Conseratives: Don’t Pledge #NeverTrump

On Friday, New Jersey Governor Chris Christie endorsed Donald Trump, stepping on whatever debate momentum Senator Marco Rubio had and becoming the first major elected official to support the frontrunner for the Republican nomination for President. Conservatives lit up the Governor for his endorsement with some like Erick Erickson pledging never to support Trump. In fact, #NeverTrump was trending across the United States on Friday night as conservatives lined up against Trump, making the same pledge as Erickson. This is a mistake.

Let me be clear, I am not suggesting conservatives vote for Trump in the Republican primary as I am not a Trump supporter. I have supported Ohio Governor John Kasich since he announced last summer and continue to today (full disclosure: I have also donated to his campaign). I believe Kasich is the only candidate running today with any meaningful accomplishments in government, has an excellent record in Ohio, plays to our hopes rather than our fears, and is eminently electable. Across the board, Kasich is a better choice than Trump or Rubio or Senator Ted Cruz. I hope you vote for him in the primary.

That said, Trump is the clear frontrunner for the nomination (I would peg his odds at roughly 70%), and for the sake of argument, let’s assume he is the nominee. What should conservatives do in the General when he faces Clinton? Those saying #NeverTrump are pledging not to vote for him in that election, which is an error. Conservatives have five choices: stay home, vote 3rd party, don’t vote in the Presidential election but vote in down-ballot races, vote Hillary Clinton, or vote Trump. Hopefully, we agree staying home is the worst choice and a dereliction of civic duty. There are still important down-ballot races with qualified conservatives, and those candidates need our support. In the event of a credible 3rd party candidate (I would define credible as consistently polling in the 20’s), there may be a strong case to vote for that person over Trump or Hillary (I think this may happen with Mitt Romney possibly running as an independent conservative). Let’s set that scenario aside, as the question is whether it is wise to pledge never to support Trump, no if, ands, or buts. That leaves: Trump, Hillary, or blank ballot.

Ultimately, choosing a blank ballot or voting for Hillary makes it more likely she will be President by lowering the number of Democrat and Independent votes she must draw. I struggle to see how conservatives are better off with Clinton than Trump. Yes, Trump has changed positions on many issues over the years, but Clinton is a committed leftist who has moved further left to ward off the challenge from a socialist. On matters of policy, I am sympathetic to the notion Trump is a wildcard given his inconsistency, but is he going to be worse than Hillary? Yes, there is a risk Trump nominates a liberal to the Supreme Court, but is there any doubt Hillary would? Sometimes, you are better with the devil you don’t know than the devil you do, which would be the case in a Trump v. Clinton election even for conservatives more dubious of Trump than me.

In a vacuum, would Donald Trump be my choice for President? No, but general elections are choices. Not choosing one is a choice for the other; opposing Trump helps Hillary. Trump is a gamble, yes, but Clinton is a sure-fire losing hand. Relative to Hillary, the risk of a Trump Presidency is skewed to the upside. Trump is also not wrong on everything; he is right we need to be tougher on China. They hack our systems, steal our intellectual property, and are taking territory in the China Sea. He is right that the working class is being screwed; median wages are lower than when George W. Bush became President. Both parties are to blame. On foreign affairs, I would also note Clinton has not been a particular success. How’s the Russian reset? Or Libyan intervention? Or situation in Syria? I do think Trump is peddling some fiction to get elected (note: I am not excusing this behavior) and would govern more as a centrist technocrat, so I believe he would be a more competent President than Clinton. Even if you disagree with that assessment, which is admitted speculation, Clinton will be at least as damaging to the conservative cause as he would be given her platform. She will certainly push for leftist policies whereas he may not. His upside exceeds his downside relative to Clinton.

I would also note that much of what conservatives hate/fear (the Muslim ban, his insults, his comments on libel laws, his finger on the nuclear button etc.) are likely campaign bluster. Again, I am not excusing that behavior, but it suggests he could be a fine President. Even if I am wrong, our government has well-built structures that limit the power of the President, ensuring these positions could not become law. The strength of our institutions deserve more credit than some alarmists let on, further diminishing his downside. While Trump enjoys a Twitter tirade, he has a history of avoiding direct confrontation (with the exception of his personal punching bag, Jeb Bush) as illustrated by his handling of Megyn Kelly among others. I see no reason to feel less safe with Trump our Commander-in-Chief than Clinton.

#NeverTrump conservatives should also ask themselves whether his VP choice could sway them. Ultimatums made rashly can make one look foolish when one reverses or keep one anchored to bad positions out of an aversion to reversing. Does Cruz (or someone else) allay some concerns? If yes, perhaps, it is best to wait for him to make that choice. Assuming he is the nominee, who Trump picks as his VP will be fascinating and enlightening. If I were to make 5 guesses, I would go (in descending order of likelihood): David Petraeus, a business person (to emphasize the anti-politician theme—this un-named pick on my part is a clear cop-out), John Kasich, Bill O’Reilly, and Chris Christie. Who really knows though?

The General Election is a choice, and Trump is a better one than Clinton, especially as his worst ideas won’t become law with any reasonable congress if he even pursues them.

Conservatives could stand to benefit from some of Trump’s populism, and we do need toughness against China. He would also likely surround himself with smart people, providing wise council. A couple dozen people I know, whose judgment I respect and whose character is unimpeachable, are Trump supporters, and their support may have softened my opposition. The twittersphere showcases the worst of his support but is not representative of much of his base. Questions of moral fitness aside, I do think Trump, whom would likely govern as a centrist and pragmatist, would be a decent President, and the fact Clinton with her server and serial lying is equally unfit renders that concern moot in the General Election.

