 1950’s for women’s rights. Well, it appears in his zeal over studying 1950’s contraception policy, he skipped over that decade’s constitutional lessons. Ironic; he was a constitutional professor after all. Must’ve skipped those classes.

 

Paul Ryan, Unlike Hillary Clinton, Is the Kind of Leader We Need

In the weeks after Speaker John Boehner’s announced his resignation, two facts have become clear if not irrefutable:

  1. Paul Ryan is the only person capable of getting the required 218 votes to become Speaker of the House
  2. Paul Ryan has absolutely no interest in being Speaker of the House

Now for the past two weeks, national Republicans have subjected Ryan to a full court press to become Speaker. Eventually, I suspect Ryan will capitulate because he can see as clearly as anyone else that no one else can actually do the job (reports suggest he is getting closer to “yes”). Ultimately, the country (and the Republican Party) needs someone to be Speaker of the House to keep the House from descending into total dysfunction. That said the very reason why Ryan would be such a great Speaker is the only reason why he may not be Speaker: he doesn’t want the job.

Democracy demands leaders who seek power not for personal gain but for the betterment of the nation. Voters should run, not walk, from self-aggrandizing candidates, seeking power just for the sake of wielding it. As an aside, this is a fundamental flaw in Hillary Clinton’s campaign for the Presidency. She seems to run only because she wants to be President to have her name etched in the History books rather than because she feels compelled to fix serious problems (of which we have numerous, thanks in large part to the current President). Heck when asked to explain how her Presidency would be different from Obama’s at the debate, all she could muster as an answer was that she’s a woman. If the underlying rationale for seeking the most important job on the planet is your gender, one really has to wonder if you are running to better the nation or merely to stroke your ego and wield power you have felt entitled to for years.

Politicians who seek power for power’s sake will lie, cheat and steal to attain power; they will do the same to keep it. Nixon’s Watergate and Hillary’s private server are examples of this. Unfortunately, we also see individuals who begin their careers seeking to better the country gradually succumb to the allure of power over time, trading their principles for political self-preservation; hence, the often widespread support of term limits among voters to counteract this reality.

As voters, we should not only avoid politicians who seek power for their own sake; we should also seek out politicians seeking to better the country. We are better off with leaders whom we agree with 80% of the time (or even less) but have clear guiding principles than leaders whom pander to us 100% of the time for the sake of jumping in opinion polls. If a leader can’t be trusted to be honest, that individual is unfit to serve.             That brings us back to Paul Ryan, the anti-Hillary. So much of the distrust felt towards House Leadership by the Freedom Caucus and grassroots base was the (often unfair) belief Boehner et al focused on staying in the good graces of K Street than fighting for conservative principles. Tactical disagreements quickly became a referendum on the personal character of leadership. In Ryan, we’d have a leader who doesn’t even want the job but is serving for the sake of the country. That fact gives him, and the deals he strikes, more credibility, making it easier for him to govern and lead a fractious GOP majority. Ryan can’t change the reality that Obama is still the President, but he has been offering specific, conservative solutions for longer than anyone else in the House.             Ryan leaving the Ways and Means chairmanship he so loves to assume the Speakership would be one of the clearest example of a politician putting the needs of the country ahead of personal ambitions in years. After all, he already chairs the most powerful committee in the House, which is also suited for his wonky tendencies, and is currently positioned to be the critical player in the next President’s efforts to reform our inefficient tax code. He’d be taking a thankless job where he is basically a glorified psychologist for 246 bloated egos, herding cats, and dealing with a President who has no interest in doing anything other than score political points for the next 15 months. It’s no surprise he doesn’t want the job. If anything, his path to the Presidency over the next 15 years would be complicated by becoming speaker.             We need a Congress that works for the public, prioritizing the needs of the country, and that starts with selfless congressional leadership. Ryan would fundamentally alter the paradigm of long-serving Washington insiders taking power. Instead, we would have a Speaker primarily interested in policy and in governing who has spent a decade explaining a hopeful, conservative vision for the country.

What a powerful contrast to a Democratic Presidential frontrunner who has spent years adding job titles to her resume without accomplishing much, except for finding new ways to break the laws and violate the public’s trust. In Ryan, we’d have a People’s Speaker in the People’s House.