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Trump Adds These 20 Names to His List of Supreme Court Candidates

President Donald Trump publicly added 20 names Wednesday to his list of candidates for the Supreme Court, including six women, three Senate Republicans, and a state attorney general. Also new to the list are prominent government lawyers who haven’t served as judges.

“Every one of these individuals will ensure equal justice, equal treatment, and equal rights for citizens of every race, color, religion, and creed,” Trump said in making the announcement at the White House. “Together, we will defend our righteous heritage and preserve our magnificent American way of life.”

For the most part, the president’s 20 new Supreme Court prospects follow the traditional pattern in which federal appeals court judges, also known as circuit judges, are considered for the high court.

Currently, all but one of the nine justices were circuit judges before being nominated to the Supreme Court. Only Justice Elena Kagan never had been a judge before.


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When running for president in 2016, Trump adopted a list of potential Supreme Court nominees from recommendations by The Heritage Foundation and the Federalist Society. He has appointed two justices who were on that list: Neil Gorsuch and Brett Kavanaugh.

“The names I know are really good people, but I’m not familiar with everyone,” John Malcolm, director of the Meese Center for Legal and Judicial Studies, told The Daily Signal. “It’s an impressive list. Not everyone was on my list, but many were.”

In his announcement of the names, Trump laid out the stakes if the high court were to shift back toward the liberal side.

“Unfortunately, there is a growing radical left movement that rejects the principle of equal treatment under the law,” Trump said, adding:

If this extreme movement is granted a majority on the Supreme Court, it will fundamentally transform America without a single vote of Congress. Radical justices will erase the Second Amendment, silence political speech and require taxpayers to fund extreme, late-term abortion.

They will give unelected bureaucrats the power to destroy millions of American jobs. They will remove the words ‘under God’ from the Pledge of Allegiance. They will unilaterally declare the death penalty unconstitutional, even for the most depraved mass murderers. They will erase national borders, cripple police departments, and grant new protections to anarchists, rioters, violent criminals, and terrorists.

Here’s a look at Trump’s new contenders for the high court.

Politicians

Trump’s additions include four elected officials, which has been a rare occupation for nominees.

Former Justice Sandra Day O’Connor had been an Arizona state senator before becoming a state judge. But going from elected office directly to the Supreme Court is rare.

The most notable example is President Dwight Eisenhower’s naming of California Gov. Earl Warren as chief justice in 1953.

The politicians on Trump’s list are:

Kentucky Attorney General Daniel Cameron, a Republican first elected in 2019. Cameron, 34, is the state’s 51st attorney general. He was previously legal counsel to Senate Majority Leader Mitch McConnell, R-Ky. He earned his law degree, cum laude, from the University of Louisville Brandeis School of Law.

Sen. Tom Cotton, R-Ark., first elected to the House in 2014. Cotton, 43, was an Army captain who served in Afghanistan and Iraq, Cotton received his law degree from Harvard Law School.

Sen. Ted Cruz, R-Texas, first elected in 2012. A former solicitor general of Texas, he has argued cases before the U.S. Supreme Court. A law clerk to former Chief Justice William H. Rehnquist, Cruz, 49, received his law degree, magna cum laude, from Harvard Law School.

Sen. Josh Hawley, R-Mo., elected in 2018. Hawley, 40, previously was Missouri’s attorney general and an associate professor at the University of Missouri School of Law. He also was a lawyer with the Becket Fund for Religious Liberty. A former clerk for Chief Justice John Roberts, Hawley received his law degree from Yale Law School.

A fourth Senate Republican, Mike Lee of Utah, was on Trump’s 2016 list.

Federal Appeals Judges

If history is a guide, one of these new names—all Trump appointees—is the most likely to become a Supreme Court justice if the president gets second term, since circuit judges tend to be the farm team for the high court.

Here are the new appeals court judges on the list:

Peter Phipps, 47, of Pennsylvania, on the 3rd Circuit Court of Appeals since July 2019. Phipps also served as a U.S. district judge for the Western District of Pennsylvania. He was senior trial counsel in the federal programs branch of the Justice Department’s Civil Division. He received his law degree from Stanford Law School.

Allison Jones Rushing, 38, of North Carolina, on the 4th Circuit since March 2019. She clerked for Justice Clarence Thomas and then-Judge Neil Gorsuch on the 10th Circuit. She received her law degree, magna cum laude, from Duke University School of Law.

Lawrence VanDyke, 47, of Nevada, confirmed by the Senate last December to serve on the 9th Circuit. VanDyke previously was deputy assistant attorney general for the Environment and Natural Resources Division of the Justice Department. He also was solicitor general of both Nevada and Montana, defending the policies of those states before the U.S. Supreme Court. He received his law degree, magna cum laude, from Harvard.

Bridget Bade, 54, of Arizona, on the 9th Circuit since April 2019. Bade was both a U.S. magistrate judge and an assistant U.S. attorney for the District of Arizona. She received her law degree, cum laude, from Arizona State University’s Sandra Day O’Connor College of Law.

Stuart Kyle Duncan, 48, of Louisiana, on the 5th Circuit since April 2018. Previously general counsel of the Becket Fund for Religious Liberty, he also argued cases before the U.S. Supreme Court as solicitor general of Louisiana. He received his law degree from the Paul M. Hebert Law Center at Louisiana State University and his LL.M from Columbia University Law School.

James Ho, 47, of Texas, on the 5th Circuit since December 2017. He was solicitor general of Texas and clerked for Justice Clarence Thomas. He received his law degree with high honors from the University of Chicago Law School.

Gregory Katsas, 56, of Virginia, on the District of Columbia Circuit Court of Appeals since December 2017. Katsas was both deputy assistant and deputy counsel to the president, as well as the Justice Department’s assistant attorney general for the Civil Division. He clerked for Thomas both at the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit. He received his law degree, cum laude, from Harvard.

Barbara Lagoa, 52, of Florida, on the 11th Circuit since December 2019. Previously a justice on the Supreme Court of Florida, she also was an assistant U.S. attorney for the Southern District of Florida. Lagoa received her law degree from Columbia.

Other Government Officials

Former Chief Justice William Rehnquist, like Kagan, was solicitor general of the United States—the No. 4 official at the Justice Department—before ascending to the high court.

Trump’s new candidates include these top-ranking government lawyers and officials:

Paul Clement, 54, of Virginia, U.S. solicitor general during the George W. Bush administration from 2005 through 2008, when he argued more than 100 cases before the high court. He previously clerked for Justice Antonin Scalia and received his law degree, magna cum laude, from Harvard.

Steven Engel, 46, of Washington, D.C., assistant attorney general for the Justice Department’s Office of Legal Counsel, which advises the president, since November 2017. He previously was deputy assistant attorney general in that office.  A former clerk for Justice Anthony Kennedy, he received his law degree from Yale.

Noel Francisco, 51, solicitor general from September 2017 to July 2020. He previously served in the Office of Legal Counsel as deputy assistant attorney general and as associate counsel to the president. A former clerk for Scalia, he received his law degree with high honors from the University of Chicago.

Christopher Landau, 56, of Maryland, U.S. ambassador to Mexico since August 2019. Landau clerked for Scalia and for Thomas, both at the Supreme Court and the Court of Appeals for the District of Columbia Circuit. He received his law degree, magna cum laude, from Harvard.

Kate Todd of Virginia, former deputy assistant and deputy counsel to President George W. Bush. She clerked for Thomas and received her law degree, magna cum laude, from Harvard.

Federal District Judges

District judges rarely are appointed to the Supreme Court, but two Trump appointees made his expanded list.

Martha Pacold, 41, on the bench of the Northern District of Illinois since August 2019. She previously was deputy general counsel of the Treasury Department. A former clerk to Thomas at the Supreme Court, she received her law degree with honors from the University of Chicago.

