Judicial activism in Trump travel suspension case is dangerous

The recent hullabaloo over President Donald Trump’s temporary suspension of travel from seven Middle Eastern countries with ties to Islamic terrorism has dominated the early days of his administration. Trump’s action suspends entry to the country as his administration seeks better methods of vetting potential visitors to the U.S. for national security reasons. This incident has brought to the fore once again the high degree of activism in the federal judiciary.

Judicial activism involves interpreting the U.S. Constitution and the nation’s laws to achieve some non-legal, socially desirable leftist/liberal end favored by judges. Politics trumps the law.

The first instance of activism occurred in a federal District Court in Washington State, where Judge James Robart allowed a suit by the state’s attorney general to go forward, despite the fact that Washington State did not have legal standing to sue the federal government over Trump’s executive order. To establish legal standing a plaintiff – in this case, the whole of the State of Washington, not some individuals or some entities within the state – must demonstrate that the travel suspension would cause it irreparable harm. According to uslegal.com “irreparable harm” means that “the type of harm threatened cannot be corrected through monetary compensation or conditions cannot be put back the way they were.”

Robarts ruled that a ban on travelers from seven countries “affects the state’s residents in areas of employment, education, business, family relations and freedom to travel,” and said it also harmed the state’s public universities and tax base.

How many citizens of these seven countries actually work or attend a college or university in the state of Washington, and of that number how many are not within the borders of the United States at this time? Is it likely that there are sufficient numbers of them that their absence for another 90 days will actually cause the State of Washington – not the institutions or employers, but the state itself – irreparable harm? It is reasonable to believe that there are relatively few people in these circumstances, and that the harm would be of little significance to State of Washington.

However, in his ruling, Robart said the Washington AG had met the high burden to justify a restraining order by showing that Trump’s order was causing “immediate and irreparable injury,” and that the state had a substantial likelihood of winning its underlying lawsuit challenging the constitutionality of the travel ban.

Interestingly, U.S. District Judge Nathaniel Gorton in Massachusetts reached the opposite decision earlier the same day. He understood the law that gives the president the exclusive authority on national-security grounds to impose the temporary suspension on travel to the U.S., and that under the U.S. Constitution immigration is under control of the president, not the judiciary.

Title 8 United States Code, section 1182(f), which was enacted as section 212(f) of the Immigration and Nationality Act, is entitled “Suspension of Entry or Imposition of Restrictions by President” and states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

That statement is clear as it can be: the president has the authority to do what Trump did. The president, not the judiciary, has both constitutional authority and statutory authority over immigration, as former President Barack Obama would say, “Period!”

The administration appealed Robart’s flawed ruling to the Ninth Circuit Court in San Francisco, and the three judges who heard the appeal predictably upheld the initial ruling, since this appellate court is notoriously liberal/activist, and has the reputation for being a federal court whose decisions are frequently overturned by the U.S. Supreme Court.

Neither Robart nor the three Ninth Circuit judges – William Canby Jr., Richard Clifton and Michelle Friedland – dealt with the actual law giving the president the authority to do what Trump did in any meaningful way. They acted outside their narrow area of authority and improperly interfered with lawful actions by the president.

Since Robart issued the temporary restraining order on February 3rd, 77 percent of 1,100 immigrants/refugees that had entered the U.S. at the time the situation was analyzed came from the seven countries in the travel suspension, a substantial increase since before the order was issued.

Perhaps none of them are terrorists or will become terrorists and commit some atrocity against Americans, but this is a prime opportunity for terrorists to get into the United States, with the blessing of four federal judges.

Constitutional law scholar and conservative talk radio host Mark Levin termed the appellate court’s decision to uphold the stay as “disgraceful” and “pathetic.” Levin points out that the court has improperly conferred due process and constitutional rights onto this class of individuals.

Judicial activism does not always create potentially dangerous situations, as this incident has, but all activism is harmful to some degree, and must end.

As Obama exits the White House, a look at some of his presidency

 

Back in 2007, a candidate for president named Barack Obama arose from near obscurity to seek the Democrat Party nomination for the 2008 election. He won the nomination, defeating a well-known opponent, and then won the election to become the first black/African-American President of the United States, and would serve two full terms.

