The U.S. Supreme Court “gay marriage” ruling – how we got to this, and what do we do now?

A candid analysis from the trenches that you won’t see elsewhere.

On May 26, the US Supreme Court ruled that “gay marriage” is a constitutional right guaranteed under the Fourteenth Amendment. An enormous amount has been written, including by the dissenting Justices, clearly exposing it as fraudulent, unconstitutional, and illegitimate – no less than pure judicial political activism.

Getting right to the point.Russian immigrants holding signs outside the Massachusetts State House during Marriage Amendment Constitutional Convention demonstrations in 2007. They said to us, “You Americans don’t get it. You’ve got to be radical if you’re going to stop this.” NOTE the policeman was stationed right in front of them the entire time. [MassResistance photo]

Probably most egregious, according to federal law Justices Ginsburg and Kagan should have recused themselves from this case because they had performed “gay marriages” and had voiced support for making it legal, and for LGBT rights in general. Thus the conduct of the case was a violation of the respondents’ right to an impartial hearing – implied in the Fourteenth Amendment’s “due process” clause.

But this judicial activism was the culmination of years of powerful unchecked political (and psychological) momentum.

What really happened?

Probably the biggest reason we’ve been losing this battle so spectacularly rests in the laps of our own movement. It pains us to say that in many ways the religious pro-family establishment is as treacherous and opportunist as the national Republican Party establishment.

For the past decade, the religious pro-family establishment has essentially made a deal with the devil on the LGBT issue. As they took on the “culture war battles” they desperately didn’t want to be labeled as haters, bigots, fringe elements, etc., by the liberal media and political class. In return they implicitly agreed not to demean homosexual (or transgender) behavior as being immoral, perverted, unnatural, destructive, unhealthy, or medically dangerous. Although they support traditional marriage, they purposefully didn’t oppose homosexual civil unions or domestic partnerships. And although they preached that “every child needs a mother and a father,” they didn’t oppose adoption by homosexual couples or describe the practice as harmful to children.

This large scale self-censorship was an incredible benefit to the LGBT movement over the years. It completely freed them from having to defend their most vulnerable and obvious weaknesses. Instead, they were able to pound away ad nauseam with their contrived “civil rights” arguments (which also were left unchallenged). At the same time, our side busied itself with unconvincing discussions of the nature of marriage, what’s “better” for children, religious freedom, and the like.

This terrible strategy also greatly hurt us in the LGBT “culture war” battle in society in general.  The refusal by our movement and its leaders to tell the truth allowed corporations, politicians (including the GOP), civic organizations, left-wing churches, and other institutions to cave in to the LGBT movement largely unimpeded. (Our favorite: Pro-family groups rebuked corporations by politely asking them to “Be neutral in the culture war,” instead of demanding “Don’t support perversion.”)

Once the radicals got this momentum going, is it any wonder the LGBT movement was able to sail through the federal courts? Our side’s legal arguments were often so lopsided that judges were almost left no choice but to rule for the homosexuals. Back in 2009, in the California Prop-8 trial, the out-homosexual federal judge actually rebuked the pro-family attorneys for presenting such an inept presentation of their case.

The US Supreme Court “gay marriage” case continued this pattern, as we reported back in May. And the result, shocking as it was, was really much the same as in the lower federal courts.

The other big problem

The other huge obstacle to pro-family success has been the cowardly exit of wealthy conservative donors from this battle. It became evident soon after the Proposition-8 victory in California, when homosexual activists viciously (and very publicly) attacked key individuals and businesses who had donated to the pro-family side. And the pro-family side did little to counter it. So it’s had the desired effect. Many wealthy conservative businessmen have admitted to us that they’re simply afraid to donate to groups in this fight.

As a result, it’s been overwhelmingly difficult for our side. Homosexual groups receive millions from pro-“gay” individuals, corporations, and the government. But front-line pro-family groups are always scrambling just to pay their bills. It’s not uncommon for pro-family groups to be at a 50-1 or even 100-1 funding disadvantage in crucial LGBT battles. When pleaded with for needed support, conservative businessmen simply shrug their shoulders.

What should we do?

It’s easy to conclude that the LGBT movement has now captured America and its grip is insurmountable.

Don’t believe it. Any serious study of the history of political movements around the world over the last hundred years (both good and evil – viz. Lenin, Mao, Gandhi, Alinsky, Martin Luther King, the fall of the USSR under Reagan) reveals the massive weaknesses of the LGBT movement lurking just under the surface. In other words, given the right kind of opposition it could all come down. The more they talk about “being on the right side of history” the more it’s really covering up a house of cards.

Strategically, there are many things that need to be done make their movement collapse. We will be talking more about this in future posts.

But right now – as Pope John Paul II observed –  the two most important that one must do are telling the truth and not being afraid. It may seem simplistic, but these alone are very powerful. No totalitarian movement can withstand it for very long.

That’s why the situation with Dr. Paul Church is so critical. As we reported recently, Dr. Church, a member of the Harvard Medical School faculty, has been fired from a major hospital in Boston because he insisted on telling the truth to other staff members about the medical dangers of homosexual behavior. He voiced opposition to the hospital’s aggressive promotion of LGBT activities. And he wouldn’t back down to threats and intimidation from the hospital administration to stop talking about it. (He even used the dreaded p-word — “perversion” — in his correspondence! And he quoted the Bible!)

Dr. Church did what almost no prominent pro-family leader has been willing to do. And he knowingly risked his job to do it. Everybody must do what Dr. Church is doing.

Another thing we all must do: Openly resist this Supreme Court ruling every chance we get, in ways big and small.

As Princeton’s Prof. Robert George observed about Abraham Lincoln and the Supreme Court’s clearly unconstitutional Dred Scott ruling:

“In office, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat the Dred Scott decision as creating a rule of law binding on the executive branch. His administration issued passports and other documents to free blacks, thus treating them as citizens of the United States despite the Court’s denial of their status as citizens. He signed legislation that plainly placed restrictions on slavery in the western territories in defiance of [Chief Justice] Taney’s ruling.”

What would this mean in our daily lives?  Maybe it means complaining loudly if your child’s school plans to teach about “same-sex marriage” to your kids. Or insisting in a conversation that “gay marriage” is an unnatural fiction. Or objecting if your company pushes it in “diversity training.”
To sum up, in many ways this horrible ruling was the predictable result of our own movement’s cowardice and incompetence. Not surprisingly, the proponents are moving fast to seal it in our psyche as permanent. Already, we’re seeing articles in the mainstream media that the world has changed forever and the ignorant dissent will soon be washed away. But the world is a lot more resilient than they think. Their modern day “thousand year Reich” is as unreal as the previous one. It’s up to us to take it down.

Watch a VIDEO of our reaction (1 min 33 sec):

RELATED ARTICLE: Oregon allowing 15-year-olds to get state-subsidized sex-change operations | Fox News

Supreme Court’s Same Sex Marriage Decision Judicial Tyranny — Expect a Wave of Christian Persecution

Last Friday, June 26th, a committee of five un-elected lawyers ignoring the expressed will of an overwhelming majority of Americans, ruled that the definition of marriage as the union of one man and one women, which has existed for thousands of years, is unconstitutional. In the process the majority dispelled the concept “that we are a government of laws, not of men.”

Four Justices wrote stinging dissents. Justice Scalia wrote that the majority opinion is “a threat to American democracy.”  Scalia went on: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government…. A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

READ the dissents: Roberts, Scalia, Thomas, and Alito.

Of the 35 States that voted on the issue of same-sex marriage, 32 States opted to retain the traditional definition of marriage.  In fact, in the case of Obergefell v. Hodges, the Court reviewed the laws of Michigan, Ohio, Kentucky, and Tennessee.  In each of these states, an overwhelming majority of voters voted in favor of traditional marriage: 88% in Tennessee, 74% in Kentucky, 62% in Ohio and 59% in Michigan.

Chief Justice Roberts, destroying the majority’s legal basis for same–sex marriage, concluded, “The right it announces has no basis in the Constitution or this Court’s precedent.”  He wrote, “The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.”

Up until last Friday, since the founding of our nation, and for the last approximately 2,000 years of Christianity, across all civilizations and cultures, the definition of marriage has been the same—the union of a man and a woman.

And Bible believing Christians cannot and will not accept this illegitimate decision.  Christ said:

“Have you not read that from the beginning the Creator ‘made them male and female’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate.” (Matthew 19: 4-6, NASB)

The Court’s decision in this case is not the final word.  It is not the same as So sayeth the Lord.

In 1857, the Supreme Court used the same substantive Due Process rationale in its Dred Scott decision to protect the rights of slaveholders to own slaves as property.  As Chief Justice Roberts observed, “Dred Scott’s holding was overruled on the battlefields of the Civil War….”

Christians are born for combat, and so this decision, similar to the Courts creation of the constitutional right to abortion in Roe v Wade, will not end the debate.  We must launch a well-thought out offensive to change this decision and stop America’s decline as a result of her jettisoning the Christian principles upon which this great nation was founded.

So what’s next?

In the short term we must ensure that federal and state laws are enacted that will protect the religious freedom of Christians, not only to speak out but also, to exercise their faith. But that is just the beginning. We must also begin to counter the slick, meaningless slogans used by homosexual advocates such as “marriage equality.”  A million-man march on Washington may also get the Court and politicians to act.