Sarah Pitlyk, 43, on the bench of the Eastern District of Missouri since December 2019. Previously special counsel at the Thomas More Society, she clerked for Kavanaugh at the U.S. Court of Appeals for the District of Columbia Circuit.  She received her law degree from Yale Law.

State Supreme Court Justice

O’Connor served as an Arizona state judge before President Ronald Reagan nominated her in July 1981 to become the high court’s first female justice.

Trump’s new list includes one state Supreme Court justice: Carlos Muniz, 51, of the Florida Supreme Court, appointed by Gov. Ron DeSantis in January 2019.

Muniz previously was general counsel to the U.S. Department of Education and served in various positions in Florida state government, including as deputy attorney general and chief of staff to then-Attorney General Pam Bondi. He received his law degree from Yale.

COLUMN BY

Fred Lucas

Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.” Send an email to Fred. Twitter: @FredLucasWH.

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A Note for our Readers:

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For years, “Democratic Socialists” have been growing a crop of followers that include students and young professionals. America’s future will be in their hands.

How are socialists deluding a whole generation? One of their most effective arguments is that “democratic socialism” is working in Scandinavian countries like Sweden and Norway. They claim these countries are “proof” that socialism will work for America. But they’re wrong. And it’s easy to explain why.

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Get your free copy of “Why Democratic Socialists Can’t Legitimately Claim Sweden and Denmark as Success Stories” today and equip yourself with the facts you need to debunk these myths once and for all.

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Trump Jilts Google in Copyright Dispute at Supreme Court

The Trump administration has urged the Supreme Court to stay out of a long-running copyright dispute between Google and Oracle Corp., dealing a considerable blow to Google’s efforts to avoid an $8 billion damages award.

At issue in the dispute, billed as the copyright fight of the decade, are software interfaces called API declarations, which are shorthand commands that facilitate prewritten, complex computer functions. Google used a trove of Oracle-owned Java API declarations when building its Android smartphone operating system.

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“[Google] copied 11,500 lines of computer code verbatim, as well as the complex structure and organization inherent in that code, in order to help its competing commercial product,” the Trump administration’s legal brief reads. “The record demonstrates, moreover, that [Google’s] unauthorized copying harmed the market for [Oracle’s] Java platform.”

Sun Microsystems originally developed the contested API declarations. Oracle acquired Sun in 2010. Shortly thereafter, Oracle sued Google in federal court for patent and copyright infringement, saying Google impermissibly copied the API declarations. Years of litigation followed.

Now before the Supreme Court, Google questions whether APIs are copyrightable in the first place. The federal Copyright Act provides that protection does not extend to “methods of operation.” In Google’s view, APIs are a method of operation because they help developers access prewritten, complex functions.

“The Java API declarations simply tell developers how to access the prewritten methods to perform tasks carried out by the implementing code,” Google’s petition reads. “In that respect, the declarations are analogous to a set of rules developers are trained to follow when writing programs in the Java language. If the rules were changed, the prewritten methods would not work. For that reason, the declarations are necessarily part of the method of operating the libraries of prewritten code.”

The Trump administration disagreed, saying APIs do not count as a method of operation simply because they perform a function.

“Although there is a sense in which all computer code could be described as a method of operating a computer, the Copyright Act as a whole makes clear that computer programs can be protected by copyright, refuting any suggestion that the functional character of computer code suffices to bring it within [the Copyright Act],” the government’s brief reads.

The Supreme Court gives the federal government’s views great credence when, as here, the justices ask for its guidance about whether to take a case.

However, Google contends the federal appeals courts are split as to whether copyright protections reach software interfaces like APIs. The Supreme Court justices are much more likely to take a case featuring a question of law over which multiple courts disagree.

Google prevailed at the case’s first trial in 2012. A jury deadlocked over Oracle’s claims, prompting the judge to sign with Google. The U.S. Court of Appeals for the Federal Circuit, a specialized court for patent appeals, reversed that decision and ordered a new trial in 2014.

Google appealed the Federal Circuit’s ruling to the Supreme Court, but the justices turned the request down in 2015.

A second trial followed in 2016. A jury sided with Google, finding fair use protected its reliance on the API declarations. The Federal Circuit overturned that verdict, ruling Google had not engaged in fair use. It returned the case to a lower court for a trial on damages.

That decision is now pending before the Supreme Court. On April 29, the justices asked the Trump administration to weigh in on the petition.

The case is No. 18-956 Google v. Oracle America.

COLUMN BY

Kevin Daley

Kevin Daley is a legal affairs reporter for the Daily Caller News Foundation. Twitter: @kevindaleydc.

EDITORS NOTE: This Daily Caller column is republished with permission. All rights reserved. Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, email licensing@dailycallernewsfoundation.org.

First time in history the Presidential refugee ceiling has been exceeded thanks to the U.S. Supreme Court

And, you can thank the Supreme Court for unconstitutionally legislating in its decision late last month. Refugees arriving after today are the responsibility of nine unelected justices.

I showed you here over the weekend that no ceiling has been exceeded in the over 35 year history of the program.

My worry is that what SCOTUS has done has been to literally obliterate the responsibility for refugees the law gives to the President and to Congress by defining a new standard for admittance—to those with “bona fide” relationships—ceiling be damned!

Even if one argues it is temporary, it is still an outrage!  How dare the Supreme Court say that those in a newly coined category—those prospective ‘refugees’ with bona fide relationships—are not a security threat to us!  That is the President’s job! Did the justices even read the Refugee Act of 1980?

But, how do you challenge the Supreme Court?  And, are the contractors secretly cheering because they have longed for the day when the CEILING would become meaningless.

To top it off, there is another legal challenge before the rogue Hawaii judge that might further gum up the works (see Breitbart’s Michael Leahy on that potential legal quagmire, here).

Chaos and confusion reign, just as Clarence Thomas (with Alito and Gorsuch) predicted.

And, this was completely unnecessary because the Trump Administration could have simply lowered the ceiling when they came in to office without any Executive Order.  The most they had to do was notify Congress!

As of yesterday afternoon, we have admitted 50,086 refugees to the US in this fiscal year.

Here is where the 50,086 were placed.

Alaska got 55 and Hawaii got 3.

Here are the top ten ‘welcoming’ states.  LOL! Hawaii is near the bottom as always with 3 whole refugees!

So much for Texas removing itself from the USRAP!

All of my posts on the aftermath of the Supreme Court’s decision are archived here.

There are many stories in the media today about the ceiling having been exceeded, if there is anything useful (other than the same old babble), I’ll update this post.

How Affirmative Action Backfires by Richard Sander

Affirmative action is before the Supreme Court again this week, as it rehears arguments in Fisher v. University of Texas. (I’ve discussed the legal issues in Fisher here.)

But perhaps the most important question about racial preferences is one that’s not directly raised by the case: do they even work? Do they help underrepresented minorities to achieve their goals, and foster interracial interaction and understanding on elite campuses? Or do large preferences often “mismatch” students in campuses where they will struggle and fail?

Scholars began empirically studying the mismatch issue in the 1990s, but in the past five years the field has matured. There are now dozens of careful, peer-reviewed studies that find strong evidence of mismatch.

None of the authors of these studies claim that mismatch is a universal or inevitable consequence of affirmative action. But in my view, only demagogues (of which there is, unfortunately, no shortage) or people who haven’t read the relevant literature can still claim that mismatch is not a genuine problem.

It is helpful to think about mismatch as three interrelated phenomena that could affect a student of any race — let’s call her Sally — who receives a large admissions preference, so that she attends a college where her level of academic preparation is substantially below that of her peers.

First, “learning mismatch” occurs if Sally learns less than she would at a less competitive school, because the pace is too fast or her professors are pitching their material at a level that’s not ideal for her.

Others and I have argued that learning mismatch occurs on a massive scale in American law schools, where African-Americans (and some other students) tend to receive very large preferences and then, very often, are never able to practice law because they cannot pass bar exams.

Our best estimate is that only about one-third of black students who start law school in America successfully graduate and pass the bar exam on their first attempt (see my September 2006 blog post here).

