Tag: law

Trump Wants To Be King

I was able to listen to the hearing before the DC Circuit this week in which Trump’s lawyers argued that the President can commit literally any crime and get away with it so long as he manages to get through impeachment. It is, to be blunt, a profoundly stupid argument. What Trump says is that the political process of impeachment of the President is a prerequisite to the criminal prosecution of a President. This is a deliberate misreading of the Constitution. Here is what the Impeachment Judgment Clause actually says:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

US Const. Art. I, §3

In other words, impeachment only removes an official from office, it is not a criminal sanction, but someone who is impeached and removed may still be charged criminally. The idea behind this clause (as made clear by the Founders at the time) was that impeachment was only a political solution, and an official still remained criminally chargeable after impeachment.

What Trump’s lawyers are arguing is that a President cannot be charged criminally unless they are convicted in an impeachment proceeding first. This argument is patently ridiculous, as the DC Circuit noted right at the outset. Under Trump’s argument, the President of the United States could order the assassination of the entire opposition party in Congress on January 19th and because there was no chance for the President to then be impeached, the President could not be criminally charged for murder. If you think that hypothetical is crazy, that is literally one of the first questions asked at the hearing, and Trump’s attorney was forced into saying that is exactly what Trump’s position is.

If there is any question why someone who was once a rock-ribbed GOP-supporting conservative is now not only voting for Joe Biden, but openly campaigning for the Democrats, that is it. The most fundamental thing in American government is that the power of the government is constrained by law. My whole disagreement with the left has been that they are too eager to use the coercive power of the state to remake society. But now the “right” is arguing that there should be no guardrails at all against Presidential power. That position is fundamentally anti-American. And while I still have a healthy skepticism of the Democratic Party, the GOP is now the biggest threat to this country out there. The January 6th insurrection was the point where anyone still supporting the GOP crossed from being a rube to being a danger. The second the GOP party line went to supporting the insurrection, it became not a political party but a terrorist organization.

Trump’s position before the Court this week is the position that the President is accountable to no one. So long as the President can either delay impeachment or keep their party to the party line, the President is free to murder, accept bribes, sell secrets, or do whatever the hell they want. That is not a position that is remotely American or remotely acceptable.

Trump wants to be a King, and the GOP is perfectly happy to let him. That is why the GOP is neither American nor conservative. That is why this conservative is all in with the Biden campaign in 2024.

The Fall of the House of Trump

“How did you go bankrupt?” Bill asked. “Two ways,” Mike said. “Gradually and then suddenly.”

Ernest Hemingway, The Sun Also Rises

A New York judge has issued an order that essentially gives the Trump Organization the corporate death penalty. Judge Arthur Engoron’s order rescinds the Trump Organization’s business charters and puts Trump’s corporate empire into a receivership. Ultimately this may do just as much or more to end Donald Trump’s reign as the many criminal indictments against him.

The Trump Organization is in the bullshit business. Real estate is just the side hustle. Trump shamelessly slapped his name on anything he could—golf courses, steaks, a failed airline, even vodka (which tee-totaling Trump does not drink). Trump is right that the main source of his revenue was through his “brand,” a brand which is now synonymous with right-wing extremism. But ultimately Trump is incredibly cash poor and highly leveraged. His real-estate empire was basically an attempt to get more and more money from lenders to keep his incredibly-leveraged empire afloat.

Now, that scheme is falling apart. Trump was already radioactive to most banks, forced to go to less savory banks connected to Saudi and Russian oligarchs. But Trump needed legitimate assets to do that, including Trump Tower and his Mar-a-Lago club. Now, Trump has run out of both legitimate assets and likely the revenue streams he needs to keep his secured creditors at bay.

Trump’s money, real or imagined, is what kept everything together. Now Trump has a voracious need for cash, not only to keep his quasi-campaign afloat, but to pay his lawyers in his numerous criminal cases and keep his standard of living going. Right now Trump is quite adept at fleecing his followers with everything from t-shirts to worthless NFTs. But that is likely not going to be enough. While their may be a sucker born every minute, Trump needs a lot of suckers to keep himself afloat, and sooner or later that well will run dry.