Families are too important to the survival of our nation for Christians to retreat to their religious ghetto. Besides, homosexuals will not be satisfied until every vestige of opposition to same-sex marriage is destroyed.  They have already embarked on a wave of persecution against those opposed to their agenda.  It will only get worse.

Princeton law professor Robert George pointed to the increasing oppression of Christians who oppose a redefinition of marriage. He said that business owners, adoption agencies and workers in several states have already been threatened, pushed out of their industries, or forced to violate their consciences in order to operate their businesses. George pointed out that many government employees have been subjected to disciplinary action and threatened with termination for expressing their biblical views on marriage. Unquestionably there will be efforts to revoke the tax-exempt status of the Catholic Church as well as other Christian organizations that teach that marriage is the union of a man and woman. And the list will continue on.

The Thomas more Law Center filed several friend of the court briefs in support of the definition of traditional marriage. It has defended the rights of Christians to speak out  and act on this issue and it will continue to do so.

RELATED ARTICLES:

Senator Ted Cruz Tells States to Ignore Supreme Court Ruling on Homosexual Marriage

Stop the Media From Silencing Your Voice on Marriage

Why Bobby Jindal Is ‘Not Evolving’ on Marriage

In-Depth: 4 Harms the Court’s Marriage Ruling Will Cause

How to Preserve Religious Freedom After Supreme Court’s Activist Decision on Marriage

Bobby Jindal: ‘Religious Liberty Created the United States of America’

SCOTUS Says You Can Be Sued for Unintentional Discrimination by Walter Olson

Stop calling it fair housing law. If it was ever a matter of fairness, it isn’t now.

Under today’s 5-4 Supreme Court holding in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, you can be held liable for housing discrimination whether or not you or anyone in your organization intended to discriminate.

Instead — to quote Justice Anthony Kennedy, who joined with the Court’s four liberals in a 5-4 majority — you might have been influenced by “unconscious prejudice” or “stereotyping” when you lent money or rented apartments or carried on appraisal or brokerage or planning functions.

What you did had “disparate impact” on some race or other legally protected group, and now you’re caught up in potentially ruinous litigation in which it’s up to you to show that you had a good reason for what you did and could not have arranged your actions in some other way that had less disparate impact.

The decision is quite broad in its implications. For example, in employment discrimination law, where disparate impact has long been legally established, it is increasingly legally dangerous to ask job applicants about criminal records, or carry out criminal background checks on them before a job offer, for fear of disparate impact.

Is it still safe to ask such questions of prospective tenants in your apartment building? Better ask your lawyer.

The case hinged on statutory interpretation, and as Justice Alito’s dissent makes clear, King v. Burwell wasn’t the only case decided today in which a majority mangled the clear meaning of a law’s text to get the result it wanted.

As Justice Ginsburg was frank enough to note at oral argument, “”If we’re going to be realistic about it…in 1968, when the Fair Housing Act passed, nobody knew anything about disparate impact.”

On the contrary, the law’s text specified that it was banning decisions taken “because of” race, and to find a loophole the majority was obliged to fall back on an incidental clause banning the making “unavailable” of a “dwelling,” which we are meant to believe snuck in a huge new area of liability.

As the majority stresses, many appeals courts did go along with a liberal interpretation. But the Executive Branch did not — in 1988 it took the position before the Court that the law did not permit disparate impact claims — while Congress hedged the issue in later enactments so as to keep all sides on board a compromise.

Despite ridiculous claims (like that in a Vox headline) that the Court today “saved” the Fair Housing Act or that a contrary decision would have “gutted” it, the great majority of litigation under the Act has been on disparate-treatment complaints (which, as Alito notes, can already use disparate impact as evidence of pretext.)

But the Obama administration, as I’ve documented elsewhere, has launched a huge effort to turn disparate-impact law into an engine of revolutionary changes in local government and housing practice, introducing, for example, such concepts as a local government obligation to pursue subsidized federal housing grants and to enact laws forcing private landlords to accept Section 8 tenants.

As the four dissenters make clear, a compliance and litigation nightmare now looms for many in real estate, finance, and local government as they try to dodge liability.

“No matter what [Texas] decides” in the case at hand on locating low-income housing, for example, one or another group “will be able to bring a disparate-impact case” based either on the theory that projects should be put in poorer areas (which enables building more of them) or in affluent areas (which will benefit some future residents).

If you have time to read only one bit of today’s opinion, read Justice Clarence Thomas’s separate dissent. Thomas brilliantly recounts the EEOC’s successful subversion of its own founding statute, culminating in the Court’s profoundly mistaken opinion in Griggs v. Duke Power, the employment case that founded disparate impact theory.

“We should drop the pretense that Griggs’ interpretation of Title VII was legitimate,” he writes. It’s a tour de force — and already being denounced vehemently on the Left.

This post first appeared at Cato.org.


Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

“SCOTUScare”: Supreme Court Guts Obamacare to Uphold Subsidies by Daniel Bier

The Supreme Court has voted 6-3 (with Chief Justice Roberts writing the majority opinion, joined by Justice Kennedy and the four liberal justices) to uphold the subsidies the IRS is distributing for health insurance plans purchased on the federal insurance exchange.

This ruling sets a dangerous precedent, and its reasoning is, as Justice Scalia wrote in his dissent, “quite absurd.”

There will no doubt be much written about the decision in the coming days, and almost all of it will mischaracterize the ruling as the Supreme Court “saving” the Affordable Care Act again.

This is a crucial error: The Court’s ruling guts the ACA and rewrites [it] in a way that is politically convenient for the president — again.

When the Patient Protection and Affordable Care Act was passed in 2010, the law was designed to work through a “cooperative federalism” approach. For example, the portion of the law expanding Medicaid, like the rest of Medicaid, would be a joint federal-state program, partly funded and regulated by the feds but administered by the states.

The part of the law meant to increase individually purchased insurance coverage was similarly designed to work through federal-state cooperation.

Each state would set up its own health insurance “exchange,” and the federal government would issue tax credits for qualified individuals who purchased policies on the state exchanges. The logic here is that the states are best suited to run exchanges for their residents, as they have particular and specialized knowledge about other state healthcare programs, state regulations on insurance, and their residents’ health needs.

But the law did not (and constitutionally could not) force state governments set up exchanges. So as a backstop, a separate section of the law allows the federal government to set up an exchange for residents in states that did not set up their own.

Here’s where it got problematic: The plain text of the law only authorizes tax credits for policies purchased on an “exchange established by the State.”

There’s no easy way around this fact. Nowhere does the ACA authorize subsidies for plans purchased on the federal exchange. None of this would have been an issue if every state had chosen to build an exchange, as the law’s authors anticipated.

But in reality, the ACA has been persistently unpopular, and only 14 states (and DC) had working exchanges. The details of the backstop provision suddenly became a lot more important as the residents of 36 states were cast onto the federal exchange.

Faced with uncooperative federalism, the Obama administration suddenly had a big political problem, and it would have been quite embarrassing for the law’s biggest benefit to evaporate just as the president was planning to run for reelection on it.

So 14 months after the bill was signed into law, the IRS issued a rule, by executive fiat, to issue subsidies on the federal exchange. Because the penalty for failing [to] purchase health insurance is based on the cost of insurance, including subsidies, relative to a person’s income, individuals and businesses in states without exchanges who would otherwise have been exempt from fines and mandates were now in violation.

Lawsuits followed, which argued the IRS’s decision to issue subsidies in states that had declined to create exchanges was against the law, and it had resulted in actual harm to them.

In one of the lower court rulings on this issue, the DC Circuit concluded that the law offered no clear basis for issuing subsidies through the federal exchange.

If Congress intended to issue subsidies through the federal exchange, it would have been perfectly easy for them to say so, in any number of sections. And if Congress intended to treat the federal exchange as though it were a State entity (as the ACA does with US territories’ exchanges), it knew how to do that too. Yet there is no section of the law that does this.

Some argued that this omission was a “drafting error,” a legislative slip-up. If so, it was one it made over and over again, in at least ten different sections. And, as Michael Cannon rather pointedly asks, if it was a drafting error, why didn’t the government make that case in court? Why didn’t the IRS make that claim when they issued the new rule?

The answer may be that the law meant what the law says. The scant legislative history on this question doesn’t show that Congress ever thought that subsidies were going to be disbursed through the federal exchanges. Perhaps the law’s authors simply didn’t think about it or did not consider the possibility that most states would refuse.

But, in fact, it is entirely plausible that the ACA’s authors intended to only offer subsidies to residents of states that created exchanges, as an incentive to states to build and run them.

The reasons why Congress wanted the states to run the exchanges are perfectly clear. But, apart from the possibility of losing the subsidies, there seems to be little reason for state governments to take the risk of building one of the notoriously dysfunctional exchanges if they could dump their citizens onto the federal exchange with no consequences.

Jonathan Gruber, an MIT economist who was involved in the design of the health care law, explicitly claimed that the law’s authors did this on purpose:

If you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.

On the other hand, the government argued (and Roberts accepted) that the text of the law is ambiguous, and ambiguous phrases should be interpreted “in their context and with a view to their place in the overall statutory scheme,” the goal of which was to increase health insurance coverage.

Given that, Roberts concludes, we should construe “exchange established by the State” to mean any ACA exchange, whether Federal or State.