A second form of mismatch — “competition” mismatch — occurs when students abandon particular fields, or college itself, because of the practical and psychological effects of competing with better-prepared students.

Suppose that Sally dreams of becoming a chemist, does very well in a standard high school chemistry course, and receives a preference into an elite school where most of her classmates have taken AP Chemistry. Even if Sally does not experience “learning” mismatch, she may nonetheless end up with a B- or a C in chemistry simply because of the strength of the competition.

A long line of studies (e.g., this excellent study by two psychologists) have shown that students receiving large preferences, facing these pressures, tend to abandon STEM fields in large numbers. Competition mismatch thus appears to have large and damaging effects on the number of African-Americans, in particular, graduating with science or engineering degrees.

The third type of mismatch — “social mismatch” — is in some ways the most intriguing.

Several studies have now found that college students are much more likely to form friendships with students who have similar levels of academic preparation or performance at college. The phenomenon operates even within racial groups, but when a college’s preferences are highly correlated with race (as they are at many elite schools), social mismatch can lead to self-segregation by minority students.

The result is decreased social interaction across racial lines. That’s particularly relevant to the Supreme Court’s deliberations because its tolerance of racial preferences has been based on the idea that a diverse racial campus promotes interracial contact and learning.

But if preferences promote substantial social mismatch, then race-conscious admissions actually decrease interracial contact and learning — not only at the school where the preferences are used, but also at the college that the preferenced minority student would have attended in the absence of preferences.

Of course, new studies of higher education come out all the time, and one can point to some study to argue almost any point. What makes the evidence of mismatch so compelling is the large number of very high-quality studies that have appeared in the past few years, performed by a wide array of scholars and appearing in the strongest academic journals that exercise the most stringent peer review.

For example, the highly-respected Journal of Economic Literature last year commissioned two economists to summarize the state of research on higher education mismatch. To ensure an impartial study, the two economists JEL selected started out with different views of mismatch: one was a skeptic, the other the author of research that had found evidence of mismatch. JEL also asked seven other economists, again representing a wide range of perspectives, to peer review the article when it was drafted.

The resulting article is circumspect, but unequivocal in finding that much of the evidence on mismatch (especially in law school and the sciences) is compelling.

The American Economic Review — one of the three or four top journals in the social sciences — also recently announced that it is publishing a comprehensive study of mismatch in the sciences. It takes advantage of an unusually large database from eight campuses of the University of California, covering the period before and after California voters, through Prop 209, made it illegal to consider of race in public college admissions.

The study could thus examine how UC students who, through racial preferences, attended the most elite UC campuses before Prop 209 compared with very similar students who attended less elite campuses after Prop 209.

Peter Arcidiacono, Esteban Aucejo, and Joseph Hotz conclude unequivocally: “We find less-prepared minority students at top-ranked campuses would have higher science graduation rates had they attended lower-ranked campuses.”

The gold standard for empirical research is a genuine experimental design, where a group of subjects are randomly assigned to “treatment” and “control” groups. While random experiments are routine in medical research, they are still uncommon in the social sciences. A revealing study of that kind was recently conducted by three economists working with the Air Force Academy. 

Based on other work, the researchers hypothesized that students entering the Academy with relatively weak academic preparation would learn more and do better if they were assigned to squadrons with particularly academically strong cadets, thus creating opportunities for mentoring and tutoring. The Academy agreed to do a large randomized experiment, assigning some of the targeted students to the experimental squadrons with strong peers, and other students to “control” groups comprised of more typical students.

Again, the results were unequivocal: academically weak students in the experimental group learned less and got worse grades. Having much stronger students in the same squadron increased the weaker students’ tendency to form study groups with other weak students — a strong demonstration of “social mismatch.”

All this impressive research — and much more in a similar vein — has had little impact upon educational institutions. Even though many educational leaders will admit in private that the research is compelling, they believe that any public admission that racial preferences are counterproductive would be met with the sort of campus reaction that routinely drives college presidents from office.

For the same reason, university presidents and other educational leaders aggressively block the release of information vital to mismatch research — data which could, for example, help determine the border between small, safe preferences and large, harmful ones.

All of this should give the Supreme Court pause in assessing racial preferences. Past Court decisions have invoked a traditional deference to the independence of educational institutions. But colleges and universities have demonstrated that they are politically incapable of acting as good fiduciaries for their most vulnerable students.

A version of this post first appeared at the Pope Center for Higher Education Policy.

Richard Sander
Richard Sander

Richard Sander is an economist and law professor at UCLA, where he has taught since 1989.

RELATED ARTICLE: ‘Mismatched’ black students pay the price of affirmative action – The Boston Globe

America at the Tipping Point

TimeMagOn June 26, 2015, the United States Supreme Court, in a 5-4 split decision, declared that the institution of marriage is not limited to individuals of opposite genders… one man and one woman.  Five of the nine justices found a way to conclude that the Constitution guarantees a right to marriage between same-sex couples.  “No longer may this liberty be denied,” Justice Anthony M. Kennedy wrote in the majority opinion.  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than once they were.”  His words were more appropriate to a lonely hearts club newsletter than to a U.S. Supreme Court decision.

In a dissenting opinion, Chief Justice John Roberts wrote that the Constitution has nothing to say on the subject of same-sex marriage.  He wrote, “If you are among the many Americans… of whatever sexual orientation… who favor expanding same-sex marriage, by all means celebrate today’s decision.  Celebrate the achievement of a desired goal.  Celebrate the opportunity for a new expression of commitment to a partner.  Celebrate the availability of new benefits.  But do not celebrate the Constitution.  It had nothing to do with it.”

It didn’t take long for the states to make their feelings known.  Texas Attorney General Ken Paxton referred to the decision as, “A judge-based edict that is not based in the law.”  Paxton cited the 1973 abortion decision, Roe V. Wade, as another example of how the U.S. Constitution “can be molded to mean anything by unelected judges.”  He went on to say, “But no court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman.  Nothing will change the importance of a mother and a father to the raising of a child.  And nothing will change our collective resolve that all Americans should be able to exercise their faith in their daily lives without infringement and harassment.”

And now that the Supreme Court has placed their stamp of approval on same-sex marriage, we find that liberals and Democrats are reaching beyond that decision to find ways of making us “swallow” other items on the gay lobby’s agenda.  For example, Congresswoman Lois Capps (D-CA24) has introduced the Amend the Code for Marriage Equality Act of 2015, requiring that the terms “husband” and “wife” be stricken from federal law because she feels they are patently “anti-gay.”  She would prefer to see those terms replaced with more “gender-neutral” terms such as “spouse” or “married couple.”

In Portland, Oregon, Aaron and Melissa Klein, owners and operators of the Sweet Cakes by Melissa Bakery, have been ordered by the Oregon Bureau of Labor & Industry (OBLI) to pay $135,000 in damages to Rachel Cryer, and her wife-to-be, Laurel Bowman.  The dispute arose last year when Cryer and Bowman asked the Kleins to bake a cake for their upcoming same-sex wedding.  And when the Kleins declined, saying that to make a wedding cake for the event would represent a violation of their religious beliefs, Cryer and Bowman filed a complaint with the State of Oregon.  In their ruling, the OBLI found that “the bakery is not a religious institution under the law and that the business’ policy of refusing to make same-sex wedding cakes represents unlawful discrimination based on sexual orientation.”

Any thoughtful person must conclude that the same-sex marriage decision of the U.S. Supreme Court has brought the nation to a “tipping point.”  It has brought us to the point where the alternatives available to We the People… alternatives that were once thought to be only remote possibilities… are now realities, staring us directly in the face.  The alternatives are, in order of preference, a) massive civil disobedience, b) widespread 10th Amendment nullification by states and local communities, and finally, c) dissolution of the Union, otherwise known as secession… by far the most draconian of the three alternatives.