The question becomes what happens next. Trump will certainly appeal Judge Engoron’s ruling. That appeal is highly unlikely to change anything, but it may delay the process. However, no matter what happens, Trump’s access to credit through conventional means is likely to be incredibly curtailed. That leaves Trump even more at the mercy of Saudi autocrats, Russian oligarchs, and other unsavory characters than he already is. Whether Trump can get enough support outside of banks depends on whether the Saudis, Russians, etc. see him as a valuable investment or simply damaged goods. The more legal hot water Trump gets into the less his “Teflon” appearance becomes.

Just as in Hemingway’s quotation above, Trump’s downfall could be gradual then incredibly sudden. Trump has so far been incredibly adept at avoiding the consequences of his actions, but this ruling strikes at the heart of who he is and who he makes himself out to be. At some point Trump’s luck and bluster will run out. His only hope at this point is to win the Presidency and use the power of his office to make his legal troubles go away. Sadly for the country, there remains a precipitously high chance that could happen. But the entire Trump mystique is based on him being the world’s greatest businessman. That has never been true, and the collapse of Trump’s empire of bullshit might be more personally devastating to him than even a jail sentence.

The Switch In Time That Betrayed Nine

Veteran Supreme Court reported Jan Greenberg reports what many had speculated—that Chief Justice John Roberts switched his vote on ObamaCare, saving the bill from being declared unconstitutional. Justice Anthony Kennedy, the crucial “swing judge” even tried to get Roberts back on the side of the Court’s conservative bloc, but to no avail.

Chief Justice John Roberts

Chief Justice John Roberts of the United States Supreme Court (AP Photo)

What Roberts did, in other words, was a betrayal of his principles as a judge. Greenberg explains why Roberts switched his vote:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

The problem with Roberts’ switch is that it doesn’t accomplish what he was apparently tempted to do. Yes, right now the left-wing media is praising Roberts for taking their side and saving ObamaCare, but does anyone believe that will last? If Roberts presides over another 5-4 defeat of a major liberal initiative, he’ll be damned and criticized as before. The legitimacy of the Supreme Court will always be called into question by the left so long as the Supreme Court does its job in enforcing substantive limits on the power of the federal government. All Roberts has done is buy some temporary credit.

And that temporary credit comes at the expense of the Constitution. Ostensibly, Roberts’ opinion limits the government’s ability to use the Commerce Clause to justify mandates on individuals. But there is reason to believe that future Courts will not be bound by that language as precedent. The benefit of Roberts’ alleged limitation of the Commerce Clause may not be anywhere near as great as some conservative commentators are making it to be.

Not only that, but the logic used to justify upholding the mandate as a tax is not consistent. That argument was generally rejected by lower courts, and not taken seriously during oral arguments. The whole point of a tax is to raise revenue—which the individual mandate is not supposed to do if it actually works. If you refuse to pay a tax, the government can fine you or put you in jail—yet the individual mandate is not enforceable in that manner. Congress did not intend to turn the individual mandate into a tax, and as much as Congressional intent matters in interpreting a statute, Roberts’ decision contradicts it. The dissent treats Roberts’ arguments on the tax issue with a thinly-veiled contempt—and largely for good reason.

Roberts’ decision comes off as nakedly political—and even Roberts himself seems to want to back away from its full consequences, painting it as a choice that he did not want to make by one he made because the law demanded it. But his legal arguments are so thin that his protestations ring hollow: the argument that Roberts upheld ObamaCare in the vain hopes of preserving the legitimacy of the Court in the eyes of The New York Times seems to be the most likely explanation.

But a Justice of the Supreme Court of the United States, no less the Chief Justice, should not answer to the editorial board of The New York Times. Roberts’ initial vote was the correct one: the individual mandate is an unprecedented intrusion upon the individual liberties of the people of the United States. It is not justified in a system where we have a federal government of limited and enumerated powers. Seven Justices voted that the federal government cannot use federal funding to coerce a state into enacting a federal policy: so why can the federal government use the coercion of taxation to force individuals into supporting a federal policy that would not be otherwise justified under the Constitution? The answer should have been that the federal government can no more justify the individual mandate through taxation than they could demand that individuals quarter soldiers in their homes or pay a tax “penalty.” Both are a naked end-run around the limits placed upon the federal government by the Constitution.