So much promise surrounded this event that even before his inauguration he was being spoken of in glowing terms because he was the first of his race and for all the great and wonderful things that would occur, based on his campaign messages.

The respected Nobel Committee even awarded him its Peace Prize in December of 2009," only several months after he was sworn in, for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples."

The stage was set for great things; a barrier had been breached. At last America had its first black president. But, alas, so much good that could have happened, didn’t.

Obama doesn’t understand or appreciate the nation he was elected to lead, so his goal wasn’t to honor and advance America’s traditional principles and standards, but to “fundamentally transform” it, as he said repeatedly. That transformation hasn’t been especially attractive.

He promised to have the most transparent administration in history. Yet so much of Obama’s personal background documentation, like his college records, has been safely hidden away from the people he serves. A Townhall.com article says “a new report out finds that he hasn't even run the most transparent administration since the previous one.”

Quoting an analysis of federal data produced by the Associated Press, the Townhall article continues: “More often than ever, the administration censored government files or outright denied access to them last year under the U.S. Freedom of Information Act, cited more legal exceptions it said justified withholding materials and refused a record number of times to turn over files quickly that might be especially newsworthy.”

Taking office on the downside of a significant recession, eight years later the economy has still not fully regained its former strength. He touts the U-3 unemployment rate as proof that the Obama recovery was successful, but tens of millions who couldn’t find a job dropped out of the workforce, thereby producing an unemployment rate in the respectable range near 5 percent.

The U-6 rate, which counts those discouraged workers that the U-3 ignores – the more accurate figure – sits at approximately twice the U-3 rate, and the Labor Force Participation Rate, which shows what portion of eligible workers are working or looking for a job, is at its lowest point since the late 1970s.

The nation’s productivity has been handcuffed by over-regulation and punishing tax rates, which encourage businesses to move jobs and factories to other nations where the business environment is friendlier. A healthy GDP rate is above the 3 percent mark, but Real Clear Politics (RCP) reports, “Under President Obama, annual economic growth from 2010 through the first three quarters of 2016 averaged 2.1 percent, which RCP termed “subpar.”

Where domestic policy is concerned, The Daily Signal provided these tidbits from The Heritage Foundation last week:

·         In 2009 when Obama took office the National Debt was $10.6 trillion; today it is $19.5 trillion, and counting; nearly twice the rate he inherited.

·         200 new regulations have increased the regulatory burden by $108 billion annually, a burden on the shoulders of everyday Americans. Regulations aimed at climate change will kill hundreds of thousands of jobs and increase what American households spend on electricity by 13 to 20 percent over the next 20 years.

·         The Affordable Care Act is anything but affordable. Many Americans have not been able to keep their doctors; 12 of the 23 co-ops have failed, costing taxpayers $1.2 billion, and forcing 740 thousand to scramble to try to find health insurance.

·         Food stamp claimants rose from fewer than 30 million in 2008 to 46.5 million by 2014.

·         Obama’s imperial presidency granted amnesty to millions of illegal immigrants and mandated transgender bathroom policies for public schools by using executive orders to circumnavigate Congress to get his way.

Obama claims that 75 consecutive months of positive job creation during his term is the best ever, which is true. However, this stretch produced 11.3 million new jobs, which is less than two of the last five presidents, according to a report by Business Insider, which says, “Obama ranks third among the past five presidents in total job creation over the length of his presidency — in front of both George H.W. and George W. Bush, but behind Bill Clinton and Ronald Reagan,” with Clinton creating about 23 million and Reagan creating about 16 million.

Under Barack Obama’s heavily ideological presidency America is weaker, more divided, less trusted by its allies, and suffers other ill effects. Voters regarded his leadership as poor enough to cause them to abandon the Democrat Party, producing heavy losses at the federal and state levels.

Despite all of this, in Obama’s highly narcissistic perspective, his was a wonderfully successful presidency. But by American standards, his presidency represents a clear and dramatic failure of leadership, and it will take years to repair the damage his presidency has produced.