What five Supreme Court justices, Barack Obama, liberal Democrats, gays, and lesbians apparently fail to understand is that they have forced the country so far to the radical left that they may have finally reawakened a “sleeping giant,” once known as the “silent majority.”

Already, black pastors across the country have announced that, instead of being forced to marry same-sex couples, they will engage in massive civil disobedience.  The vast majority of those pastors are men and women who have always urged their parishioners to support the Democrat Party and its candidates.  The Obama administration, under Attorneys General Eric Holder and Loretta Lynch, have been highly selective in which laws they enforce and which they prefer to ignore.  If the Obama administration decides that they will side with the LGBT wing of the Democratic Party, will black pastors across the country sit idly by as their colleagues are arrested and hauled off to jail?

In her new book, ¡Adios America!, Ann Coulter reminds us that Democrats have not been able to win a majority of the white vote in presidential elections since 1948.  It is a trend that had been developing for many decades and there is little doubt that it is the unstated purpose behind the existence of the Immigration Reform Act of 1965.  As Democratic strategist Patrick Reddy is quoted as saying in a 1998 Roper Center report, “The 1965 Immigration Reform Act promoted by President Kennedy, drafted by Attorney General Robert Kennedy, and pushed through the Senate by Ted Kennedy, has resulted in a wave of immigration from the Third World that should shift the nation in a more liberal direction within a decade.  It will go down (in history) as the Kennedy family’s greatest gift to the Democratic Party.”

In other words, what the Democrats have done methodically over the past 50 years is to import the votes that they were unable to attract among traditional working-class European-Americans.  And now that they are importing millions of new voters from Mexico and Central America, and hundreds of thousands of Muslims from the Middle East, North Africa, and the Horn of Africa, apparently under the theory that they will be “eaten last,” one has to seriously wonder how many years we have left as the home of capitalism and the freest nation on Earth.

To be elected president or vice president of the United States requires a total of at least 270 votes in the Electoral College.  Through the strategic spending of other people’s money, especially among minorities in the major urban areas of the East Coast, the West Coast, and the Upper Midwest, Democrats have fashioned an electoral map that gives them a relatively firm base of 22 states with a combined total of 257 of the needed 270 electoral votes.

Republicans, on the other hand, have a firm base of 23 states with a combined total of 191 electoral votes.  That leaves a total of 6 swing states… Colorado, Florida, Iowa, North Carolina, Ohio, and Virginia… with a combined total of 90 electoral votes.  In order for a Republican to win in 2016, and beyond, he/she must carry all 23 of the solid Republican states, plus all six of the swing states.  They could afford to lose either Colorado’s 9 electoral votes or Iowa’s 6 electoral votes, but not all 15.  To lose both Colorado and Iowa, while carrying Florida, Ohio, North Carolina, and Virginia would leave them with a total of just 266 electoral votes, four short of an electoral majority.

That analysis brings into sharp focus just how close we are to sliding over the “tipping point” into the dustbin of world history.

The Founding Fathers could not have envisioned a time when the American people would elect a totally incompetent and constitutionally ineligible man, a dual citizen of the United States and Kenya, to two consecutive terms in the White House, followed immediately by the first female president who also happens to be, if not the most corrupt, one of the most corrupt political figures in U.S. history.

But still, there are positive signs of life in the body politic:

  • The decision by black pastors to engage in massive civil disobedience.
  • The numerous lawsuits by states against oppressive federal government rulings.
  • The decisions by a growing number of states to allow military recruiters to be armed.
  • The growing number of states that have engaged in 10th Amendment nullification.
  • The growing number of states that have joined the Article V Convention movement.

But, in the end, should all else fail, there is still the alternative of secession.  The 25 states of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming would make one helluva fine country… a country with secure borders, a second-to-none military, the world’s most productive economy, and long term energy independence.

I’m sure we would also allow the states of Colorado, Iowa, and Ohio to join us if only they would agree to behave themselves and to make life inside their borders unbearable for liberals, radical Muslims, illegal aliens, and other undesirables.  The bottom line is this: we no longer have a margin for error.  If we wish to have a long term future as a constitutional republic we cannot afford to elect another Democrat to the Oval Office in 2016.  We are at the tipping point of our nation’s history and one more misstep could easily send us off to political oblivion.

To borrow a phrase from the National Highway Traffic Safety Administration, the national motto for 2016 must be, “Friends don’t allow friends to vote Democratic!”

RELATED ARTICLE: Transgender Only Modeling Agency Opening in This City

COUNTDOWN: Four Days Left to File for SCOTUS Marriage Re-hearing

We have rarely seen anything as disgraceful as this.

There are just five days to go before the July 21 deadline to file for a re-hearing before the US Supreme Court on its recent 5-4 “same-sex marriage” ruling. But chances are bleak that this crucial filing will be done. The cave-in by the GOP has spread to major pro-family organizations.

July 10 meeting in DeWine’s office. Ohio Attorney General Mike DeWine (in red tie) watches Constitutional Law Professor David Forte (far left) discuss the Motion for Recusal filed in April and a Motion for a Re-hearing to be filed immediately. Seated to DeWine’s left is Solicitor General Eric Murphy. Nearly 50 Ohio pro-family activists, citizens, and pastors were also in the room.

As we described in our report last week, the US Supreme Court “same-sex marriage” fight is not completely over. According to the Court’s published rules, within 25 days of a ruling, a party can ask the Court for a “rehearing” if there are pertinent issues meriting an appeal. The issue of “merit” here is that Justices Kagan and Ginsburg – both of whom ruled for “same-sex marriage” — were clearly required by federal law to recuse themselves from this case. The 25-day period to file for a re-hearing expires on Tuesday, July 21.

It seemed like a simple and obvious step for our side to take, especially given the outrageous nature of the ruling. So a few days after the June 26 ruling, national pro-family activist Janet Porter called together a few dozen of the top pro-family groups (including MassResistance), activists, and some legal scholars to help get it moving. But we certainly didn’t anticipate this much opposition to this from our “friends”.

Of the four state AGs who are eligible to file the motion (from Ohio, Michigan, Kentucky, and Tennessee) it was decided for various reasons focus on Mike DeWine of Ohio. Several in the group have connections to him.

Pro-family citizens meet with Ohio AG Mike DeWine

DeWine is a Republican with long connections to pro-family people in Ohio. Janet Porter and several in the group are Ohio residents – some of them know DeWine personally. They were able to arrange a meeting last Friday, July 10, in DeWine’s office, to ask him to file for a re-hearing.

Even with short notice, nearly 50 people showed up for the meeting in DeWine’s Columbus office. They included Janet Porter, Constitutional Law Professor David Forte of Cleveland State University, several Ohio activists, and a large group of pastors. Alongside DeWine was the Ohio Solicitor General, Eric Murphy.

Prof. Forte started the meeting by going over the Motion for Recusal filed on April 27 (the day before the Court hearing) and outlining the legal issues for re-hearing the case. DeWine responded by saying he would not be filing for a re-hearing, then opened up the floor for questions and statements from others.

Pro-family activist and Ohio resident Coach Dave Daubenmire attended the meeting. Here’s his account of what happened.

As soon as Prof. Forte was done presenting, Michael DeWine said he had no intentions of re-filing. He said that there’s no chance of winning; it takes 5 justices to agree to do it. He doesn’t want to give false hope to people that this might be reversed. And it’s now time to direct our focus to protecting religious liberty, he said.

The meeting lasted about an hour and 45 minutes. We had thought we were going to just get 15 minutes. He took every question. Some great points were made. One gentleman asked him, “What about his duty to protect children? Because of this ruling, it’s now going to be taught to our children in schools. It’s going to be mandated. And you have an obligation to protect the children.” Another pastor stood up and said, “This is your Moses moment. The Lord has been preparing you. And you’re an elected official. You represent the will of the people who voted on this issue. And the Supreme Court is totally out of bounds and we want you to appeal it on our behalf. ” Then DeWine went through that whole thing again about why he wasn’t going to file it.