Chief Justice Roberts may have justified his decision by saying that it would preserve the reputation of the Court: but he is wrong. The Court should be above the whims of politics and should act in accordance with law rather than than the opinions of newspaper editorialists. Roberts’ switch on ObamaCare was a betrayal, and however justified it diminishes the legitimacy and the independence of the Supreme Court. That was clearly not the Chief Justice’s intent, but will be the outcome.

It’s Time For ObamaCare To Face A Death Panel

The Supreme Court is currently conducting a marathon three-day session of oral arguments on the challenges to ObamaCare, an almost unprecedented amount of time for the Court to consider any case. But the ObamaCare issue isn’t just another case, or even just another case involving weighty constitutional issues. If the Court upholds ObamaCare’s individual mandate, it will put the final nail in the coffin of the federal government being a government of limited, enumerated powers. If the federal government can force everyone to buy health insurance, there’s not much holding the federal government back from forcing us to buy certain foods, drive certain cars, or engage in any other activity that the federal government deems (in its infinite wisdom) to be for the “common good.”

ObamaCare supporters argue that health care is somehow different from everything else: because we will all use the health care system at some point in our lives, the government has a higher interest in regulating it and making sure that costs are allocated “fairly.” There’s a huge flaw in that argument: it’s a license for unlimited government power. As the example goes, why couldn’t the government make everyone buy broccoli? After all, you must participate in the market for food. Even those wraith-thin supermodels have to eat at one point or another. And broccoli is good for you, which would reduce health care costs. So why can’t Michelle Obama make everyone eat broccoli, or choose to pay a “penalty?”

For that matter, since the Chevy Volt is a massive taxpayer-financed boondoggle, why not mandate that everyone must buy a Chevy Volt or pay a “penalty?” After all, everyone must somehow participate in the “transportation market,” even those people whose only interaction with the market is when they buy their motorized wheelchair to carry their beached-whale bodies to the local buffet. So why not just mandate that everyone buy a Chevy Volt or pay a fine?

In fact, since Disney is taking a bath on John Carter, why shouldn’t they lobby Congress to make everyone in the country see the movie or pay a fine? After all, everyone participates in the “entertainment market” too.

And that’s the major constitutional problem with ObamaCare: a broccoli mandate, a Chevy Volt mandate, a John Carter mandate, they’re all separated from the individual insurance mandate by degree, not by principle.

The individual mandate is the most sweeping power grab of our generation—in terms of real-world impact it makes the PATRIOT Act look timid. And yet there’s been nowhere near the outcry about ObamaCare as they has been about the PATRIOT Act.

The Tax Man (Doesn’t) Cometh

The government has argued that the individual mandate’s penalty really is a tax. The reason why the government makes this argument is because of a federal law called the Anti-Injunction Act. The Anti-Injunction Act is a federal law that prevents people from challenging taxes in courts as a way of getting out of paying taxes. In other words, if the Court bought this argument, the challenges to ObamaCare would fail.

The government’s argument that the ObamaCare penalty really is a “tax” doesn’t save them. For one, it’s an argument that goes against the facts: nothing in the health care law makes the penalty into a tax other than the fact that it was shoved into the Internal Revenue Code. The President and Congressional Democrats were adamant that it was not really a tax, otherwise they would be accused of breaking their promise not to raise taxes on the middle class. Nor is the tax But when it became legally convenient to say that the “penalty” really was a tax, the government is now making that argument. But the penalty isn’t a tax in either form or substance, so that argument is unlikely to go anywhere. And, based on the Court’s skeptical questions in today’s arguments, it looks like the tax argument isn’t likely to carry much weight.