Roberts got to this reasoned, methodical, and preposterous conclusion by arguing that the plain meaning of the text would lead to “calamitous results” that Congress meant to avoid. To wit, that only allowing subsidies for plans purchased on state exchanges would cause a “death spiral” in the insurance market in states that refused to establish exchanges.

The ACA reform has three basic components: subsidies for insurance plans, the individual mandate to purchase insurance, and regulations requiring insurers to issue coverage to people with preexisting conditions (“guaranteed issue”) and banning them from charging higher premiums to sicker people (“community rating”).

The “death spiral” logic goes:

  • If states chose not to establish exchanges, their residents would not get subsidies;
  • If they couldn’t get subsidies, many people would be exempt from the insurance mandate;
  • If they were exempt, they could just wait until they got sick to buy insurance;
  • If they did that, insurers would have to accept them, under the guaranteed issue rule;
  • If that happened, the price of insurance would go up for everyone, under community rating;
  • If that happened, more healthy people would drop out of the insurance market, leaving insurers with a pool of ever sicker and more expensive patients (“adverse selection”), thus forcing insurers out of business and leaving even more people without insurance. And so on.

Hence, “death spiral.” In fact, this is exactly what happened in the 1990s in many states with guaranteed issue and community rating, before Massachusetts invented the mandate to force people to buy insurance and keep the pool of insured people relatively healthy.

But in the ACA, the mandate rests on the cost of insurance with subsidies, and (under the plain text of the law) the subsidies rest on the states establishing exchanges. If the subsidies go, fewer people will buy insurance, and the mandate crumbles, leading to a spiral of higher costs and fewer people insured.

Roberts concluded that this risk would have been unacceptable to Congress, arguing: “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner.”

This perceived implausibility, combined with the alleged ambiguity of the text, caused the Court to rule in favor of the subsidies:

Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.

The basic problem with Roberts’ decision is that the text isn’t ambiguous. It’s actually pretty clear, as he acknowledged. But the second issue is that Roberts has no strong basis for his speculations about what Congress thought was likely to happen with states or what risks it was willing tolerate.

If the ACA’s authors thought (as almost everyone did) that the states would get with the program and establish their own exchanges, there is no reason that they would have assumed a serious risk of a death spiral. In fact, Gruber suggested that was the plan all along: offer a carrot to the states (the subsidies) and a stick (the risk of screwing up their insurance market).

But more importantly, the “implausible” risk that Roberts bases his interpretation on is precisely what the ACA deliberately did to US territories by imposing guaranteed issue and community rating without an individual mandate.

The DC Circuit Court that ruled against the subsidies last year made exactly this point:

The supposedly unthinkable scenario … one in which insurers in states with federal Exchanges remain subject to the community rating and guaranteed issue requirements but lack a broad base of healthy customers to stabilize prices and avoid adverse selection — is exactly what the ACA enacts in such federal territories as the Northern Mariana Islands, where the Act imposes guaranteed issue and community rating requirements without an individual mandate.

This combination, predictably, has thrown individual insurance markets in the territories into turmoil. But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements, recognizing that, “[h]owever meritorious” the reasons for doing so might be, “HHS is not authorized to choose which provisions of the [ACA] might apply to the territories.”

But, it seems, the Supreme Court feels that is authorized to choose what provisions of the ACA should apply, on the grounds that doing so would make better policy, regardless of what the law actually requires.

This is essentially what Roberts did in the previous Obamacare ruling, in which he rewrote the individual mandate and the Medicaid portions of the law in order to make them pass constitutional muster.

In his scathing dissent, Justice Scalia noted,

Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.”

This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

… This Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.

This decision is not disastrous because it “saved” Obamacare — it did no such thing: The Court gutted the law and let the Obama administration stuff it with whatever policy it thought best.

No, the ruling is a catastrophe because it establishes the principle that the president can unilaterally override the plain meaning of the law whenever he or she thinks that doing so will lead to a better outcome, one more in keeping with his or her policy goals.

As is often the case with elaborate government programs, things didn’t turn out the way that the planners expected. And, once again, the Supreme Court allowed the government to skate around both the Affordable Care Act and the law of unintended consequences.

This decision sanctifies the administration’s decision to defy Congress, circumvent the states, and flout the law. And as the authors of Obamacare knew, if you subsidize something, you’ll get more of it. Expect this ruling to stimulate more sloppy legislation, executive overreach, and subversion of the rule of law.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

What Can the Government Steal? Anything It Pays For! by Daniel Bier

“…Nor shall private property be taken for public use, without just compensation.” – Fifth Amendment to the U.S. Constitution 

On Monday, I wrote about the Supreme Court’s decision in the case of Horne v. USDA, in which the Court ruled almost unanimously against the government’s attempt to confiscate a third of California raisin farmers’ crops without paying them a dime for it.

The confiscation was part of an absurd FDR-era program meant to increase the price of food crops by restricting the supply; the government would then sell or give away the raisins to foreign countries or other groups.

Overall, this ruling was a big win for property rights (or, at least, not the huge loss it could have been).

But there’s one issue that’s been overlooked here, and it relates to the Court’s previous decision in Kelo v. City of New London, the eminent domain case that also just turned 10 horrible years old yesterday.

In Horne, eight justices concluded that physically taking the farmers’ raisins and carting them away in trucks was, in fact, a “taking” under the Fifth Amendment that requires “just compensation.”

That sounds like common sense, but the Ninth Circuit Court of Appeals had ruled that the seizure wasn’t a taking that required compensation because, in their view, the Fifth Amendment gives less protection to “personal property” (i.e., stuff, like raisins or cars) than to “real property” (i.e., land).

The Court thankfully rejected this dangerous and illogical premise.

But while eight justices agreed on the basic question of the taking, only five agreed on the matter of just compensation.

The majority concluded that the government had to pay the farmers the current market value of the crops they wanted to take, which is standard procedure in a takings case (like when the government wants to take your home to build a road).

Justices Breyer (joined by Ginsburg and Kagan) wrote a partial dissent, arguing the federal government’s claim that the question of how much the farmers were owed should be sent back to the lower court to calculate what the farmers were owed.

Their curious reasoning was that, since the government was distorting the market and pushing up the market price of raisins, they should be able to subtract the value the farmers were getting from the artificially inflated price from the value of the raisins that were taken. The government argued that the farmers would actually end up getting more value than was taken from them, under this calculation.

Chief Justice Roberts, writing for the majority, derided this argument: “The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach.”

But the most interesting part of this subplot came from Justice Thomas. Thomas fully agreed with Roberts’ majority opinion, but he wrote his own a one-page concurrence on the question of how to calculate “just compensation,” and it went right at the heart of Kelo.

In Kelo, a bare majority of the Court ruled that the government could seize people’s homes and give them to private developers, on the grounds that the government expected more taxes from the new development.

Marc Scribner explains how the Court managed to dilute the Fifth Amendment’s “public use” requirement into a “public purpose” excuse that allows the government to take property for almost any reason it can dream up.

Thomas’s concurrence disputes Breyer’s argument about calculating “just compensation” by pointing out that, had Kelo had been correctly decided, the government wouldn’t be allowed to take the farmers’ crops at all — even if it paid for them.

Thomas wrote (emphasis mine),

The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.”

And quoting his dissent in Kelo:

That requirement, as originally understood, imposes a meaningful constraint on the power of the state — ”the government may take property only if it actually uses or gives the public a legal right to use the property.”

It is far from clear that the Raisin Administrative Committee’s conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments.

To the extent that the Committee is not taking the raisins “for public use,” having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise.

Unfortunately, Chief Justice Roberts is already writing as though the “public use” requirement was a dead letter, writing at one point in his opinion: “The Government correctly points out that a taking does not violate the Fifth Amendment unless there is no just compensation.”

But that isn’t true. A taking violates the Fifth Amendment, first and foremost, if it is not taken for “public use.” And confiscating raisins and giving them to foreign governments in order to keep the price of raisins in the United States artificially high does not, in any sane world, meet that standard.

What Thomas didn’t say, but clearly implied, was that the Court should have struck down the raisin-stealing scheme entirely, rather than just forcing the government pay for the crops it takes.

The Horne decision was good news, but it didn’t go far enough by actually imposing a meaningful limit on what counts as “public use.” The Court could have done that in this case, by overturning Kelo or at least adding somelimitations about what governments can lawfully take private property for.

Happily, Justice Thomas isn’t throwing in the towel on Kelo, and Justice Scalia has predicted that the decision will eventually be overturned.

So can the government still take your property for no good reason? Yes, for now. But at least they have to pay for it.

That’s not nothing. And for raisin farmers in California, it’s a whole lot.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

The Left Will Always Blame the GOP on Obamacare

With the 2016 elections right around the corner, conservatives must begin immediately preparing to rebut the massive Democratic Party/mainstream media, symbiotic messaging operation. I read a piece this week by the Washington Post’s Greg Sargent that summarizes the far Left’s new Obamacare messaging strategy in the event of a Supreme Court loss in the King v. Burwell (Obamacare subsidies) case.

Here is a short summary of where we are. The far Left is terrified that the Supreme Court is going to rule against the Obama administration in King v. Burwell, essentially voiding the Obamacare subsidies in the states using the federal exchange even though the legislative language in the law regarding the “subsidies” was written this way to punish states for failing to set up state exchanges. The far Left and the Obama administration are disputing this point despite clear, videotaped evidence of Professor Jonathan Gruber, one of Obamacare’s lead architects, stating otherwise.