And I told him, “Listen, Attorney General DeWine, I was a football coach for 30 years. I didn’t just play the games I thought we would win. We had to play every game on our schedule. And this game’s not over. We have our legal right to an appeal. And on behalf of the concerned Christians and citizens of Ohio we want you to appeal.” This went on for about an hour and 30 minutes. Everybody who had a question and raised their hand, he listened to the question. He didn’t always answer or respond, but he listened.

And then the meeting was done. At the end of the meeting he didn’t say that he wouldn’t do it, but he didn’t say that he would, either. He promised us that he’d read David Forte’s brief and that he would take it under consideration.

How does DeWine know that somebody’s heart [on the Supreme Court] won’t be changed? We need to at least get them on record about this lack of recusal. The people feel robbed.

One attendee told us this:

I believe that DeWine wants to be Governor. And I believe the Republican Party wants the issue to go away, and that he doesn’t want to cross the party bosses. That’s what I think really happened. But who do you serve? I think he serves the [establishment] Republicans and not the citizens of Ohio.

DeWine reacts to flood of emails & calls (from everywhere)

Over the last week, since MassResistance and others have publicized this, DeWine’s office has his office has received a flood of calls and emails from Ohio, across the country, and even foreign countries. (We know that from people who’ve also contacted us.)

It doesn’t appear that the July 10 meeting moved DeWine much. And his “reasons” for not filing are even weaker than before. Here’s a response DeWine’s office emailed to an activist in Maryland on Tuesday, July 14.

Dear Mr. xxxx:

Thank you for contacting my office regarding the United States Supreme Court’s decision on same-sex marriage.

I defended Ohio’s Constitution and statutes in this area at the District Court, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

As you know, the 5-4 majority of the Supreme Court rejected our argument that the definition of marriage should be left to the States and the people.  Before the Court issued its decision, a suggestion for recusal was filed by amicus parties and the individual Justices had the duty to consider their impartiality.  The Justices did not recuse themselves.  Under Supreme Court rules (and specifically Supreme Court Rule 44.1), motions for reconsideration are to be denied unless they have the vote of at least five Justices.

Again, thank you for contacting my office.  If we can ever be of assistance to you in the future, please feel free to contact us.

Very respectfully yours,

MIKE DEWINE
Ohio Attorney General

Absurd reasoning by DeWine

DeWine’s reasoning in the above email is very disturbing.  (1) He refers to a “suggestion for recusal,” i.e., the Motion for Recusal. But that was not a formal part of the process because it was filed by an outside party – and was most likely ignored by the Justices. And it was submitted the day before the Aril 28 Supreme Court hearing. (2) The fact that a vote to accept a hearing requires five justices not a legitimate reason not to file for a re-hearing. Upon seeing the new evidence, one or more of the majority could change.

Moreover, DeWine’s refusal to file for an appeal arguably constitutes malpractice. There is a universally accepted requirement that a lawyer must zealously fight for his client’s interests, not fold up his tent when it’s inconvenient or unpleasant. The American Bar Association’s Rules of Professional Conduct state, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is replicated in just about every other Bar Association code of ethics – even using the word “zealously”. The fact that in 2004 62% of the voters in Ohio passed the state’s Marriage Amendment makes DeWine’s inaction even more outrageous.

What about the other three states eligible to file for a re-hearing?

The Supreme Court case, Obergefell v Hodges, originated in Ohio, but was also a consolidation of cases in Tennessee, Michigan, and Kentucky – the other states in the Sixth Circuit. Thus, the Attorneys General of all four states have standing to act.

Janet Porter’s ad-hoc pro-family activist committee had connections to DeWine, but unfortunately none of them had effective  political connections to any of the other AGs.

We had assumed that that the larger national pro-family groups would also use their considerable influence to push this. We certainly made this known to them. But they all pretty much backed away. One national leader told Janet that this was a “waste of time.” What about the National Organization for Marriage? Not a word. We could name so many others. (There’s certainly a lot of fundraising going on over this ruling.) Or even the Federalist Society, which had the inside track to the legal process in this case?

Here’s what everyone can do now

CALL, EMAIL, TWITTER, or even FAX these AGs.  They need to hear from more people than they’ve ever heard from before:

Demand that they file a “Motion for Rehearing” in the Supreme Court marriage case by next Tuesday, July 21st. The Court must consider the information about how Justices Kagan Ginsburg violated federal law by officiating homosexual “weddings” before the ruling, and not recusing themselves from this case.

OHIO Attorney General Mike DeWine (Republican)
Phone: 800-282-0515
Email: mary.mertz@ohioattorneygeneral.gov  (his assistant)
Twitter: @OhioAG

TENNESSEE Attorney General Herbert Slatery  (Repubican)
Phone 615-741-3491
Fax 615-741-2009
Twitter: @TNattygen  [https://twitter.com/tnattygen]
Chief of Staff: Leigh Ann Apple Jones

MICHIGAN Attorney General Bill Schuette (Republican)
Phone 517-373-1110
Fax 517-373-3042
Email: miag@michigan.gov

KENTUCKY Attorney General Jack Conway (Democrat)
Phone 502-696-5300
Fax  502-564-2894
Email: web site contact page

Why filing this motion for a re-hearing is very important

We’ll repeat what we said earlier. Even if it’s not ultimately 100% successful this is extremely important:

First, it will “officially” bring the issue of Kagan’s and Ginsburg’s failure to recuse themselves (in violation of federal law) into the public spotlight. Right now, it’s relatively buried in ignored motions and various news articles in some conservative media.  And it will reinforce understanding of the overall illegal nature of this ruling.

Second, it spotlights the overall illegitimacy of today’s Supreme Court, its overtly un-Constitutional approach to shaping our laws, and its illegal power grabs far and beyond what was intended by the Founders.

If this opportunity is lost, it will be a terrible indictment to this movement. If only the homosexual movement would give up this easily.

SCOTUS Ignites New Level of Resistance

My sofa felt pretty comfortable. Ninety percent of the time, I’m on the road as chairman of the Conservative Campaign Committee. This was a rare occasion to be in town for the Volusia 9/12 Project monthly meeting. I saw the email reminder about the meeting earlier that day and thought it might be good to attend considering the two devastating outrageous rulings handed down by the Supreme Court (Obamacare and same sex marriage).

But when 5:00 p.m. rolled around and I would have to leave at 6:00 p.m. to get there on time at 7:00 p.m., I was sorely tempted to stay home on my extremely comfortable sofa. And yet, almost robotic, I showered and prepared to leave. At our front door, my wife Mary gave me a kiss and said, “I’m proud of you for going.” I asked, “Why?” She replied, “I don’t know.”

The 9/12 group’s meeting was the same day the Supreme Court ruled in favor of same sex marriage. I’m a Christian and know that God has everything under control. Still, I was emotionally shaken; angry, frustrated, hurt and concerned about the dark place our country is headed – evil appearing to triumph everywhere you turn.

Thank God I attended that meeting. It was awesome. The hall was filled with patriots, mostly Christian, still passionately engaged after meeting for the past seven years. The Supreme Court’s judicial activism though dispiriting appears to have sparked a new level of commitment in them to fight for God and country.

The leader of the group is Ray Sanchez. Wow, I regret not bringing in my phone to record Ray’s inspiring rip-roaring opening monologue, pledging to continue pushing back and seeking new ways to defend the Godly traditions and values that have made America great.

There was talk of churches bowing out of 501c3 status; liberating them from government dictates.

A gentlemen at the meeting lamented that the GOP is committed to staying away from social issues. Meanwhile, Democrats/Leftists are cramming their consensus on social issues down our throats. He said the Supreme Courts rulings punctuates how crucially important it is to put people of moral character in office.