Kill (the) Bill

The problems with ObamaCare are legion, not only is it bad policy, but it sets a precedent that wipes away the system of checks and balances that keep our system of government functioning. The Supreme Court has this opportunity to stand up for the established constitutional order and strike down the individual mandate as a violation of both the letter and the spirit of the Constitution. If they do not, the costs could be grave. There’s not only the risk of eroding freedoms, but there’s a much more concrete risk as well: ObamaCare is bad law. It won’t make health care cheaper, it won’t make it easier for people to see a doctor, it won’t save lives. It will create a system where medical care is artificially limited by the government (both directly and indirectly). If that sounds a bit like a “death panel” concept, it should. Because that’s what has to happen: the government has no magic fairy wand that they can waive over our healthcare system to make health care cost less. The only way to reduce costs is to ration, and that’s exactly what would have to be done in order to make ObamaCare work.

But the Supreme Court isn’t concerned with health care policy, at least not directly. Their concern is with the question of whether ObamaCare is consistent with our constitutional order. It is not. The individual mandate in ObamaCare is no less unconstitutional than a broccoli mandate, a Chevy Volt mandate, or a mandate to see John Carter. The Commerce Clause isn’t a blank check for the government to take effective control of an entire sector of the American economy. The Supreme Court should serve as ObamaCare’s “death panel.”

The Ninth Circuit Hands Same-Sex Marriage A Pyrrhic Victory?

In a 2-1 decision that comes as little surprise, the Ninth Circuit Court of Appeals held that California’s Proposition 8 was unconstitutional. Prop 8 came about after California judges ruled that California’s constitution mandated the recognition of same-sex marriages. A majority of voters in the State of California passed an amendment that gave same-sex couples all of the legal rights of marriages without the use of the title. This lead opponents of gay marriage to sue in federal court to overturn Prop 8. As expected, the district court and the Ninth Circuit went along.

I’m a supporter of gay marriage, although a tepid one. I don’t buy the argument that allowing gay marriage does a damn thing to harm the institution of marriage in this country beyond the massive damage done to it by heterosexual couples over the decades. If we really wanted to restore marriage in this country, we’d make divorces much harder to get. But that has no chance of happening any time soon.

At the same time, the term “marriage” isn’t a term that can be changed on a whim. It has a specific meaning. And the state has an interest in healthy families, which means families where there are two parents who pass along the values necessary for a functioning democracy. If you undermine the family, you undermine society, and you undermine democracy. The decline of the American family is at the foundation of the decline of America, and it’s a serious issue that needs to be fixed.

Even with that as a given, how does denying the right for gay couples to get married fix marriage? If anything, it creates the societal expectation that gay couples should be in stable monogamous relationships and should raise healthy and well-adjusted children. That, in my book, is a good thing for society. Rather than marginalizing homosexuality, we’d be better off mainstreaming it.

Why The Ninth Circuit Was Wrong

That being said, I think the Ninth Circuit was dead wrong in overturning Proposition 8. Two unelected federal judges have absolutely no business writing the social policy of a state against the express will of the voters. The same would be true if California voters had recognized gay marriage and a federal appeals court told them that they could not. The federal government, no less the federal judiciary, has no business deciding what is a matter dedicated to the states.

Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals

Proposition 8 could have been undone the same way it was enacted: by the voters. That’s the way it should be overturned. The Ninth Circuit got it wrong in saying that the effect of the law was too rash and not a “cautious” approach. By taking the question away from the legislature and the judiciary, Proposition 8 forced the question to become one of popular will: and there’s no reason to suggest that popular will isn’t already changing. It’s not even a matter of rights: gay couples in California had all of the same legal rights as married one, as the Ninth Circuit opinion took pains to point out. But instead of finding that to be in the favor of Proposition 8, the Ninth Circuit found that to be a mark against it.

That is deeply problematic for acceptance in gay marriage in this country. It basically means that once a state recognizes civil unions, it really is a “slippery slope” towards full-on recognition of same-sex marriage. It makes it a binary proposition for most states—either deny all marriage rights to gay couples or redefine marriage entirely. If the issue is forced like that, many states will just deny all marriage rights.

Moreover, this gives a new push for the Federal Marriage Amendment. If states are going to be forced to accept gay marriage against the will of the voters, it’s possible that the voters will take the matter into their own hands.

Why The Supreme Court Will Affirm Anyway

Obviously, this is a question that the Supreme Court will be taking up in this Term. And Judge Reinhardt, who wrote the opinion, did something very smart for someone in his opinion: he wrote the opinion with one particular Justice in mind: Justice Kennedy.