Conservatives have every right to oppose Trump in the primary. However should he be the nominee (very likely), we should be anti-Hillary in 2016, and this may mean voting for Donald Trump. Pledging #NeverTrump is a mistake.

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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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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.

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.

 

Kim Davis Is No Conservative Hero

As the seemingly endless Kim Davis saga continues to play out, I have been struck by two entirely predictable phenomenon. First, the mainstream media has used this controversy to marginalize Christians and people of faith as behind-the-times if not hateful. Unfortunately, the mainstream media isn’t changing anytime soon, and conservatives and Christians just have to deal with unceasing bias and abuse. Second, I have found it interesting but entirely unsurprising that Ms. Davis is a Democrat, as that party is often the one lacking empathy and placing too much power in the hands of the government. Sadly, some conservatives have taken up her cause by making what amounts to a weak freedom of religion argument in defense of her action.

To be conservative is to support the limitation of the state’s power over its citizenry; each individual bureaucrats’ powers should be tightly restricted and regulated to ensure equal treatment and limit cronyism. Whether interacting with Official A or B, you should get the same outcome. Placing inordinate power in the hands of public officials is the hallmark of leftist authoritarian regimes where members of the government decide what job you have or in extremes whether you live or die—just ask those who refused to toe the party line in the Soviet Union. Placing unnecessary discretion in the hand of public officials gives the state power over its people.

We have seen this transpire on a small scale in the United States. Depending on what city you live in, some immigration laws are enforced while others are ignored, leading to horrible tragedies like Kate Steinle’s death. Our President blatantly ignores immigration laws, single-handedly rewrites EPA policies, and premised his signature law around the idea that government officials were best suited to determine what should be covered in healthcare insurance plans. Conservatives rightly balk at these measures because they concentrate more power in an inefficient, corrupt federal government. Together, these actions give the state more power over the people, bringing us closer to the tyranny we have spent centuries fighting against.

This brings us to the case of Kentucky County Clerk Kim Davis who does not want to issue marriage licenses to same-sex couples, citing religious differences. Ms. Davis has been critical of the Supreme Court’s 5-4 ruling that legalized gay marriage, and for good reason! Justices Roberts, Scalia, and others have made persuasive arguments against the ruling’s legal logic. However, we cannot have a system where every government employee chooses which court ruling to apply and which to ignore. That would lead to total anarchy. If the Supreme Court over-reached, our constitution provides a path to rectify the situation. The legislative branch can craft new laws to nullify the ruling or if necessary amend the constitution, but until Congress acts, government employees need to respect the Court’s decisions. To act otherwise and let officials ignore rulings would essentially doom the Judiciary to irrelevancy and give the executive virtually unchecked power.

That leaves Davis with only a religious liberty argument—her religion teaches that same-sex unions are morally wrong and so she cannot be a party to one. Some conservatives have gravitated to this argument in recent days, but I fear they do so because they agree with Davis on gay marriage without thinking through the consequences. After all, the government does not rule on the wisdom of religious beliefs, it must protect and respect all sincerely held beliefs equally. If someone sincerely feels inter-racial marriages are against religious convictions, could they deny a license? If someone felt second marriages were immoral, should they be allowed to deny all licenses to divorced individuals?

Moreover, many religions stress fidelity and other requirements. Should each county clerk be allowed to ask prying questions to prospective couples to ensure the marriage meets that clerk’s own standard? Do we want government officials really exerting that much control over Americans, particularly over an issue as important and personal as marriage? The government, and by extension its officials, should not be prying into intimate details of its citizens private lives. There are likely religious issues with many marriages that have been approved by Davis and others; it just so happens the issues are more visible with gay couples. Should we treat gay couples differently because the potential religious issues are just harder to hide?

In the end, we as a society need to balance two rights, first, Davis’ right to believe what she wants, and every American’s right to purse happiness, including after the Supreme Court’s ruling, gay people’s right to marry. It is a delicate act, and throwing Davis in jail was clearly unnecessary. While I can see the pull to support Davis on religious grounds, this only concentrates more power in the hand of the government, giving officials more power and discretion. I ask: would President Obama’s immigration actions be any less lawless if they were driven by religious motivations? Government officials need to enforce all laws, even those they disagree with, to avoid cronyism and the concentration of power. Ultimately, the rights of the public have to outweigh the rights of government officials for an official can always resign but the public can’t just find a new, freer country.

Conservatives should be fighting for individuals’ freedom, rather than siding with Ms. Davis and putting more power in the hands of the government. This is really a battle about the role of government in our lives not about religious freedom. In my relatively short life as a young gay man, I have found conservatives and the Republican Party to be the champions of openness and acceptance, and democrats the party of division and intolerance. That is because conservatives see the uniqueness and beauty in each individual rather than in a central state. I just hope conservatives turn away from Davis’s antics and return to these roots.

Unfortunately, incidents like this can easily be used to unfairly caricature the party as having outdated if not bigoted beliefs. It is time for the real Republican Party to stand-up, the big tent that believes in fair play and the innate decency of all people with a government that does not involve itself unnecessarily in private lives or private markets. This is the party I’ve come to know and support. Given how younger Americans, democrat and republican alike, feel about same-sex marriage, certain members of the Republican Party needs to stop their knee-jerk reactions to incidents like this one if we are to be a viable, national party in coming years. Fortunately, the politically wise stance that Davis should issue licenses is also in keeping with true conservative principles: that the government and its officials serve the people not the reverse. It is time for Ms. Davis to serve all of her constituents, including those seeking same-sex marriage licenses, and if she doesn’t want to do that, she should step aside.