Allowed a moment on the microphone to speak about his travels, I was blown away by the passion and commitment of 79 year old Reynerio Sanchez (not related to the group’s leader Ray Sanchez). Last year, Mr Sanchez drove 10,464 miles giving away copies of the U.S. Constitution. He also gives away copies of the Ten Commandments; upbeat, enthusiastic and not showing any signs of slowing down. Mr Sanchez read the group a moving “thank you” email he received from a young waitress on the other side of the country. Mr Sanchez’s website is: reysan.org

PATRIOT CAMP

Patriot camp for children.

One of the ladies excitedly reported about this year’s “Patriot Camp” for 1st to 6th graders. She and her team teach American history through storytelling, drama, crafts and games. I was told that Patriot Camp is extremely popular with kids and parents.

The keynote speaker was Dr Tom LaHue. His topic was “The Decline of the Church” which appears to be a worldwide phenomenon. The stats Dr LaHue shared showing the decline in attendance and effectiveness of the church in our culture were pretty disheartening.

When asked what we can do to change the direction of our country, Dr LaHue said we should “have a burden for America”. He said some may be called to Christian ministry, while others are led to fight back in other ways. His point was it is crucial that every patriot continues to do their part; continuing to fight to restore America.

From the ladies who run the group’s Patriot Camp to elderly Mr Sanchez touring America handing out Constitution booklets and the Ten Commandments, these are people simply doing whatever they can to restore the country they love. We did not reach this current level of debauchery in America over night. It will take faithfulness, prayer and wisdom to turn it around.

The unwavering determination and commitment of the Volusia 9/12 Project truly inspired me. I suspect their “burden for America” is representative of Tea Party groups across America.

My brother said, in essence, SCOTUS made it illegal to be a Bible believing and functioning Christian. I told him I do not think we are totally there yet, but are swiftly headed in that direction.

I pray that there is a silver lining in the Supreme Court’s betrayal, the igniting of a new intensity in the level of resistance to Obama and his minion’s fundamental transformation of America.

Brother and sister patriots, go with God. Go with God.

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’

“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.

But, How Did We Come to This Cultural Transformation?

Dr. Judith Reisman, Director of the Liberty Center for Child Protection, is joining pro-family leaders from across the country in opposing the newest fad, experimental “marriage”. The brief filed on behalf of Dr. Reisman and written by Liberty Counsel exposes the 67-year history of the “sexual revolution” spawned by a sexual psychopathic bi-homosexual pederastic sadomasochist, Dr. Alfred Kinsey (source Kinsey Institute). His famous sex “research” claiming 10% to 37% of men were/are homosexual, permeates today’s marriage debate.

Yet his subjects included 1,400 sex offenders, including criminals, pedophiles and pederasts who provided the data base on their sexual abuse of infants and children for Kinsey (source Kinsey Institute).

Thus the current notion that children are unharmed by sex with adults since they are sexual from birth published in Kinsey’s books on sexual behavior in tables below.

kinsey sexual abuse table

Allegedly timing “orgasms” but actually torture, as confirmed by Kinsey descriptions of said “orgasms”. Kinsey’s team continues to tout their finding that children are sexual from birth, proudly displaying a photograph donated to the Kinsey Institute at Indiana University. Dr. Reisman’s brief explains how this data chronicling the abuse of children such as the baby pictured above, and information provided by sex offenders, criminals and prostitutes is the basis for decades of social change, including the present request for the Supreme Court to dismantle natural marriage.

Dr. Reisman and Mathew Staver, Founder and Chairman of Liberty Counsel which wrote the brief, explain the genesis of the attack on marriage in a new documentary produced by Janet Porter entitled, “Light Wins: How to Overcome the Criminalization of Christianity.”

Mrs. Porter will be among the pro-family leaders gathering at the Supreme Court on the eve of the Court’s oral arguments on the marriage issue to represent the majority of Americans who want their voices to be heard and respected and the breakdown of the Judeo-Christian foundation of the country to stop.

RELATED ARTICLE: AP Poll: Religious freedom trumps gay rights

EDITORS NOTE: To learn more about the cultural impact of Alfred Kinsey click here.

Ryan T. Anderson’s Instant Analysis of Supreme Court’s Same-Sex Marriage Case

The Daily Signal caught up with The Heritage Foundation’s Ryan T. Anderson moments after Supreme Court justices concluded oral arguments on same-sex marriage.

Anderson, Heritage’s William E. Simon senior research fellow in American principles and public policy, spent the morning in the courtroom and shared his take with Jamie Jackson on the debate and Justice Anthony Kennedy’s questions.

Jamie_Jackson (1)Jamie Jackson

Jamie Jackson, a former Capitol Hill aide and TV journalist, oversees The Daily Signal’s multimedia and video content. Send an email to Jamie.

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15 Supreme Court Decisions that Shredded the Constitution

When the Court traded law and liberty for political expediency by SEAN J. ROSENTHAL.

What makes a Supreme Court decision bad? And what are the worst precedents handed down by our highest court?

I’ve been thinking about this a lot recently, and here are my nominees for the worst SCOTUS opinions to date.

The standard I’m using for “worst” is three-fold:

  • First, the holding of the case is unambiguously still guiding precedent.
  • Second, the holding of the case is inconsistent with the Constitution.
  • Third, the case either A) has egregious consequences for individual liberty or B) is clearly ideological- or policy-driven rubbish as a matter of constitutional law (whether or not I happen to like the consequences).

Under the first prong, I will exclude from consideration a number of infamously horrific decisions: Dred Scott (ruling black people aren’t citizens), Plessy v. Ferguson (allowing separate-but-equal), Buck v. Bell (permitting compulsory sterilization), and Korematsu v. United States (upholding Japanese internment camps).

Dred Scott and Plessy have been clearly overruled. Buck and Korematsu may not be technically be overruled, but I think the reason is just that a similar case hasn’t provided the opportunity. I may be wrong about that for Buck andKorematsu — I hope not — but I am making the assumption that they’re not good law anymore.

Using the second and third prongs, I think the case that wins the “honor” for the worst active Supreme Court decision in American history is Helvering v. Davis (1937). Helvering upheld the constitutionality of Social Security on the basis that Congress has a general power to spend on whatever it deems to be in the general welfare.

This ruling completely upended the system of enumerated powers, in which Congress only had the powers delegated to it by the Constitution, and eviscerated the Tenth Amendment that restricted the federal government to its defined roles.

Since Helvering, Congress can spend money on anything it wants, facilitating the welfare state and the immense growth of the federal government in the last 80 years. If I had to make a rough estimate, I’d say about 75% or more of the spending currently done by the federal government relies on this holding inHelvering, making the overwhelming majority of what the federal government does unconstitutional.

Thus, Helvering is the central case that flipped the system from limiting the government to what is explicitly allowed to permitting anything that isn’t explicitly banned — effectively ending federalism.

Here are various runners-up, in approximately chronological order:

  1. Slaughter-House Cases / United States v. Cruikshank (1873 / 1875)
    Rulings: Eviscerated the Privileges or Immunities Clause of the 14th Amendment, preventing the Amendment from broadly protecting individual rights to this day.
  2. Chae Chan Ping v. United States (1889)
    Ruling: Upheld the Chinese Exclusion Act on the basis that Congress has an inherent power to restrict migration into the United States, despite Congress not actually being enumerated this power.
  3. Hans v. Louisiana (1890)
    Ruling: Declared that the symbolic meaning of the 11th Amendment prevents citizens from suing their states, even though the text makes no such reference, and thus inadvertently damaged the 4th Amendment by foreclosing the most effective means of enforcing it.
  4. Home Building & Loan Association v. Blaisdell (1934)
    Ruling: Allowed states to alter banking contracts after the fact and thus effectively eliminated most of the Contracts Clause that prevents states from impairing private contractual obligations.
  5. United States v. Carolene Products / Williamson v. Lee Optical (1938 / 1955)
    Rulings: Removed virtually all protection for unenumerated rights, particularly economic liberties, and granted the government nearly unlimited power to blatantly and unambiguously promote special interests at the expense of the public.
  6. Wickard v. Filburn / Gonzales v. Raich (1942 / 2005)
    Rulings: Allowed Congress’s power to regulate interstate commerce to be used to regulate purely local and essentially non-commercial activities, and thus empowered Congress to regulate essentially anything it wants.
  7. Baker v. Carr (1962)
    Ruling: Declared that a “One Person, One Vote” standard is essential to democracy, despite the fact that the Constitution doesn’t follow OPOV in elections for the Senate or the presidency; facilitated gerrymandering by requiring every state to redo its districts every census to comply with OPOV.
  8. Jones v. Alfred H. Mayer Co. / Runyon v. McCrary (1968 / 1976)
    Rulings: Declared that Congress’s power to ban slavery includes a broad power to ban virtually anything that could conceivably be deemed discriminatory, including private individuals refusing to sell private houses or admit students to private schools based on race, and thus transformed the power to stop slavery into a broad power to restrict private and voluntary choices.
  9. Buckley v. Valeo (1976)
    Ruling: Granted broad deference to Congress on campaign finance restrictions that limit political speech, despite the 1st Amendment’s core protection being for political speech.
  10. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
    Ruling: Granted administrative agencies broad deference in creating regulations based on administrative interpretations of laws and thus granted administrative agencies of the executive branch broad lawmaking powers.
  11. McCleskey v. Kemp (1987)
    Ruling: Declared that Georgia’s application of the death penalty did not violate its victims’ Equal Protection rights, despite admitting that racism played a substantial role in determining who received the death penalty and, by implication, insulated the entire criminal justice system from any obligation not to be discriminatory in effect or operation.
  12. Morrison v. Olson (1988)
    Ruling: Allowed Congress to create an independent counsel with the power to investigate and prosecute people independent of the president, even though the president is vested with executive power, and prosecutions are purely executive powers.
  13. Kelo v. City of New London (2005)
    Ruling: Declared that using the power of eminent domain to take property from poorer people and give the property to large corporations (who pay more taxes) to be a “public use” under the Takings Clause of the 5th Amendment.
  14. NFIB v. Sebelius (2012)
    Ruling: Allowed Congress to force people to buy health insurance from private companies on the basis of the regulation being a “tax,” by implication allowing Congress do virtually anything with the taxing power that no independent power, even the expansive Commerce Clause, would allow.

I could think of a few other cases, but I feel like the worst ever and 14 runners-up are at least a pretty good start.

Feel free to disagree with any choice and add your own nominees for badly decided cases in the comments.

Sean J. Rosenthal

Sean J. Rosenthal graduated from Georgetown University with a major in history and mathematics in 2011. He will be graduating from Boston University School of Law with a J.D. and an LL.M. in Banking and Financial Law in May 2015.

RELATED ARTICLE: The Supreme Court and the Second Amendment: Understanding the Court’s Landmark Decisions

Can the IRS Rewrite Obamacare?

The latest challenge to the Affordable Care Act might let them by EVAN BERNICK.

Does the law mean what it says, or whatever government officials want it to mean? That is the fundamental question confronting the Supreme Court in King v. Burwell, the latest challenge to the Affordable Care Act. While the answer would be uncontroversial in an ordinary case, nothing involving Obamacare is uncontroversial. It will take a Court committed to the principle of judicial engagement to say what the law is, rather than what the executive branch thinks it ought to be.

King concerns the IRS’s interpretation of a section of the ACA concerning tax credits for buying health insurance from government-operated insurance exchanges. Wishing states to set up their own exchanges but lacking constitutional authority to force them to do so, Congress used a carrot-and-stick approach, authorizing tax credits to help qualifying individuals purchase health insurance “through an Exchange established by the State.”

As a failsafe, the ACA required the Secretary of Health and Human Services to create federally operated exchanges in states that declined to set up their own. When 34 states declined to establish their own exchanges, the IRS decided that it would issue tax credits through federal exchanges, despite a lack of explicit authorization in the ACA’s text. It has been doing so since January 1st, 2014. The question is whether the ACA actually permits it to do so.

Why did the IRS think that it had such authority? In finalizing its rule, the IRS stated that its interpretation of the ACA was “consistent with the language, purpose, and structure of section 36B [of the ACA] and the Affordable Care Act as a whole.” The IRS invoked “statutory language” and “legislative history” as supporting its position without specifying what statutory language or legislative history supported its position. Thus, the IRS did not provide a reasoned explanation for its actions–it acted arbitrarily.

Despite the government’s efforts to paint the relevant text of the ACA as ambiguous, the meaning of the text is in fact clear. The law says the tax credits go only to people to purchase insurance on an “Exchange established by the State.” The ACA expressly provides that “‘State’ means each of the 50 States and the District of Columbia.” Congress knew how to provide that non-state entities be treated as states–in fact, it did so elsewhere in the ACA, providing that a federal territory that establishes an exchange “shall be treated as a state.” It did not do so in this context. As Justice Alito put it at oral argument on Wednesday, “If Congress did not want the phrase ‘established by the State’ to mean what that would normally be taken to mean, why did they use that language?” Seeking to defend the IRS’s rule, Solicitor General Donald Verrilli bobbed and weaved but could not give a satisfactory answer, leading Justice Kennedy to observe that his arguments “seem(ed)… to go in the wrong direction.”

The Supreme Court has consistently held that agencies cannot rewrite congressionally enacted statutes under the pretense of implementing them. Last year, in Michigan v. Bay Mills Indian Community, the Court refused to engage in a “holistic” interpretation of the Indian Gaming Regulations Act to allow the state of Michigan to enjoin illegal gambling that did not take place on Indian lands. As Justice Kagan put it, writing for the Court, “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language.” The language at issue in King, considered in context, is clear, and that meaning should prevail.

Why does it matter that the ACA be taken to mean what it says? What is at stake? Nothing less than the rule of law–the existence of a legal order characterized by a clear, non-contradictory, and stable rules that are general in scope and bind government officials no less than ordinary citizens.

If written laws can be revised after the fact by unelected bureaucrats who do not treat them as imposing any genuine constraints, we do not have the rule of law; instead, government officials can simply employ whatever reasoning they like (or none at all, as the IRS appears to have done here) in order to further whatever ends they think desirable. To allow the current administration to transform “X” into “not X” is to move us closer to that precipice. The “victors” today will be victims of unchecked government power tomorrow.

In order to defend the rule of law, the Supreme Court must engage with the law as written. It must seek the truth concerning the political choices and tradeoffs manifested in the ACA itself. As Thomas Paine once put it, “In America, the law is king.” In King, the Court must make plain where the authority lies.

ABOUT EVAN BERNICK

Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.

EDITORS NOTE: This article originally appeared on The Huffington PostThe featured image is courtesy of FEE and Shutterstock.

Coalition of African-American Pastors: Biased SCOTUS Justices must Recuse Themselves from Same-Sex Marriage Case

Rev. Williams Owens, President and Founder of the Coalition of African-American Pastors (CAAP) called on Supreme Court Justices Ginsburg and Kagan to recuse themselves from the same-sex marriage case to be heard by the Court this session, citing their stated bias. In order to preserve the integrity of the Court, CAAP also announced its intention of launching a petition campaign that would bring attention to the Justice’s lack of impartiality.

The move sprung from public comments made by Justice Ginsburg regarding her conviction that that American public would accept a ruling for same-sex marriage as well as actions by both Ginsburg and Kagan that confirm their biased position on the issue. Both Justices have performed same-sex weddings.

“A Justice of the Supreme Court is called on to avoid the appearance of bias—especially on a highly controversial and sensitive issue that is currently before the Court,” stated Rev. William Owens, President of the Coalition of African American Pastors. “And yet, both Justice Ginsburg and Justice Kagan have taken a public stance in favor of same-sex marriage, even going so far as to officiate at a same-sex wedding.”