Ultimately, even though I strongly disagree with the Ninth Circuit’s decision, I would bet that it will be affirmed by the Supreme Court in a 5-4 decision. Justices Kagan, Sotomayor, Breyer, and Ginsberg will vote to affirm. Justices Alito, Roberts, Thomas, and Scalia are sure votes against (although it’s possible that either Alito or Roberts could vote to affirm). Justice Kennedy will write the opinion. Even though a petition for certiorari hasn’t even been filed yet, the writing is already on the wall.

The reason is because Justice Kennedy wrote the majority opinion in Romer v. Evans, the case that overturned an amendment to the Colorado Constitution that was ostensibly written to prevent special rights being granted on the basis of sexual orientation. Justice Kennedy’s opinion struck down the amendment, holding that it violated the Equal Protection Clause of the Fourteenth Amendment. Judge Reinhardt’s decision striking down Prop 8 also was based on the Equal Protection Clause of the Fourteenth Amendment.

It would be difficult for the Supreme Court to overturn the Ninth Circuit without scrapping Romer in the process. I don’t see Justice Kennedy undercutting his own decision any time soon. With the four “liberal” justices and Kennedy, Prop 8 is almost certainly to be DOA when it gets to the Supreme Court.

Getting Civil Rights Wrong

In the end, the problem I have with the Ninth Circuit’s decision isn’t really the outcome: I will shed few tears over Prop 8. The problem is the process. Not every odious law is a violation of the U.S. Constitution. We have a federal government based on limited, enumerated powers. None of those include telling other states how they should or should not define marriage.

The Ninth Circuit has basically said that we no longer have a government “by the People, for the People.” We have a government that’s “by the People unless the judiciary disagrees, in which case the judiciary wins.” That’s a dangerous precedent to set.

This isn’t at all like the civil rights movement of the 1950s and 1960s. The advocates of same-sex marriage have plenty of recourse at the ballot box and in the court of popular opinion. They’ve won plenty of battles there. The fact that they’ve lost some of those battles doesn’t justify saying that the federal government must step in and take away the right of the voters to choose their own paths. Proposition 8 may be an odious and vile law, but there are plenty of laws that I consider odious and vile. The remedy for those laws is to get the people to overturn them, not to make the whole country less democratic. This isn’t a case where same-sex couples are denied public accommodations. Proposition 8 granted same-sex couples every right of marriage but the name—but that wasn’t enough for the Ninth Circuit. Which indicates that this really isn’t about legal rights, but moral ones.

This decision was ostensibly based on the law, but at the end of the day it was one in which two judges decided that they think that the choices made by California voters were morally wrong and they wanted a different choice. Those two judges may be right, maybe it is morally wrong to deny the moniker of “marriage” on committed same-sex marriages. But it’s not their call to make. That’s what being a nation of laws rather than men implies—and if you don’t like it, then work to get the law changed.

The fact is that full legal recognition of same-sex marriage was probably inevitable anyway. But if the Supreme Court does what it is likely to do, the result could well be a Federal Marriage Amendment that puts the question back into the hands of the people. That would be a major setback for the cause of same-sex marriage, but when you take power away from the people and invest it in unelected judges, you will create popular blowback. The real solution would have been to use the power of our democracy, to speak out, and to get the voters of California to overturn Prop 8 on their own accord. In the end, the Ninth Circuit’s decision may have been a victory for same-sex marriage, but it may also turn out to be a Pyrrhic victory in the end.

Yes, Virginia, Congresscritters Should Care About The Constitution

Newsweek has a stereotypical hit piece on the recent Republican Pledge to America. Ramesh Ponnuru notes a curious passage from the piece:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.

Now, one shouldn’t expect too much from Newsweek—a magazine that quite literally isn’t worth the paper it’s printed on. But Slate‘s Dahlia Lithwick, who should know something about the Constitution given that she’s a legal correspondent also thinks there’s something weird about Congresscritters actually reading the Constitution.

Of course, that view is completely bonkers.