Now, the Obama administration has never let videotaped evidence of their prior contradicting statements dissuade them from continuing to lie to the American people (i.e. “If you like your plan, you can keep your plan. Period.”) but, in this case, their lies are especially egregious because their plan to withhold subsidies from states that refused to set up a state exchange was designed to punish the citizens of that state for not complying with Obamacare. When the punishment backfired because of public opposition to Obamacare, and support for the governors and legislators who refused to comply with its exchange language only increased, they went with plan B: lie. As usual, after their strategic miscalculation they are desperately trying to find a way to blame Republicans for this disaster, although not one Republican in the House or Senate voted for the final version of Obamacare.

The far Left’s messaging strategy to avert political disaster because of their tactical miscalculation regarding the Obamacare subsidies is to say that the Republicans have “taken away” the subsidies and pin the blame on Republicans if the court rules against the Obama administration. But, here’s the catch; the Dems destroyed our already-troubled healthcare system all by themselves by unilaterally supporting Obamacare. The reason the Obamacare “subsidies” (which are your tax payer dollars given back to you after the government takes a cut) are necessary is because insurance costs are exploding because Obamacare forces Americans to buy expensive insurance they do not want and do not need. And the reason these “subsidies” may be taken away is because the Democrats unilaterally wrote and passed the law this way to punish Americans for resisting this legislative debacle.

Unsurprisingly, when you combine the mandate to purchase health insurance policies, which included multiple unwanted and unneeded services with the community rating and guaranteed issue provisions designed to redistribute costs according to government edicts, you have a recipe for explosive healthcare cost growth. Of course, none of this was a mystery to the Republican Party when they warned America about the coming storm of healthcare premium hikes, a warning the mainstream media largely downplayed to ensure the “wizard” stayed well-hidden behind the curtain.

So here it is in a nutshell: Obamacare was shoved down your throats using parliamentary trickery. Obamacare forced you to buy expensive insurance you don’t want or need at dramatically inflated costs to compensate for the redistributive, big-government, effort to price-control the health insurance market. Obamacare taxed you to gather a honey pot of money. Obamacare then used this honey pot of taxpayer money to “give back” to Americans to pay for their new, and more expensive insurance.

You will never fix this legislative disaster by doubling down on absurdity. The economics won’t work because they can’t work. The Republican Party must prepare their counter message right now to explain to the American people the horrible tsunami that Obamacare has created. If we allow the far Left to continue to distort markets, engage in massive income redistribution operations, and instill more big-government coercion schemes to force compliance on the American people by simply pledging to prolong the misery by “fixing” the subsidy system and continuing the misery, then we are no better than the president who lied to us to sell us this jalopy.

EDITORS NOTE: This column originally appeared in the Conservative Review. The feature image of the Supreme Court building is by Tom Williams | AP Photo.

Supreme Court Rules 8-1: Government Has to Pay You If It Steals Your Stuff by Daniel Bier

California raisin farmers Laura and Marvin Horne will finally get paid for the 600,000 pounds of raisins the feds tried to steal from them over 10 years ago.

The Supreme Court delivered its opinion today in the case of Horne v. Department of Agriculture, and it is a big win for property rights and stinging rebuke of the government.

The story starts with something called the “Raisin Administrative Committee” (a surreal government agency that sounds like it belongs next to the Ministry of Silly Walks in a Monty Python sketch).

The Raisin Committee was created by a law passed during Great Depression meant to jack up the price of food crops.

In 2002, the committee tried to seize nearly half of the Hornes’s raisins and pay them even less than what it cost to grow them. The next year, it ordered them to hand over a third of their raisins in exchange for… nothing.

A brief filed by the Cato Institute explains:

Thus, a New Deal program whose raison d’être was to lift prices above “the cost of production” now forces raisin farmers to fork over the (dried) fruits of their labor with no hope of even covering their expenses.

Year in and year out, the Committee takes farmers’ crops without providing just — or sometimes any — compensation.

The Hornes refused to obey the orders, thinking that, well, this is America and the government can’t just steal your stuff.

The Department of Agriculture sent trucks to their farm one morning intending to confiscate their raisins, but the Hornes refused to let them in. The USDA was not happy. It claimed that not only can it take your property without paying you for it, it can also make you pay for not handing it over — and the Hornes were slapped with almost $700,000 in fines.

The Hornes sued under the 5th Amendment, which clearly states “nor shall private property be taken for public use, without just compensation.”

The 9th Circuit Court of Appeals ruled against the Hornes, arguing two absurd things: first, that the government physically picking up the raisins, putting them in trucks, and carting them away doesn’t count as a “taking.” Instead, it was just a “use restriction” on “interstate commerce.”

Second, the 9th Circuit claimed that the Constitution gives less protection to “personal” property (i.e., things) than it does to “real” property (i.e., land). Combined with the fact that the government might, at some future date, decide to pay something for the raisins it took, this meant that the Hornes might not lose all of the value of their crop, and so it wasn’t really a “taking.”

The Supreme Court finally ruled on the merits, voting 8-1 for the Hornes and utterly repudiating the government and 9th Circuit’s arguments.

The first question before the Court was “whether the government’s ‘categorical duty’ under the Fifth Amendment to pay just compensation … applies only to real property and not to personal property.”

Writing for the majority, Chief Justice Roberts responded bluntly: “The answer is no.”

Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.

… The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government.

Roberts wrote that “the speculative hope” that the government might someday give the Hornes something for their raisins did not in any way change the fact that the government was depriving them of their “rights to possess, use and dispose of” their property.

The second question was whether the government could escape its duty to pay just compensation by giving the property owner a “contingent interest” in a “portion of the value of the property, set at the government’s discretion.”

Roberts: “The answer is no.” The fact that property owners might get back some tiny portion of the economic value of their property if the government decides to sell it does not mean the government can get out of paying them just compensation for it.

The third question was whether it still counts as a “taking” under the 5th Amendment if the government requires businesses to hand over their property as a “condition” of engaging in commerce.

Roberts: “The answer, at least in this case, is yes.” The government has to pay you for taking your property, even if it’s taking property under the excuse of regulating commerce.

The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.”

“Let them sell wine” is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law.

Finally, the government tried a last ditch argument: that if the Court rules that they have to pay the Hornes for their raisins, they should have to go through yet another court case to calculate what the value of the raisins would have been without the government raisin program.

The Government contends that the calculation must consider what the value of the reserve raisins would have been without the price support program, as well as “other benefits … from the regulatory program, such as higher consumer demand for raisins spurred by enforcement of quality standards and promotional activi­ties.” …

The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach, or its notion that general regulatory activity such as enforcement of quality standards can constitute just compensation for a specific physical taking.

Instead, our cases have set forth a clear and administrable rule for just compensation: “The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking.’”

Justices Ginsburg, Kagan, and Breyer disagree with the majority opinion that the government should have to pay the market value of the raisins, saying the Hornes should have to prove what the price of raisins would be if the government wasn’t distorting the market by seizing half of the raisin crop.

But eight of the nine justices agreed with the basic points: that “personal property” counts the same as land under the 5th Amendment, and that seizing the raisins requires “just compensation,” even if it is just a “condition” of selling raisins in the market.

This decision is a body blow to one of the most idiotic government programs left over from the New Deal; let’s hope Congress pays attention and abolishes the Raisin Administrative Committee entirely.

But the ruling also has large ramifications for property rights and free markets generally. It utterly refuted the government’s claims about the power of the Commerce Clause and the limits of the Takings Clause, and it should be viewed as a resounding victory for the rights to property and to business.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

D.C. Court Affirms pro-Israel Z Street Case against IRS

Today, the DC Circuit Court of Appeals ruled in favor of pro-Israel group Z STREET on the grounds of viewpoint discrimination by the IRS violating the First Amendment.  The Opinion of the DC Circuit Court clears the way for Z STREET to proceed with discovery in its case against the IRS.

The Power Line Blog noted these comments of Z STREET:

Z STREET looks forward to the discovery phase of litigation in which it will seek to learn the nature and origin of the “Israel Special Policy” which the IRS applied to Z STREET’s tax exemption application. Z STREET will seek to learn how such a policy was created, who created it, who approved it, to whom it was applied, as well as all other information regarding this policy.

A series of IRS documents called “Be On the LookOut” lists, which were released by Congress in June, 2013, pursuant to the TIGTA investigation, have already established that, as Z STREET alleges, while Z STREET’s application for tax exempt status was pending, the IRS did indeed create a special category of review for organizations seeking such status, if they were engaged in what the IRS called “occupied territory advocacy.”

Z STREET looks forward to using the discovery process to learn more about the precise nature, origin and effect of this policy, which the DC Circuit has now made clear is a violation of essential Constitutional rights.