The Trump transition is well underway, despite his enemies’ wishes

Two weeks after the presidential election, things are moving forward for President-Elect Donald Trump, who is busy selecting individuals for administration posts.

Last week, Trump’s first two appointments were Republican National Committee Chairman Reince Priebus as chief of staff and former head of Breitbart News, Stephen Bannon, as chief strategist.

Amid assessments of the transition’s first few days as chaotic and on the cusp of failure, Bannon’s choice drew sharp criticism from the leftist Trump opponents and the major media, who are determined to criticize most everything Trump’s team does or says.

Next came the choice of retired Lt. Gen. Michael T. Flynn as national security adviser, Rep. Mike Pompeo (R-Kan.) as director of the CIA, and Sen. Jeff Sessions, (R-Ala.) for Attorney General, subject to Senate approval, and meetings Saturday with 2012 Republican presidential candidate Mitt Romney, thought to be a candidate for secretary of state, and with retired Marine Corps Gen. James Mattis, who is said to be a potential contender for defense secretary.

Meetings with potential selectees continued through the weekend, stoking the fires of speculation about who might go where and, of course, the predictable Democrat opposition’s criticism of people under consideration, as well as those already chosen.

As bad a choice as media and political enemies believe Trump to be, so far his transition is right on schedule.

Saturday, Trump took action to remove what likely would have become a big distraction to organizing his administration, doing so prior to being sworn in, and which likely would have continued at least into the early months of his presidency. Agreeing to a settlement of $25 million, three lawsuits aimed at Trump University have been resolved. The agreement also includes $1 million in penalties to the state of New York.

Former students of the school claimed that they paid thousands of dollars to learn Trump’s real estate success secrets, but contended that they were lured into paying up to $35,000 to learn from instructors hand-picked by Trump, which they claim did not happen.

The settlement was negotiated between Trump’s lawyers and New York Attorney General Eric Schneiderman and the law firm that brought the suit against the now closed school. The settlement does not require an admission of guilt from Trump, but Trump’s organization issued a statement that said, "We are pleased to announce the complete resolution of all litigation involving Trump University. While we have no doubt that Trump University would have prevailed at trial based on the merits of this case, resolution of these matters allows President-Elect Trump to devote his full attention to the important issues facing our great nation."

If there is a downside to settling the lawsuits, it is that we may never know which side is right. Did Trump defraud the students, or is it merely an opportunity seized upon by students and lawyers hoping for a big payout?

Removing what would have become a huge distraction enables Trump to get on with the business of organizing his presidency, even as his political enemies occupy themselves with petty criticisms about appointments and who he is talking with, suggestions of who he should be talking with, and arguing about whether it was FBI Director James Comey’s handling of the email investigation or the Electoral College that defeated Hillary Clinton, not Donald Trump.

Democrats have begun a move to have the Electoral College, the Constitutional mechanism to determine who becomes president, replaced by the popular vote. At the Constitutional Convention, several methods of electing a president were considered, but the Founders well knew the dangers of consolidated power. After much debate and compromise they devised a system that instead distributed power more broadly, balancing federal powers with those of the states, and providing a voice to all states, not just the most populous. 

As Heritage Foundation legal expert Hans von Spakovsky noted: “In creating the basic architecture of the American government, the Founders struggled to satisfy each state’s demand for greater representation while attempting to balance popular sovereignty against the risk posed to the minority from majoritarian rule.”

And the result has been that the Electoral College has provided stability to the process of picking presidents. Though the national popular vote winner typically wins the presidency, that vote failed to determine the winner in four previous elections: 1824, 1876, 1888, and 2000, and the republic survived quite well, thank you.

And the wisdom of the Founders has once again been proven in the 2016 election where the least desirable candidate, Hillary Clinton, wound up with a comparatively thin popular vote margin of 50.6 percent of the vote to Trump’s 49.4 percent; 1.4 million votes out of 124.7 million, meaning that Clinton got 1.15 more votes per hundred voters than Trump did.