A Little Constitutional Law 101

Here’s why Congresscritters should care about the constitutionality of the bills they vote on: because they swore an oath to do that. Every member of Congress must take an oath of office. The oath states:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

How can a Congresscritter “support and defend the Constitution” without the ability to interpret what the Constitution means? It’s rather difficult to argue that someone is supporting and defending a document when they are purposefully ignoring it.

This oath is required by Article VI of the Constitution, which requires all federal and state officeholders to support the Constitution. That means that Congresscritters have the power to interpret the Constitution. That means that the President has the power to interpret the Constitution. That means that state governors have the power to interpret the Constitution. In order to support the Constitution, you have to know what you’re supporting.

Not only that, but there’s nothing in the Constitution that gives the judiciary the sole right to interpret the Constitution. In fact, there’s nothing in the text of the Constitution that gives the judiciary the right to interpret the Constitution at all. The ability for the Supreme Court to declare a law unconstitutional (what we lawyers call “judicial review”) isn’t in Article III of the Constitution, or anywhere else. So where does it come from?

If you remember Marbury v. Madison from your high school civics class, good for you. That is considered the first time that the Supreme Court said that it had the power to strike down a federal statute for violating the Constitution. Marbury wasn’t decided until 1803, years after the Constitution was ratified. Now, what you learned in high school civics class isn’t entirely true—the Supreme Court was always intended to have the power of judicial review, and Marbury just made that practice explicit. (Oh, and another thing about Marbury: it may have been wrong. Marbury struck down parts of the Judiciary Act of 1789 as violating the Constitution on a debatable legal theory. But don’t try making that argument in court…)

The Supreme Court even recognizes that it isn’t the final and only arbiter of what’s constitutional and what’s not. The Supreme Court won’t decide certain kinds of cases that may implicate a constitutional issue under what’s called the political question doctrine. The Supreme Court won’t, and can’t, decide a hypothetical question about the Constitution. In order for the Supreme Court to be able to make a decision, there must be a “case or controversy” under Article III of the Constitution. The Supreme Court simply will not hear cases, no matter how important the Constitutional issue, unless there’s something actually at stake for real live parties.

That’s why the idea that the Supreme Court, and only the Supreme Court, has the right to interpret the Constitution is so screwy. The Supreme Court can’t determine whether a pending bill in Congress is constitutional or not. Congress can’t ask the Supreme Court to do that job for them. So what would Lithwick and the editors at Newsweek have Congress do—pass a bill they suspect is unconstitutional and then wait for the Supreme Court to strike it down? That’s just silly, and it would be a violation of the Oath of Office that every Congresscritter takes.

That theory is an example of two things: first, that some people who should know better don’t know much at all about the Constitution, even those who supposedly write about the courts for a livings. Secondly, it exposes the fetishization of the judiciary on the part of some on the left. Yes, the judiciary has an important function in society. I’m a lawyer, so without it, I’d have to do something that actually adds value to society. But the judiciary is part of three co-equal branches of government. The judiciary isn’t a super-legislature. It can’t make executive decisions. Its primary purpose is to provide a check on the other two branches. Many on the left don’t understand why the judiciary was supposed to be the “least dangerous branch” of government. They don’t understand the concept that the role of a judge is a limited one, and is sharply and absolutely proscribed by constitutional limits. They see the courts as instruments of social change, and that’s not the way the courts are intended to function.

The Pledge to America is right: not only does Congress have the power to interpret the Constitution, they have the obligation to do so. If they could not interpret the Constitution, they would be unable to protect or defend it. If Congress stops caring about the constitutionality of the statutes they pass, then our system of government is in a great deal of trouble.

Analyzing The Sotomayor Supreme Court Nomination

President Obama has picked Judge Sonia Sotomayor of the Second Circuit as his nominee to replace David Souter as Associate Justice of the United States Supreme Court. Judge Sotomayor was considered the front-runner for the spot, along with Judge Diane Wood, Homeland Security Secretary Janet Napolitano, and Solicitor General Elena Kagan.

Ilya Somin has a detailed critique of Judge Sotomayor’s record and finds her minimally qualified. As he puts it:

…[H]er record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee’s qualifications are likely better than Harriet Miers’ were; but Miers’ nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor’s.