“Not only is this a breach of ethics, but it calls into question the integrity of the Court and the supposed balance that the judicial branch is meant to provide in Constitutional interpretation,” Rev. Owens continued. “It is beyond objectionable that no action has yet been taken to ensure that the case will be adjudicated fairly. And so it falls to us, the people, to take action. CAAP is launching a petition urging Justices Kagan and Ginsburg remove themselves from decision-making on this issue and prevent a crisis brought on by the taint of a biased judiciary.”

“The Court has shown willingness in the past to insert itself in matters that are more properly the domain of the voters,” he said. “For a case that promises to dramatically affect the future of family, religious freedom, and much more, there cannot be any question of political bias on the part of the judges involved. We ask that Justice Ginsburg and Justice Kagan disqualify themselves from involvement in this case or that the Chief Justice Roberts takes the action needed to protect the integrity of the Court.”

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EDITORS NOTE: Reverend Owens noted that members of the public are welcome to sign the petition on the CAAP website at caapusa.org.

Why Not One Governor is Qualified to be President

Our Constitution has become a suicide pact.

That’s the view of Thomas Jefferson, expressed in an 1819 letter to jurist Spencer Roane, when he said “If this opinion be sound, then indeed is our constitution a complete felo de se”(suicide pact). The opinion Jefferson referred to is the legitimacy of judicial review, the idea, as he put it, that “gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres.” He warned that accepting such a doctrine makes “the Judiciary a despotic branch” that acts as “an oligarchy.”

That “opinion” has been accepted. The despotism has befallen us. The oligarchy reigns.

In recent times federal judges have ruled that Arizona must provide driver’s licenses for illegal aliens, states such as Utah and Alabama must allow faux marriage, and a Wisconsin voter-identification law is unconstitutional. And these are just a few examples of judicial usurpations that continue unabated and go unanswered. But the answer, which needs to be given first and foremost by governors, is simple:

“No.

No — I will not abide by the court’s unjust ruling. The Constitution is the supreme law of the land and, insofar as the central government or judiciary violates it, it renders itself illegitimate. As the governor of my state and head of its executive branch, I am charged with the enforcement of its laws. And we will recognize no more unconstitutional juridical or federal dictates.”

(Note: while my main focus here is our much abused judicial review, I’m advocating the same course with respect to all unconstitutional dictates.)

If this seems radical, note that even Abraham Lincoln agreed, saying in his first inaugural address, “[I]f the policy of the government, upon the vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court…the people will have ceased to be their own masters, having to that extent resigned their government into the hands of that eminent tribunal.”

The process I’m advocating here is known as nullification. And should anyone still think it radical or unprecedented, know that we’d only be taking a leaf out of the Left’s book. Explanation?

What do you think “sanctuary cities” are?

They’re places where liberals have decided they’re simply going to resist federal immigration law.

What do you think is happening when states (e.g., Colorado) and leftist municipalities ignore federal drug laws? Nullification is happening.

Yet no matter how egregious, un-American, unconstitutional and despotic the federal or judicial usurpations, the conservative response is typified by what Utah governor Gary Herbert said — feeling oh-so principled, I’m sure — after the federal faux-marriage ruling: “[U]ltimately we are a nation of laws and we here in Utah will uphold the law.” Yes, we’re supposed to be a nation subject to the rule of law.

Not the rule of lawyers.

And our governors are allowing subjection to the latter, feeling noble playing by rules the Left laughs at.

It’s not surprising that revolutionary spirit has been cornered by liberals. The only consistent definition of “liberal” is “desire to change the status quo” — it is revolutionary by definition. In contrast, the only consistent definition of “conservative” involves something antithetical to revolution: the desire to maintain the status quo. Of course, it completely eludes conservatives that today’s status quo was created by yesterday’s liberals. And one modern status quo is to lose culture-war and political battles to the Left. And, boy, do conservatives ever maintain that one. They’re like a guy who goes into a fight, gets poked in the eyes and kicked in the kneecaps, loses, and then the next time still thinks he’s got to follow Queensbury rules.

We hear a lot of talk about “states’ rights.” Ex-Texas governor Rick Perry was a good example of a big talker. But where’s the beef? Merely flapping lips doesn’t sink big-government ships. There have been nullification efforts by state legislatures, mainly regarding federal gun-control law, and many sheriffs across the country have vowed not to enforce such law. And Alabama’s Judge Roy Moore is currently defying a federal faux-marriage ruling. This is laudable, but why are the chief executives MIA? If only we had a governor with the guts of a good sheriff.

We’re meant to be a nation of states, not a nation state. But rights mean nothing if you’re not eternally vigilant in their defense, if you don’t actively stand against those who would trample them. In 2013, Attorney General Eric Holder threatened Kansas with legal action over a new anti-federal-gun-control state law. If the courts ruled against the state, what would Governor Sam Brownback do? Make some “principled” comments about the rule of law (lessness) and then assume the prone position?

This is why I say not one governor is truly qualified to be president: If a chief executive will not oppose federal tyranny while the head of a state government, why should we think he’d oppose federal tyranny once head of the federal government?

History teaches that entities don’t willingly relinquish power; it didn’t happen in 1776 and it won’t happen now. People are generally quite zealous about increasing their power, though. This returns us to the courts’ usurpations. Do you know where the power of “judicial review” came from? It was declared in the 1803 Marbury v. Madison decision — by the Supreme Court.

That’s right: the Supreme Court gave the Supreme Court the Supreme Court’s despotic power.

Of course, unilateral declarations of power are not at all unusual historically. It’s what happened whenever an agent of tyranny — whether it was a conquering king, communist force or crime syndicate — took over. But these despotisms were enforced, as Mao put it, “through the barrel of a gun.” It wasn’t usually the case that the subjects rolled over like trained dogs lapping up lawyer-craft. Oh, it’s not that I don’t see the crafty lawyers’ position. I might like to crown myself Emperor of America, but, should I insist I possess this unilaterally-declared status with enough conviction, I may get a stay in a mental institution. The courts get to dictate to everyone else and spread insanity all the way around.

Perhaps it needn’t be stated, but the power of judicial review isn’t in the Constitution. So is it any wonder that a federal court, concerned about Barack Obama’s comments relating to the judiciary, asked his administration in 2012 to submit a formal letter indicating whether or not it recognized the power? Judicial review, being an invention, is dependent upon the acquiescence of the other two branches of government.

Oh, and what is Obama’s actual position? He believes in the court’s power — when it serves his agenda. Otherwise, he’s willing to ignore court rulings himself, as he did when suing Texas over voter ID in 2013. (In fact, never mind the courts. Obama ignores duly enacted federal law he doesn’t like.)

The lesson?

We can even learn from Obama.

The idea of judicial review is thoroughly un-American. As Jefferson also pointed out, judges are not morally superior to anyone else, having “with others the same passions for party, for power, and the privilege of their corps.” Despite this, he wrote in his letter to Roane, while we’re meant to have “three departments, co-ordinate and independent, that they might check and balance one another,” judicial review has given “to one of them alone, the right to prescribe rules for the government of the others”; moreover, he continued, this power was given to the very branch that “is unelected by, and independent of the nation.”  Jefferson then warned that this has made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” And our country is being twisted along with it as patriots twist in the wind.

Jefferson’s position is just common sense. We cannot be a government of, by and for the people if 9 unelected Americans in black robes can act as an oligarchy and impose their biased vision of the law on 317 million Americans. That is not what the Founding Fathers intended.

Nonetheless, most conservatives are waiting for the next election or the next court ruling or the next president to right the ship, but they and their republic will die waiting when remedial action can be taken now. Nullification — when properly exercised, it’s a fancy way of saying “standing up for the law of the land.” Were I a governor, I’d tell the feds to pound sand and that if they didn’t like it, to send in the troops. I might ultimately end up in federal prison, but I’d light a fire and spark a movement — and become a hero and martyr to millions.

It’s waiting there for you, governors, glory and God’s work. We just need a leader, someone with greater passions for principle than “for party, for power.” It’s waiting.

Rise, American hero, rise.

Contact Selwyn Duke, follow him on Twitter or log on to SelwynDuke.com