A margin this thin is well within the margin of error of political polling, and hardly worthy of the hysteria that has been demonstrated by this miniscule difference in vote totals.

What this effort does best is illustrate the level of desperation, disbelief and unwillingness to accept the outcome that is so firmly ingrained into the political left and their sub-faction, the major national media.

But as before, the republic will endure and thrive.

Republicans face problems in debates and the House of Representatives

Say what you will about the way CNBC conducted the Republican debate, the business side of NBC News did something that neither Fox News nor CNN were able to do.

All three had similarities, like gotcha questions and efforts to pit one candidate against another, elements that obstructed a discussion of the serious issues of electing a nominee for President of the United States, rather than assisting voters in making an informed decision. To the extent that real issues arose, the combative atmosphere moderators created in all three debates got in the way.

In sharp contrast to the mood in Republican debates was the Democrat debate on CNN, which also failed to reveal important information about the candidates, but approached not doing so by giving hugs and kisses to the candidates.

CNBC was both over the top and under the table. The three moderators were clearly not up to conducting a meaningful debate, not even on business and economic issues, and the muddle that resulted drew almost universal criticism. Moderators were poorly prepared, partisan, thought they were the stars of the show, were argumentative and often interrupted the candidates. While so many TV news people seem infected with the idea that being quarrelsome is cool, CNBC took that to a new level. You can challenge candidates on issues and answers, and still be civil.

However, as horrible as it was, CNBC did succeed in uniting the candidates for the first time since the campaign began, if only against CNBC’s amateurish approach, and the revolt that followed did produce a little discussion of important issues.

The 2016 debate series should be a valuable element in the process of selecting presidential candidates. Along with public and media appearances, the debates are opportunities for voters to hear candidates discuss their platforms and they are the only vehicle where the pros and cons of the various positions are aired in a way that voters have the opportunity to evaluate them side-by-side. 

So far they all have been disappointing, in terms of illuminating the candidate’s views, but CNBC wins the brown ribbon for the absolute worst. In place of questions on substantive issues, the moderators worked hard to trap and demean the Republican participants, which is very different from challenging them on issues.

Unfortunately, our campaign process identifies the best candidate, not necessarily the person best suited to be president. So much is based on appearance and performance, rather than candidates’ understanding of the country’s problems and sensible ideas for addressing them. A track record of success takes a back seat to image, charm and glibness.

And Republicans have the additional obstacle posed by the liberals in the media, who often misunderstand and not infrequently deliberately mischaracterize their objectives, and tell the world how awful they are.

Granted that the GOP is sharply divided, unlike the Democrat Party that pretty much possesses no diversity of thought. But the left portrays this Republican diversity as a weakness, which is interesting, since the left considers diversity one of the most important things in life.

It suits the purposes of the left to mischaracterize and demonize the House Freedom Caucus, the Tea Party groups and other elements of the right, and there are plenty of media sources indulging in that activity.

Some, commenting on Wisconsin Republican Paul Ryan’s election as House Speaker, wonder how he will possibly be able to manage such an unruly group. The liberal writers characterize the conservative Republican bloc with terms such as “right-wing fringe” and “radicals.”

The liberal writers are happy to offer guidance to conservatives, such as that if their subgroup wants to set policy for its party, all it needs is to have a majority of the party’s support. And if it doesn’t have a majority, it should meekly abandon its position and support the position of the majority.

And that no doubt would please liberals and Democrats, and many Republicans. However, millions of Republican voters recognize that this approach is largely why things are worse today than when the GOP gained control of the Congress, and why the Republican Congress has been so ineffective at representing their views.

These conservative House members were elected not to offer their ideas and then surrender, they were elected to fight for their supporter’s beliefs in the traditional conservative values that built the country, and to stick by them. Isn’t that what republican government is all about?

The liberals advise that when voters have put one party in charge of the executive branch and another party in charge of the legislative branch, as is the case today, compromise is demanded to move the country forward.