In a May 7th , 2015  Iconoclast post on the arguments before the DC Circuit, it was clear that the Circuit Judges were displeased with brief filed by the IRS Counsel.   We wrote about the background for today’s important ruling:

It’s hard enough being a Zionist in the US, given a passive Jewish community supine under the sway of Obama Administration isolating Israel. Z STREET, where I am a member of its board, has fought a special process by the IRS sidelining its application for 501 ( c) (3) status because- get this- it advocates for an ally where terrorism occurs against it. Call that ultimate chutzpah, and you might come close it what it is.   That is absurd. However, that is at the heart of the viewpoint discrimination issue under the First Amendment successfully argued in the filing made by Z STREET’s counsel. The IRS had unsuccessfully fought in the DC Federal District court to dismiss the Z STREET case  in  May 2014. The lower Court  granted  discovery to Z STREET on the grounds of viewpoint discrimination.  The  IRS appeal  of the lower court ruling granting discovery was heard at a D.C.  Circuit Court  of Appeals  oral arguments proceeding  on May 4, 2015.  The three judge Appellate panel virtually raked over the coals the IRS counsel and leadership of the federal tax agency, several  of whom were in court witnessing  their upbraiding .    A May 7, 2015  Wall Street Journal  editorial lambasted the IRS and  the Justice Department for violating the First Amendment rights of Z STREET , “The IRS Goes to Court”.  The tag line says it all: “The agency suggests it can discriminate for 270 days. Judges gasp.”

In an opinion filed today on the matter of Z Street v Koskinen. Commissioner of Internal Revenue Service, DC Circuit Judge David Tatel affirmed the arguments presented by  Z Street’s  Counsel,  Jerome Marcus.  Below is  a summary of  the Opinion filed by Judge Tatel:

USCA Case #15-5010 Document #1558566    6-19-2015

Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by

Circuit Judge TATEL:

Z Street, a nonprofit organization devoted to educating the public about Zionism” and “the facts relating to the Middle East,”applied for a section 501 (c )(3) tax exemption. Based on a conversation its lawyer had with an IRS agent, Z Street alleges that the agency has an “Israel Special Policy” under which applications from  organizations holding “political views inconsistent with those espoused by the Obama administration” receive increased “scrutiny[y]” that results in such applications “tak[ing] longer to process than those made by organizations without that characteristic”.

”Z Street sued the Commissioner, alleging that the “Israel Special Policy” violates the First Amendment. The Commissioner moved to dismiss, arguing that the action is barred by the Anti Injunction Act, which prohibits suits to “restrain[] the assessment or collection of any tax.” The district court, assuming the truth of Z Street’s allegations—as it must at this stage of the litigation—denied the motion explaining that Z Street was not seeking to restrain the “assessment or collection” of a tax, but rather to prevent the IRS from delaying consideration of its application in violation of the First Amendment. We affirm.

Consider this the lengths to which the Administration will go to deny pro-Zionist views  opposing groups like J Street , Jewish Voices for Peace, Peace Now; all with IRC 501 (c ) (3)  tax exemptions. The irony is that these groups are pursuing BDS, delegitimization and demonization of the Jewish nation of Israel, America’s only democratic ally in the Middle East.

EDITORS NOTE: This column originally appeared in the New English Review.

Those Clinton Women

Listening to the reports of obscene speaking fees earned by Bill and Hillary Clinton… Bill commanding fees of from $500,000-750,000 a speech and Hillary demanding $200,000-300,000, along with private jets and presidential suites… I turned to my wife and said, jokingly, “What do you suppose Chelsea gets for a thirty or forty minute speech?”

In her lifetime, Chelsea Clinton has had a front row seat to more corruption and more sexual excess than an aging mob-connected porn star, so it might be interesting to hear what she has to say… if she could be totally candid.  And while we enjoyed a brief chuckle over the silly notion that a young woman of her age and inexperience would have anything interesting to say, I couldn’t help but wonder what it would be like to hear her drone on and on for thirty or forty minutes about her recent domestic battles with colic and diaper rash while suffering through a $500 plate of cold string beans, soggy au gratin potatoes, and “rubber chicken.”

But then it occurred to me that she is only slightly less experienced than her mother’s former boss, Barack Obama, and he’s sitting in the Oval Office making big decisions on my behalf.  So if people would be dumb enough to vote for her mother or for Barack Obama as president of the United States, and if there are those who would actually pay hundreds of thousands of dollars to hear one of the elder Clintons speak, well, who knows…?

Chelsea Clinton was born on February 27, 1980, early in her father’s first term as governor of Arkansas and almost five years after her mother was fired from the staff of the House committee that impeached Richard Nixon.  She was fired when the chief of staff of the House Judiciary Committee described her as “an unethical, dishonest lawyer,” who “conspired to violate the Constitution, the rules of the House, the rules of the committee, and the rules of confidentiality.”

During her undergraduate years at Wellesley College, near Boston, Hillary became an admirer and a protégé of the evil mastermind of the Democratic Party playbook, Saul Alinsky.  In fact, Alinsky’s book, Rules for Radicals, was not only the subject matter of Hillary’s senior thesis at Wellesley, it has been the “bible” that has informed Barack Obama’s ideological evolution since his college years at Occidental, Columbia, and Harvard, and perhaps before.  To understand Alinsky’s utter disdain for American culture and the U.S. Constitution we need look no further than his ideological offspring, Hillary Clinton and Barack Obama, both of whom view the  U.S. Constitution as a document that means whatever they would like it to mean on any given day.

Chelsea was born just two years before her mother turned a modest $1,000 investment in cattle futures into a $100,000 profit in just one year… taking her trading advice from a lawyer for the largest corporation in Arkansas while her husband served as the state’s attorney general.  Then, in 1993, when Chelsea was twelve, her parents uprooted their criminal franchise in Arkansas and moved it from the governor’s mansion in Little Rock to the White House in Washington.

In November 1998, Senator Daniel Patrick Moynihan (D-NY) announced that he would not seek reelection to his senate seat in 2000.  It was Hillary’s signal that, after six years as first lady of the United States, and after washing her husband’s “dirty laundry” for nearly twenty-five years, it might be fun to represent the State of New York in the U.S. Senate.  However, as a lifelong resident of Chicago, Little Rock, and Washington, DC, her New York credentials were slightly “underwhelming.”  To solve that problem the Clintons purchased a 5,200 sq. ft. colonial mansion in Chappaqua, New York, for $1.33 million and Hillary embarked on an extensive “listening tour” to learn what was on the minds of people in upstate New York.

After winning the Democratic nomination, Hillary knew that white liberals and blacks would be with her, but she was less than popular in the Jewish community and totally unknown in New York’s large Puerto Rican community, so she concentrated on solidifying her support within those constituencies.

In the years between 1975 and 1985, a Puerto Rican terror group, the FALN, exploded some 120 bombs in public places, mostly in New York and Chicago.  In those bombings, six people were killed and dozens more, including police officers, were permanently maimed.  Sixteen FALN members were convicted and sentenced to prison terms ranging from 35 to 105 years.

But with Hillary combating charges of being one of the most shameless carpetbaggers of all time, the Clintons knew they’d have to “pull out all the stops” to win the New York senate seat.  Accordingly, on August 11, 1999, Bill Clinton commuted the sentences of all sixteen members of the FALN.  However, the commutations were not universally popular.  They were strongly opposed by the U.S. Attorney, the FBI, the Federal Bureau of Prisons, the Fraternal Order of Police, the families of FALN victims, and members of Congress (a resolution opposing the commutations passed the Senate by a vote of 95-2 and the House of Representatives by a vote of 311-41).  Nevertheless, Clinton proceeded with the commutations and the Puerto Rican community fell in line behind Hillary.

With the Puerto Rican vote in the bag, there was still work to be done in the New York Jewish community.  Late in her campaign, on August 8, 2000, Hillary visited the small Rockland County village of New Square, New York, a community of orthodox Hasidic Jews, where members of the local community had their tzitzits in a knot over the 1999 conviction of four Hasidic men charged with swindling the federal government out of some $40 million in education grants, small-business loans, and housing subsidies.

Although Hillary is said to have been warmly received by local residents, it is not known what was discussed during her stopover.  However, what is known is that on Election Day, November 7, Hillary won New Square by a vote of 1,359 to10, and that, six weeks later, on December 22, 2000, Grand Rabbi David Twersky of the New Square congregation, participated in a closed door meeting with Bill Clinton in the White House Map Room.  And although it is quite possible that the two men discussed nothing more than Clinton’s preference in cigars, the meeting had a positive outcome for the Jews of New Square.  On his last day in office, Bill Clinton reduced the

prison sentences of the New Square Four from as much as 6½ years to no more than 2½ years.

From the outset, not everyone in the Rockland County Jewish community was optimistic that a pardon for the New Square Four could be arranged.  What they failed to understand is that, when Bill and Hillary Clinton “pull out all the stops” to win an election, they don’t worry much about legal or political repercussions.

And now comes 34-year-old Chelsea Clinton Mezvinsky (Mrs. Marc Mezvinsky), the daughter of former president Bill Clinton and former secretary of state Hillary Rodham Clinton, and the daughter-in-law of former congressman Ed Mezvinsky (D-IA) who pled guilty in 2001 to thirty-one counts of obtaining nearly $10 million through bank fraud, mail fraud, and wire fraud.

When most of us sit down to dinner with our extended families we might be able to discuss the few traffic tickets we’ve received over the years.  But when Chelsea and her husband sit down to dinner with their parents they are sitting down with people who have first-hand experience with bank fraud, bribery, concealing evidence, conspiracy, contempt of court, evidence tampering, extortion, influence peddling, lying to federal investigators, mail fraud, money laundering, obstruction of justice, official secrets act violations, Pendleton Act violations, perjury, rape, sexual assault, subornation of perjury, theft of government property, vote fraud, wire fraud, witness tampering… and more.