It would be hard to find a less qualified nominee than Harriet Miers, but Sotomayor does not strike me as a strong candidate. She is, to be sure, qualified for the position, but a seat on the Supreme Court is the pinnacle of the American legal profession. The Supreme Court has housed some of the greatest minds in the practice: Oliver Wendell Holmes, Felix Frankfurter, Hugo Black, Robert Jackson, and even the current Court has incredibly talented judges such as Stephen Breyer (on the “left”) and Antonin Scalia (on the “right”). Does Sotomayor match up with those legal minds? Her record, at least on a cursory glance seems to suggest not.

Judge Sotomayor is not widely considered to be an expert or leading light on a particular field of law, as Stephen Breyer was in administrative law. She has not shown the intellectual caliber of someone like Antonin Scalia or Ruth Bader Ginsberg. Instead, she seems to have been picked because she is a female Hispanic with an interesting life story that meets the basic qualifications.

Now, that is not to say that Judge Sotomayor is an intellectual lightweight—generally one does not get nominated for a Circuit Court of Appeals or even graduate from a top-tier law school without possessing a strong intellect. Moreover, Judge Sotomayor is no less qualified than the Justice she is replacing—which is damnation by faint praise given that David Souter was the least intellectually gifted and least competent member of the Court.

It should not be surprising that Obama picked a left-wing candidate. That part was a given. President Obama was not going to pick out a candidate more conservative than the decidedly liberal Justice Souter. Her personal ideology should not be at issue: Justices Breyer and Ginsberg were both strongly liberal judges, but were well-qualified nominees whose nominations were consented to by the Senate in a bipartisan manner.

However, as Prof. Somin adeptly points out, her judicial philosophy is a legitimate reason for combatting her nomination:

I am also not favorably impressed with her notorious statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.

The role of a judge is to dispassionately and fairly apply the law without preference or bias. It remains an open question whether Judge Sotomayor will follow the law or undermine the rule of law by giving preference to those based on gender, race, class, or her own personal feelings. If it is the case that she will, respect for the rule of law demands that the Senate refuse to consent to her nomination.

Judge Sotomayor was not the worst pick that President Obama could have made (Secretary Napolitano was the least qualified of the four contenders), but Judge Sotomayor was not as qualified as Judge Wood or Elena Kagan. However, politically, Sotomayor may be the more confirmable.

In the end, President Obama could have picked a legal heavyweight—but instead he picked someone based largely on personal rather than judicial qualities. Judge Sotomayor may be qualified to sit on the Court, but it is unlikely that she will be one of its brightest stars. Given that she is replacing the execrable Justice Souter, it is hard to see her being any worse. Still, there are liberal candidates, and liberal female candidates that President Obama could have nominated that would be stronger picks for the Court. It is likely that Judge Sotomayor will be confirmed, and probably on a bipartisan basis, but she is not the kind of distinguished jurist that will make a strong contribution to American jurisprudence. She will, however, be a reliably liberal vote on the Court, which seems to be President Obama’s primary criterion for picking a nominee.

Tyranny Of The Minority

Law professor Paul Campos takes a critical look at the Iowa Supreme Court’s recent decision upholding gay marriage. (The Court’s opinion is available here.) Campos finds that the legal reasoning behind the decision was lacking:

Stripped of its verbiage, the court’s opinion comes down to the following claims: First, it’s a bad thing for the state to treat people differently on the basis of sexual orientation, unless the state has a good enough reason. Second, the reasons the state gave for treating same sex-couples differently from opposite-sex couples in regard to marriage weren’t good enough.

That’s it. These conclusions might raise various questions in the mind of someone who hasn’t enjoyed the benefits of a legal education. Such as, what was the court’s basis for these claims? Is there anything specifically “legal” about these conclusions? And how did the judges figure this stuff out, especially given that it took more than a century before anyone noticed Iowa’s constitution contained this requirement?