However, compromise does not mean surrender, as many of these “advisors” suggest. One does not oppose a bill with multiple objectionable elements, and then “compromise” by accepting the whole package when others resist changes. The two sides identify those elements they agree on, take the rest out of the legislation, and move the compromise measure forward.

Compromise means that everyone gives up something, not just the conservative Republicans. It is sad – even dangerous – that so many Republicans do not understand this.

Things confirmed and learned at the first Democrat candidate debate

Most people seem to think Hillary Clinton won the first Democrat debate, and she did put forth a good showing, even if the atmosphere and comments from her opponents were decidedly soft and friendly. The other debaters did not challenge the top-rated candidate.

However, fans of Bernie Sanders disagree, believing the Vermont senator was the best of the five. Sanders is the only candidate who admits to being a socialist, a “democratic socialist” to be precise, although he found little opposition to his socialist views from the rest of the group, illustrating that the entire Democrat field shares his affection for socialist dogma.

Reviewing the comments during the debate it was confirmed – if, indeed, there was ever any question – that the Democrat Party is the party of exchanging free stuff for votes, their largess made possible by those of us who pay taxes. There was so little disagreement among the debaters that some observers think that the other four candidates have realized that Clinton will be the nominee, and they seemed to be campaigning not for the nomination, but for a position in the Clinton2 administration.

The “party of diversity” is far less diverse than the Republicans, who have 1 woman, 1 black man, 2 candidates of Cuban descent, 1 of Asian descent, some older candidates and some young candidates. The Democrats, the party of people who are around 70 years old, have 1 older white woman and 2 older white men, and two middle-aged white guys.

Based on questions, comments and crowd response, Democrats do not object to Clinton putting national security at risk by shunning the government email communications system employees are expected to use in favor of her own private system for official government communications. In order to defend the former Secretary of State one must ignore that her decision to do so was “inconsistent with long-established policies and practices under the Federal Records Act and NARA regulations governing all federal agencies,” according to congressional testimony of Jason R. Baron, a former director of litigation at the National Archives. To the Democrats, it is merely a distraction from the business of getting Clinton the nomination.

Reports say that “journalists” in the pressroom exploded in applause and laughter when Sanders said the American people are sick and tired of hearing about the “damned emails!”

It was confirmed that the Democrat candidates and audience members believe the deaths of four Americans in the Benghazi assault are not important. It’s old news; just another distraction. Apparently those of us who think Benghazi is important, or ISIS, or the economy, the national debt, or the millions of potential workers driven out of the workforce by the lousy job market created by the slowest recovery in 80 years are clearly on the wrong track. Climate change, gun control and giving away free stuff are clearly at the top of their agenda. They seem not to understand that nothing is free.

They all think pretty much alike, and believe that any diversion from the “party line” is wrong, whereas the Republican candidates have divergent views about important issues. Their diversity causes a great deal of consternation and disagreement among GOP supporters and conservatives, but reflects the sense of our Founding Fathers that robust debate of contrary ideas is a foundational principal of good government.

Sanders scored points with the statement that the United States “should not be the country that has … more wealth and income inequality than any other country.” Factcheck.org found, however, that the U.S. ranks 42nd in income inequality, according to the World Bank, and placed 16th out of 46 nations in the share of wealth held by the richest one percent of the nation’s citizens. Sanders’ vision of a socialist utopia cannot stand up against the glare of facts.

Clinton gave an interesting answer to the question, “Which enemy that you’ve made during your political career are you most proud of?” In addition to the NRA, the drug companies, the health insurance companies, and the Iranians, she said that the Republicans were her proudest enemy. Interesting that she compares insurance companies, drug companies, the NRA and Republicans to the Iranians.

Jim Webb, by contrast – the former Marine Corps First Lieutenant and Navy Secretary – said he was most proud of having dispatched “the enemy soldier that threw the grenade that wounded me” during the Viet Nam War. While killing that enemy soldier, Webb saved a fellow Marine, and won the Navy Cross. Clearly, his answer wasn’t as appropriate as Clinton’s.

She told viewers that what separates her from being a third term of the Obama presidency is that she is a woman, and mentioned being a woman as a good reason to elect her more than once during the debate. Remembering what happened after the manic drive to elect the first African-American president, we should be very wary of electing someone president because that person is a woman.