After leaving her $600,000 per year job as a special correspondent for NBC News in August 2014, Chelsea was taken into the family business as vice-chairman of the Bill, Hillary, and Chelsea Clinton Foundation.  However, according to a July 10, 2014 Associated Press story by Ken Thomas, she is represented, along with her father and mother, by the Harry Walker Agency, in New York, which arranges speaking engagements for notable such as former vice president Dick Cheney, former senator Rick Santorum, and former governor Arnold Schwarzenegger.  And while the Washington Speakers Bureau reports that speakers such as former senators Bill Bradley (D-NJ) and Christopher Dodd (D-CT), earn $25,000 to $40,000 per speech, the AP reports that Chelsea Clinton commands speaking fees as high as $75,000.

But it appears that all is not roses at the Clinton Foundation.  It is reported that Foundation staff find Chelsea as difficult and unpleasant to work with as Arkansas State Patrolmen, the Secret Service, and White House staff did with her mother… resulting in an unusually high turnover of Foundation staff.

According to a May 19 report by James Dunn, of Mailonline, “A lot of people left because she was there.  A lot of people left because she didn’t want them there.”  Dunn reports that among those “displaced” since she arrived are former CEO Bruce Lindsey (former White House chief of staff who lied so frequently and so convincingly that he was able to keep Bill Clinton out of jail); Chelsea’s former spokesman, Matt McKenna; and Ginny Ehrlich, the founding CEO of the Clinton Health Matters Initiative.

First indications are that the apple does not fall far from the tree.  But with a charming, affable philanderer for a father and a cold, calculating shrew for a mother, what are we to expect?  If there is such a thing as “genetic disposition,” the long term prospects for Chelsea Clinton are not good.  Let’s hope that is not the case and that, for Marc Mezvinsky’s sake, the Clinton women turn out to be polar opposites.

Hillary to Stand Trial!

Hillary Clinton has been ordered to stand trial for racketeering. A great day for America.

There Is No “Nationwide Crime Wave” — But Baltimore Is in Trouble by Daniel Bier

Heather McDonald’s Wall Street Journal op-ed “The New Nationwide Crime Wave” has exploded into the debate over police misconduct and criminal justice reform like a flash-bang grenade. It’s been discussed on numerous talk radio and cable news shows, and it’s been shared nearly 40,000 times on social media.

It’s a story engineered to go viral: It has a terrifying premise (crime everywhere is spiraling out of control!), a topical news hook (it’s all because of protesters!), a partisan bad guy (it’s all liberals’ fault!), and a weapons-grade dose of confirmation bias.

But there is no nationwide crime wave. It is completely manufactured by cherry picking data and misleading stats.

McDonald selects a handful of cities and quotes statistics to show that crime is exploding in “cities across America” this year:

In Baltimore… Gun violence is up more than 60% compared with this time last year, according to Baltimore police, with 32 shootings over Memorial Day weekend. May has been the most violent month the city has seen in 15 years.

In Milwaukee, homicides were up 180% by May 17 over the same period the previous year. Through April, shootings in St. Louis were up 39%, robberies 43%, and homicides 25%. …

Murders in Atlanta were up 32% as of mid-May. Shootings in Chicago had increased 24% and homicides 17%. Shootings and other violent felonies in Los Angeles had spiked by 25%; in New York, murder was up nearly 13%, and gun violence 7%.

Does this blizzard of numbers show a “nationwide crime wave”? No.

As John Lott points out at FoxNews.com,

Overall, the 15 largest cities have actually experienced a slight decrease in murders. There has been a 2 percent drop from the first five months of 2014 to the first five months of this year. Murder rates rose in eight cities and fell in seven. There is no nationwide murder wave.

Murder rates fell dramatically in some of these cities. Comparing this year’s January-to-May murder data with last year’s, we find that San Jose’s murder rate fell by a whopping 59 percent; Jacksonville’s fell by 31 percent; Indianapolis’ by 28 percent; San Antonio’s by 25 percent; and Los Angeles’ by 15 percent.

Even in the cities where murder is up compared to 2014, other categories of crime are down. New York, for instance, has had more murders but fewer burglaries and robberies. LA’s other violent crimes may be up, but murder is down.

She also implies that police are being attacked and killed more than ever: “Murders of officers jumped 89% in 2014, to 51 from 27.”

This 89% statistic is a deeply misleading view of the facts. Yes, 51 officers were murdered in 2014, compared to 27 in 2013. But 2013 was the safest year for police since World War II. It had the fewest shooting deaths for police since1887.

If you compare 2014’s 51 murders to other recent years, it’s not exceptional. In 2012, there were 48 officers killed. In 2011, it was 72. Over the last couple decades, the rate of police murders (and indeed work-related deaths from all causes) have fallen by nearly half, as have assault and injuries of police.

There’s another reason why McDonald quoted last year’s statistics for officer deaths when all of her other figures come from this year: officer shootings are down 27% so far this year.

Just like her other statistics, if she had given any context at all to the 89% figure, it wouldn’t have fit with her narrative of rising violence.

But never mind — as the author of this story, McDonald knows the cause of this fictitious trend: the “Ferguson Effect.”

The most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.

By her account, an “incessant drumbeat against the police” is behind the nonexistent “wave” of crime and violence against cops.

But this is also a myth. Public support for police has not waned. Gallup’s polling shows that confidence in law enforcement has been steady since the early 1990s.

That hasn’t changed, even after the protests against police abuse around the country. A Huffington Post/YouGov survey from April 2015 showed that 61% of Americans have a “great deal” or a “fair amount” of trust in their local department; 21% said “not very much,” and only 14% had “none.”

There is no national crime wave. Big cities are not facing a “surge of lawlessness.” There is no “war on cops.” The public hasn’t turned against the police.

So what’s going on in Baltimore? McDonald isn’t wrong about the spike in crime there. Baltimore City really is facing a breakdown in law and order.

Alex Tabarrok notes that police have made 40% fewer arrests since the start of the protests and the filing of criminal charges against six cops involved in Freddie Gray’s death.

As arrests have declined, crime has soared.

Tabarrok writes,

Not all arrests are good arrests, of course, but the strain is cutting policing across the board and the criminals are responding to incentives.

Fewer police mean more crime. As arrests have fallen, homicides, shootings, robberies and auto thefts have all spiked upwards.

Homicides, for example, have more than doubled from .53 a day on average before the unrest to 1.35 a day after (up to June 6, most recent data) – this is an unprecedented increase – and the highest homicide rate Baltimore has ever seen.

It’s not just murder. Shootings are up over 250%. Robberies are up 64%. Car thefts are up 42%.

It’s reasonable to assume that the increase in crime is at least partially related to the decline in police activity — criminals respond to incentives just like everyone else — but why aren’t police making arrests?

The answer might be found in the “De Blasio Effect.”

New York saw a similar “work stoppage” — that is, an unofficial strike — by the NYPD during its feud with Mayor De Blasio over his critical comments about the death of Eric Garner.

The NYPD retaliated: Arrests fell by 56% and criminal summonses fell by 92%, until the mayor made up with the department and police work resumed.

Kevin Drum speculates that BPD’s precipitous decline in arrests is a similar reprisal against the indictment of the officers involved in Freddie Gray’s death.

It’s certainly possible that has something to do with it, but officers appear to be genuinely spooked. About 130 cops were injured in the riots — that’s about 4.5% of the city’s officers down over the course of a week. That’s almost twice the rate of injury the average department sustains in a whole year.

Cops are understandably worried. Peter Moskos, a former BPD officer, says, “In Baltimore today, several police officers need to respond to situations where formerly one could do the job. This stretches resources and prevents proactive policing.”

There’s another issue: when crime spikes, police can be overwhelmed. Cases build up, and as new reports pour in, less and less time can be devoted to the old ones.

Most murders in Baltimore this year have gone unsolved. BPD’s clearance rate for homicides has fallen to just 40%, and the surge in killings can only make things worse.

Police Commissioner Anthony W. Batts said the rise in killings is “backlogging” investigators, just as the community has become less engaged with police, providing fewer tips.

Tabarrok is worried that a new equilibrium for crime could emerge in Baltimore. If crime continues to rise, clearance rates will fall further, detectives will get more backlogged, and it gets even harder to solve the next case. And if the probability of being caught and punished goes down, criminals will commit more crimes.

With luck the crime wave will subside quickly but the longer-term fear is that the increase in crime could push arrest and clearance rates down so far that the increase in crime becomes self-fulfilling. The higher crime rate itself generates the lower punishment that supports the higher crime rate

It’s possible that a temporary shift could push Baltimore into a permanently higher high-crime equilibrium. Once the high-crime equilibrium is entered it may be very difficult to exit without a lot of resources that Baltimore doesn’t have.

Some people see criminal justice reform as being anti-cop or “soft on crime,” but it’s not. Reform enables police to do a better job, which reduces crime — and that makes them and their citizens safer.

The best thing that Baltimore can hope for is that cops get back to work and start solving crimes. The best way to do that is for the community to engage with law enforcement.