The problem with the Iowa decision is that there isn’t a strong legal rationale for this decision. The Iowa Constitution cannot require the recognition of gay marriage because gay marriage was not acceptable at the time that the Iowa Constitution was written. In essence, the judges are reading their own personal feelings into the law. While the Iowa Constitution is more broadly worded than the federal Constitution, there is still no plausible argument that it was designed to allow for same-sex marriages. What the Iowa Supreme Court has done amounts to going back and changing the words of the Iowa Constitution to mean something that it never was intended to.

Even those who want gay marriage should be troubled by this. There are seven members of the Iowa Supreme Court. There are nearly 3 million Iowans. In a democratic state, 7 people should not be presumed to have the power to set sweeping social policy for the other 2,999,997 people.

Yet that is what happened. The Iowan people did not vote to have gay marriages recognized in their state. In fact, a clear majority of Iowans oppose gay marriage. Yet the voice of the people have been overruled by just 7 people. That is troubling, not only from a standpoint of separation of powers, but because it ultimately hurts the cause of gay marriage. The likely outcome of all of this will be another Prop 8, and even if the Iowa Constitution’s amendment process means that the vote won’t take place until 2012, having this decision essentially forced upon the people of Iowa will not make gay marriage more popular.

This is a clear case of judicial activism. Judges should follow the law, and avoid legislating from the bench. The legal case for gay marriage presented in this opinion is woefully thin—rather the judges decided to enforce a set of social norms on Iowans by their will rather than the legislative process. Even those who support gay marriage should be troubled by that. This is an example of the tyranny of the minority, where the few use judicial overreach to enforce their views in a way they otherwise could not. No matter what the outcome, that kind of circumvention of the democratic process is wrong. The very foundation of our government is based on fundamental values like separation of powers and the consent of the governed. The Iowa Supreme Court has made a sweeping change to Iowa’s social policies and laws without the consent of the people. If such a thing were to stand, it would mean that states are governed not by voters, but by the few.

Congress To Illinois: Get Rid Of Blago Or No Cash

Jim Geraghty notes a curious provision in the stimulus bill directed at the State of Illinois:

None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.

It seems to me that this move is unconstitutional. The federal government may condition receipt of federal funds on doing certain things. For example, the Supreme Court upheld the federal government only allowing for highway funding to the states if they raised the drinking age to 21. South Dakota v. Dole, 483 U.S. 203 (1987). However, that case only allowed the government to do so for reasons related to the “general welfare”. Helvering v. Davis, 301 U. S. 619, 640–41 (1937).

The question is whether Illinois getting rid of Gov. Blagojevich is related to the “general welfare.” Say what you will of the corrupt and profane Illinois governor, he has not yet been convicted of any crime. This probably isn’t an illegal bill of attainder since it’s punishing Illinois rather than Blagojevich himself, but it’s still a gross violation of the principle of federalism. The “general welfare” isn’t a way for Congress to advance narrow issues or play political hardball. It would be blatantly unconstitutional for Congress to condition federal funding on a state electing a Republican governor or electing a female governor. So why should it be constitutional for the federal government to withhold funds from Illinois because they refuse to impeach Blagojevich on Congress’ timetable.

Even though the courts generally defer to Congress on what is defined as being in the national interest, this seems to be a rather clear case of Congress overstepping their constitutional limits.

The Second Amendment’s Last Stand

This morning, the Supreme Court will hand down its decision in District of Columbia v. Heller, a case which will likely decide as a matter of law whether the Second Amendment creates an individual right to keep and bear arms.

To follow the Court’s session, SCOTUSblog‘s live coverage will provide instant results and links to the opinions.

My prediction: a clear majority of the Justices will decide for the individual rights interpretation. A closer majority will decide the issue of what standard of review should be used—and there may not even be a majority on that. Either the standard of review will be narrowly decided to be strict scrutiny, or we’ll see a plurality opinion that allows for some reasonable regulation of firearms along the lines of the Solicitor General’s amicus brief.

Gun owners will be happy that the Court has recognized the Second Amendment for what it is—but if the standard of review is too lenient, then it may be less of a victory than some had hoped. My guess is that the Roberts Court is not about sweeping changes, and will temper the individual rights aspect of the decision with than a less than searching standard of review.

UPDATE: Affirmed 5-4. Individual right upheld. More this evening.