That is especially true of one who thinks she deserves to be elected, and cites her gender as the only reason she won’t be a continuation of the disastrous Obama presidency.

The Latest from Bones

 

End of an error? The State of the Union campaign event needs to go

The State of the Union address to Congress is really just a routine presidential duty defined in Article II, Section 3 of the U.S. Constitution, ratified in 1787-88: "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."

That simple requirement to update the Congress and recommend certain things the president thinks are important has evolved into the political orgy we now witness each year.

We have become accustomed to the spectacle of last week because that is the way the message has been delivered for a hundred years. However, there is no requirement for the president to actually appear before the Congress and orally deliver the message. And in fact, beginning with Thomas Jefferson's first State of the Union in 1801 and lasting until William Howard Taft's final message in 1912, the State of the Union was a written, often lengthy, report sent to Congress at the beginning of a new Session of Congress.

It’s time to return to the more sensible and less hype-driven process of Jefferson through Taft, because instead of a restrained message addressing the problems the country faces and perhaps some discussion of the successes that it has experienced, for years we’ve been treated to a campaign event all dolled up into a grandiose political revue that is little more than an exercise in political expedience.

It is a stage perfectly set for the delivery of propaganda with no real-time truth detector. The president says whatever he wants to say, and with the possible exception of a sour expression on the face of someone in the audience, or an unacceptable verbal complaint like the one back in 2009, there is no contrary opinion expressed until after the speech when the opposition party responds. By that time, many have tuned out, and given the setting and the pomp, and the fact that people still respect the office enough to often accept a president at his word, the damage is pretty much done.

Remaining true to form, at this year’s address President Barack Obama did not let the opportunity pass without making sure he got his points across, even if they were at odds with reality.

No less a dependable source for advocating liberal positions than The Washington Post identified six of Mr. Obama’s claims that attracted the attention of fact-checkers, presenting them in “a guide through some of President Obama’s more fact-challenged claims.”

In one of them the president noted, “the more than eight million new jobs our businesses have created over the past four years.”

Subtracting the jobs created not by businesses, but by government, that number is actually 7.6 million, and that number is correct, as far as the claim goes. The Post says the net new jobs created during the Obama administration is 3.2 million, and that there are 1.2 million fewer jobs today than when the recession began in December 2007.

Further, Newsmax reports that by last April, the number of Americans on food stamps had grown by 16 million since January 2009, which is more than twice as many people as got jobs.

“Our deficits — cut by more than half,” Mr. Obama bragged.

However, according to The Post, ”the federal budget deficit has declined in half since 2009, from $1.3 trillion to about $600 billion, but that’s not much to brag about. The 2009 figure was not just a deficit Obama inherited from his predecessor, since it also reflected the impact of decisions, such as the $800 billion stimulus bill, enacted early in the president’s term.

“Moreover, the deficit soared in the first place because of the recession, so as the economy has improved, the deficit naturally decreased.  The United States still has a deficit higher than it was in nominal terms and as a percentage of gross domestic product than it was in 2008 and a debt much greater as a percentage of the overall economy than it was prior to the recession.”

The only beneficiaries of this sort of event are the president and his fellow party members. Those who take the president at his word – and that certainly includes the millions of Americans who do not investigate what they read and hear – are less well informed than before the address.

One thing the president was accurate about was his intention to continue using Executive Orders to enact measures the Congress won’t pass, or to change them to his liking. Apparently, the former constitutional law lecturer doesn’t remember the full text of the authorizing language for the State of the Union, with emphasis on the phrase “recommend to their Consideration.” It does not say, “tell them the edicts he will issue if the Congress does not act.”

President Obama needs a remedial class in what the Constitution means. The Executive and the Legislative Branches are co-equal, along with the Judicial Branch; the president cannot make law, dictate what laws Congress will pass, or alter laws he does not like.

Why won’t the Congress stand up and defend its Constitutional prerogatives and obligations and make the president behave constitutionally?