Communities’ trust in police is key to fighting crime, and right now the BPD doesn’t have it. The Baltimore Sun has documented in excruciating detail the department’s history of corruption and excessive force, writing: “The perception that officers are violent can poison the relationship between residents and police.” And that leads to tips not given, 911 calls not dialed, and witnesses failing to come forward.

Real, credible reform, combined with accountability for misconduct and a strong commitment to community safety, is the best and probably only way to rebuild the relationship between citizen and cop and to turn crime around in Baltimore. The city and the police must embrace the task; they won’t accomplish it without each other.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

Law Enforcement May Only Arrest White Anglo-Saxon Christians

During the 1960s the Department of Justice, FBI, state and local law enforcement were actively engaged in stopping “organized crime.” Organized crime was widely known to be run by Italian Americans. To fight organized crime, law enforcement at every level, profiled this particular ethnic group and because of that the Italian monopoly on crime was largely dismantled.

Today we have a new form of organized crime conducted by a variety of ethnic groups but they are not being profiled as were the Italian Americans. Rather citizens are witnessing certain groups given a “get out of jail free” pass by law enforcement. This new policy has taken years to become the new normal. Law enforcement targeting criminals by their ethnicity and links to crime is now forbidden. The new ethnically diverse groups involved in organized crime, or worse, including: blacks, Hispanics (drug cartels) and followers of Mohammed are considered immune from profiling.

An atmosphere has been created where in law enforcement is being restricted in whom it can and cannot profile and arrest from these ethnic groups regardless of the violation of the law.

A growing number of ethnic groups are becoming immune to arrest, regardless of their unlawful behavior.

Looking at events in cities such as Ferguson, Missouri, Baltimore, Maryland, New York City, New York and Boston, Massachusetts we begin to see a new pattern that works something like this:

  1. A law enforcement officer receives a call to a potential crime scene.
  2. The law enforcement officer responds to the call and accosts the person/persons violating the law.
  3. A struggle ensues, primarily due to person/persons resisting arrest.
  4. The person violating the law is either apprehended or shot.
  5. Riots ensue protesting the apprehension or shooting of the person violating the law.
  6. The elected officials side with the person violating the law, not the police officer.
  7. The law enforcement officer is prosecuted not the person who was the subject of the initial complaint.
  8. The law enforcement officer is suspended or resigns.
  9. Other law enforcement offices stop doing their jobs – enforcing the law.

The end result is that some ethnic groups become immune and are off limits for local, state and federal law enforcement to put under surveillance, investigate and arrest. Society begins to break down as equal justice under the law is replace with anarchy and violence caused by some against the many.

If you cannot profile the criminal then you are left with the only option remaining – profile the non-criminal.

Today it is more likely that law enforcement will profile a white Anglo-Saxon Christian than those who have a record of criminal activity. Headlines are filled with the arrests and prosecutions of citizens arrested who are seemingly anything but criminals. Politicians are more willing to prosecuting a Christian over refusing to bake a cake than stopping criminals from rioting and destroying property in some of our largest cities.

To understand this as a part of the growing persecution of Christians read my column titled “The Anti-Christian Coalition.” You will note that some of the members of the anti-Christian Coalition are being given de facto immunity by politicians and law enforcement.

RELATED ARTICLES:

How Philadelphia Law Enforcement Makes Millions By Seizing Cash and Property From Residents

There Have Been Six Terrorist Plots Since April Alone. How Concerned Should We Be?

Florida State Trooper injured, suspect dead in Cocoa-area shooting

One Man Who Marched with MLK Puts a New Spin on ‘Black Lives Matter’

CAIR’s Sexual Deviant Leader May Use The ‘Aisha Defense’

The Council On American Islamic Relations (CAIR) Orlando Regional Coordinator, Ahmad Abrar Saleem [pictured above], was nabbed by Lake County, FL law enforcement in a child-sex sting operation on 5/20/2015.  Mr. Saleem’s intended victim was a 12 year old girl.

Two charges were filed by the Lake County Sheriff’s Office against Mr. Saleem.  1.  “use of computer to seduce/solicit/entice a child to commit sex act.”  2. “Travel to seduce, solicit, lure a child to commit sex act.”  Bail was set at $100,000 for both offenses.

Ahmad Saleem’s bail was paid two days after his arrest so he is walking the streets until his arraignment on 6/15/2015 at 8:30 AM.

The Aisha Defense

I believe Ahmad Saleem should be locked up and off the streets for the next hundred years but here in America even this child molester is entitled to his day in court.

As a devout follower of Islam, Ahmad Saleem would be well within his rights to initiate the Aisha Defense.

The foundation of the Aisha Defense is centered on the example provided by Allah’s messenger Mohammad.  Islamic doctrine and theology teaches that Mohammad is a model for all mankind.

IqraSense.com a respected Islamic site states that Qur’an verse 33:21, “clearly tells mankind that Prophet Muhammad (s) was sent as a model for mankind to follow and the success in this life and the hereafter depends on following him.”

Therefore, Amad Saleem, has an obligation to follow the example of Mohammad to gain success in this life and the hereafter.  A clever lawyer could make the case that Mr. Saleem was not following his own will but was victim of the undue influence of Mohammad himself.

The weight of the ‘Aisha Defense’ rests on  the Hadith’s of Sahih Bukhari.  Hadith’s are the collections of the reports, teachings, deeds and sayings of the Islamic prophet Mohammad.  Sahih is an Arabic word that means authentic.  The Sahih classification  proceeds a Hadith of the highest level of authenticity and is second in importance only to the Qur’an.

The following Sahih Al-Bukhari Hadith tells of Mohammad marrying a young girl named Aisha at 6 years of age and consummating the marriage at 9 years of age.  Mohammad was reported to be either 53 or 54 years of age when Aisha was 9 years old.

A Sahih Bukhari Hadith Narrated by ‘Aisha says,  “that the Prophet married her (Aisha) when she was six years old and he consummated his marriage when she was nine years old, and then she remained with him for nine years (i.e., till his death). (Sahih Al-Bukhari, Volume 7, Book 62, Number 64; see also Numbers 65 and 88).”

Take a moment and let the gravity of this Hadith sink into your mind.  The practice of Muslim men taking child brides, following the example of Mohammad, is well documented and continues at an alarming rate today.

In a May 16, 2014 Washington Post article titled, “Muslim clerics  resist Pakistan’s efforts to end child marriage’ Naila Inayat goes into great detail of why child marriage is a current problem that needs to be condemned.

According to Ahmad Saleem’s bio, that has been scrubbed from CAIR Florida’s website, it says he is the son of Pakistani immigrants.  On Mr. Saleem’s arrest report it states he is still residing at his parents opulent Orlando home.

According to this Washington Post article and the Sahih Bukhari Hadith one could conclude Ahamad Saleem may have been influenced by the culture of his parents native Pakistan and/or Allah’s messenger Mohammad.

Conclusion

It is highly unlikely Ahmad Saleem and his defense lawyers will use the Aisha Defense.  By using the Aisha Defense, Ahmad Saleem will have to put Mohammad the Prophet of Islam on trial as well.

In this case, it would be tantamount to Ahmad Saleem slandering Mohammad to establish a moral equivalence for his sexually deviant behavior.  Under Islamic law anyone who slanders Mohammad can be charged with a capital offense.

Ahmad Saleem’s boss at CAIR, Hassan Shibly tweeted shortly after Saleem’s arrest, “Nothing is more painful than hearing those who were entrusted with protector our children betraying that trust. 0 tolerance 4 such wicked ppl.”  I agree with Hassan Shibly that Ahmad Saleem is ‘wicked’ for betraying the trust of children.  By association Mohammad is also “wicked” for betraying the trust of Aisha when he consummated his marriage with her at 9 years of age.  Does Hassan Shibly believe the messenger of Allah, Mohammad, is “wicked” for betraying the trust of the child Aisha at age 9?

RELATED ARTICLES:

The Duggars Next Door

Robert Spencer, FrontPage: Hamas-linked CAIR Rep. Arrested for Pedophilia

The Feds vs. Reason.com Commenters by Ryan Radia

Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat.

The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.

These comments came in response to a May 31 post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road.

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.

The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses — which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.

Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.

I too find it quite concerning. Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.

To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder — which, if transmitted in interstate commerce, is a federal crime under Title 18 USC. § 875.

Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.

Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States.

For instance, Ken Shultz notes that Martin Luther King, Jr., once said that “the hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?

As for the comments about shooting a federal judge, consider the Vietnam War-era prosecution of Robert Watts for “knowingly and willfully threatening the President.”

At age eighteen, Watts said that if he were forced to join the military and “carry a rifle,” then the “first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, finding that Watts had merely “indulged” in a “kind of political hyperbole.” Id. at 708.

Although these statements, like the Reason comments quoted above, are understandably offensive to many listeners, causing offense alone is no basis for outlawing speech. To the contrary, “a function of free speech under our system of government is to invite dispute,” as the Supreme Court has noted. Indeed, speech can sometimes “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

As for the hyperbolic comments posted on Reason about Judge Forrest, they are plainly not “true threats,” but mere “angry bluster,” as Ken White explains in detail.

The remarks, he notes, were not directed to the Judge, or reasonably calculated to reach her; instead, they appeared on a libertarian political blog notorious for its trash-talking commentariat. The comments lacked any specifics about a specific person’s plans to actually carry out an act of violence; instead, they merely expressed a general desire that a particular person be killed.

And while courts have held on occasion that hoping for someone’s death without evincing a desire to personally kill them can be a true threat, this requires some “causal connection” between the statement and the desired outcome. Again, the Reason comments don’t come close to meeting this threshold.

In short, even if the six Reason users are indicted on federal criminal charges, the First Amendment means the government is all but guaranteed to lose (barring the unlikely scenario the US Attorney’s office is sitting on some damning evidence it hasn’t disclosed).

If the commenters didn’t break the law, then, why can the government use its subpoena power to force Reason to hand over whatever personal information it’s collected about them? Because, as Ken White frets, the US Attorney’s power to issue grand jury subpoenas is so broad that, in most cases, they can be quashed only “when they are irrationally burdensome … or for an improper purpose.”

Moreover, a grand jury — which, again, is typically just another word for “federal prosecutor” — is afforded “wide latitude” in investigating potential crimes, and the “law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.”

And when a grand jury subpoena is “challenged on relevancy grounds the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”

What about a grand jury subpoena that implicates First Amendment interests?

In theory, “where values of expression are potentially implicated,” a district court should act with “special sensitivity” to “prevent the chilling effect” of “prosecutorial abuse,” in the words of the Fourth Circuit.

In practice, however, courts are extremely reluctant to quash a federal grand jury subpoena on First Amendment grounds. For instance, the District Court for the District of Columbia held in 2011 that “merely issuing a subpoena to uncover the identity of the speaker so that the police can ascertain whether a threat is valid cannot be deemed a Constitutional violation.”

Where does all of this leave us? Reason could move to quash the subpoena — or at least petition the court to limit its scope to identifying information about the more threatening commenters — on the basis that, absent additional evidence that its commenters’ identities are related in any way to some criminally actionable threat, enforcing the subpoena would undermine Reason commenters’ constitutional interest in anonymity while generating information of “negligible value to the government.”

However, because Reason probably could not show the US Attorney is acting in bad faith, or that complying with the subpoena would be unduly burdensome, Reason’s chances of prevailing if it chooses to fight back are not good. That’s a problem for all of us.

This piece first appeared at CEI.org.


Ryan Radia

Ryan Radia is an Associate Director of Technology Studies at the Competitive Enterprise Institute. He focuses on adapting law and public policy to the unique challenges of the information age.

Can the President Ignore the Supreme Court? by Randy E. Barnett

Another debate on the proper role of the judiciary has broken out on the interweb. Last time, the debate was over “judicial deference” vs. “judicial engagement.” This one is about “judicial supremacy.”

Michael Paulsen kicked off this round right here with his blog post “The myth of judicial supremacy,” in which he claimed that what he called “the recurrent myth of ‘judicial supremacy’ in constitutional interpretation” was “wrongly ascribed to the framing generation and to Marbury v. Madison.”

Then came Ed Whelan, who began his review of Paulsen’s book this way: “We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.”

Responding to this has been excellent posts by Michael RamseyIlya Somin and Evan Bernick. Ed then replied here and here.

I won’t reproduce the debate here, and merely wish to make a conceptual point and offer a bit of the historical evidence that I presented in my 2004 article, The Original Meaning of the Judicial Power.

Judicial Equality, not Supremacy

In some respects “judicial supremacy” – like “judicial activism” – is a deliberately loaded pejorative term. I agree entirely with the “departmentalist” vision identified by Paulsen and Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors.

So, if the Congress independently decides that a particular measure is beyond its enumerated powers or violates the rights of the people, it may decline to pass such a law regardless on whether the Supreme Court would uphold it. I made this argument to the Senate Judiciary Committee in its hearing about the constitutionality of the Affordable Care Act (video of my opening statement is here).

Likewise the president may veto a measure that he believes is unconstitutional, independent of the views of Congress or the courts, as Andrew Jackson did with the bill rechartering the second national bank (his veto message is here).

In this respect, the other branches are not “bound” by the views of the judiciary.

So, under this departmentalist vision, the Congress and President must agree that a measure is constitutional before it can become law (unless a supermajority of Congress overrides a veto).

Conversely, either the Congress or the President may prevent a law from being applied to the citizenry if either thinks the law is unconstitutional.

But if the Congress and President both agree that a measure is constitutional, must the judicial branch defer to that assessment?

In my view, the answer is “no.”

As a separate and co-equal branch of government, the judiciary gets to render its opinion on the constitutionality of a law, but only if the other branches first decide the measure is constitutional.

Because, as Evan Bernick points out, the judiciary’s concurrence that a law is constitutional is a function of its equality to the other branches, not its supremacy. And the judiciary only has the option to nullify or invalidate a law – it does not have the power to enact it.

This is why judicial nullification is not “legislating from the bench.” Judicial negation is not legislation. Only Congress has the “legislative power” to enact the law in the first instance. Should it refuse to enact it, the other branches have no proper constitutional power to do it in their stead. (This is why some of the recent “phone and pen” exercises of executive power are so constitutionally problematic.)

In short, the judicial power to invalidate a law because it is unconstitutional is a manifestation of judicial equality, not judicial supremacy. But this necessarily means that the law is void unless the judiciary concurs, and this judgment is then “binding” on the other branches, just as the other branches refusal to enact or sign a law is binding on the judiciary.

But is this view a modern invention? Hardly.

Evidence from the Founding

As Philip Hamburger demonstrates in his book Law and Judicial Duty, the term “power of judicial review” is an anachronism. At the founding, it was thought that judges had a duty to follow the law, and that the Constitution was a law that was higher than any statute, however popular.

The term “power of judicial review” was not used in Marbury v. Madison, but was invented by progressives in the 20th century, as they sought to undermine the legitimacy of the duty of judges to invalidate unconstitutional laws. They claimed that, unlike our duties, our “powers” should be exercised with “discretion” and “restraint.” But that is another and longer story.

To this, let me add some of the evidence I present at greater length in my article:

Several members of the Constitutional Convention in Philadelphia explicitly assumed that the power to nullify unconstitutional legislation resided in the judiciary even before they settled on the particular wording of the various clauses. Several statements were made in the context of a proposed power of Congress to nullify state laws. Roger Sherman of Connecticut argued that a such a power was “unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union…”

James Madison of Virginia favored such a negative because states “will accomplish their injurious objects before they can be . . . set aside by the National Tribunals.” He then cited the example of Rhode Island, where “the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature….”

Gouverneur Morris of Pennsylvania argued that the legislative negative was unnecessary because “A law that ought to be negatived will be set aside in the Judiciary department.” No one in this discussion disputed the power of the judiciary to set aside unconstitutional laws passed by states.

Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Much is made by critics of judicial review of the Convention’s rejection of the proposed council of revision, inferring from this refusal an intention of the framers that the judiciary defer to legislative will.

They rarely mention, however, that the most discussed and influential reason for rejecting the council of revision proposal was the existence of a judicial negative on unconstitutional legislation. So powerful is this and other evidence that it strongly supports the conclusion that judicial nullification was included within the original public meaning of the “judicial power.”

During a debate concerning whether judges should be included with the executive in a council empowered to revise laws, the comments of several delegates revealed their assumption that federal judges had the inherent power to hold federal laws unconstitutional.

Luther Martin of Maryland stated that “as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws.”

George Mason of Virginia observed that “in their expository capacity of Judges they would have one negative…. They could declare an unconstitutional law void.”

While he favored the idea of the council, James Wilson of Pennsylvania conceded that there “was weight in this observation” that “the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights.”

The assumption that judges possess the inherent power to nullify unconstitutional laws crops up in a variety of other contexts during the Convention. For example, Gouverneur Morris favored ratification of the Constitution by the people in convention because legislative ratification of the new Constitution was prohibited by the terms of the Articles of Confederation. “Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void.”

James Madison argued that a difference between a league or confederation among states and a constitution was precisely its status as binding law on judges. “A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”

Hugh Williamson of North Carolina argued that an express prohibition on ex post facto laws by states “may do good here, because the Judges can take hold of it.”

What is striking in light of these statements is that, throughout the duration of the Convention, I could find no one who disputed the existence of a judicial power to nullify unconstitutional laws. No one.

I did find one delegate, John Mercer, who didn’t like the idea. But then delegate John Dickenson of Delaware replied that, although he was “was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law,” he said that he was “at a loss to know what expedient to substitute.”

Gouverneur Morris took issue with Mercer more sharply, stating that he could not agree that the judiciary “should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side.”

What concerned the framers most was not the existence of the judicial power of nullification, but the likely weakness of the judiciary in holding the line. In this concern, they were prescient.

As we saw with the challenge to the ACA, courts more often find a way to “defer” to the majoritarian branches than to stand in the way. For example, James Wilson thought that Congress should have the power to nullify state laws because “the firmness of Judges is not itself sufficient.”

So, the “myth of judicial supremacy” is itself a myth.

The “judicial power” to nullify unconstitutional laws was no invention of John Marshall in Marbury but was well accepted at the time the Constitution was adopted. All assumed that courts could render a law “void” – indeed that this was their duty – and their judgment would necessarily be binding on the other branches.

Nor does this power make the judiciary “supreme.” It merely recognizes the concurrence of a coequal judiciary as the last line of defense of the rights retained by the people.

EDITORS NOTE: This post first appeared at the Volokh Conspiracy, where Professor Barnett blogs.

Randy Barnett