Thursday, October 19, 2017

Regaining our Freedom and Liberty (Part I)

I am not a lawyer, but I have independently studied Supreme Court Case Law books written by Georgetown professor Randy Barnett. I am only a novice, but in my opinion the Court has been out of line with many of its decisions.

How can America regain its Freedom and Liberty and restore our Confidence in the Supreme Court? This is difficult task. Supreme Court nominee Neil Gorsuch said “If you like all your decisions, then you are not being a good judge.” This is so true, it is impossible to find solutions to all problems in the Constitution unless a judge decides to legislate from the bench. Here are few steps to put the Supreme Court back on track:

1. Overrule the 1873 Slaughter House cases. This is essential to restore the “privileges and immunities” clause of the Fourteenth Amendment. The Court has improperly used the “due process” and “equal protection” clauses to compensate for the loss of the “privileges and immunities” clause. Clarence Thomas attempted to bring back the “privileges and immunities” clause in his concurring majority decision in McDonald v. Chicago in 2010. The Supreme Court has even used the Commerce Clause to replace the missing “privileges and immunities” clause (see Atlanta Hotel v. United States or Katzenberg v. McClung).

2. Continue to limit the use of the Commerce Clause for economic issues only. The Commerce Clause has been expanded, especially under the FDR New Deal. The Commerce Clause was used to regulate not just interstate trade, but anything economic including intrastate activities (see Wickard v. Filburn). However, recently the Court has made a stand to limit the Commerce Clause to just economic issues (See Bond v. United States, United States v. Lopez, and United States v. Morrison).

3. Stop legitimizing legislation based on “emergencies”. The Court has granted the federal government expansive powers during times of war or crisis (the Depression). Some of the worst Supreme Court Decisions have come because of “emergencies”: Korematsu v. United States (WWII), Schneck v. United States (WWI), the Legal Tender cases (Civil War), and Wickard v. Filburn (the Depression). The Court should remain true to the Constitution as it did during the Korean War when deciding Youngstown Sheet and Tube v. Sawyer (Truman tried to seize steel companies).

4. Be wary of deciding cases based on data, popular consensus, or facts: stick with the law. Many times the Court has decided cases based on popular consensus (Plessy v. Ferguson, United States v. Cruikshank, and Korematsu v. United States), and misguided data and facts (Bradwell v. Illinois, Buck v. Bell, Mueller v. Oregon, O’Gorman v. Hartford Insurance, Roe v. Wade, and even cases like Carolene Products) 5. Stop deciding Dormant Commerce Clause cases. See my blog “Why the Dormant Commerce Clause is Bogus”.

6. Social Justice cannot be a determinate of any kind to decide any case. Consider the 1996 Romer v. Evans where the Court struck down a Colorado Constitutional Amendment that denied “preferential” treatment to homosexuals. In other words, homosexuals cannot obtain a job, for instance, because of a quota system. Instead, the Court found the provision to discriminate against homosexuals. However, the Court’s decision is hypocritical because it discriminates against other groups that are not gay. In his dissent Scalia points out that the majority decision in Romer is “heavy reliance upon principles of righteousness rather than judicial holding.” Roe v. Wade, Obergefell v. Hodges, and Lawrence v. Texas are good examples of social justice decisions by the Court.

Sunday, October 15, 2017

Can Roe v. Wade be Overturned?

Can Roe v. Wade be overturned? Of course. But to do so there must be some “erosion” to the principles in which Roe was decided to make it possible. Actually, Casey v. Planned Parenthood decided in 1992 may be the actual precedent that needs to be overturned. Casey upheld Roe, but revised the initial trimester conditions held in Roe. Below are the Supreme Court precedent that can be considered to overturn Roe.

First, the Court banned Partial Birth Abortion (Gonzales v. Carhart – 2007). This did not end abortion, but it pointed out the horrors and dangers of such procedures to the mother and how it “kills” a “viable” baby by “crushing” its skull and to vacuum out “brain matter” so the baby’s head can easily pass through the cervix. This does not paint a very good picture of abortion, nor does it paint a very picture of those who support these types of procedures. Partial birth abortion methods did nothing but bring more “substantial and continuing criticism” to the business of abortion. Carhart is significant because the Court is on record against some form of abortion – that is a start in creating useful precedent.

Second, the precedent that may be the most revealing is Washington v. Glucksberg in 1997 (also to a lesser degree Reno v. Flores in 1993). In this case, the Court refused to elevate “the right to die” encompassed by “assisted suicide” to a fundamental right because suicide was “not deep rooted in American history or tradition”. Nor is “the right to die” an “implicit in the concept of ordered liberty” (Palko, 1937) and “neither liberty nor justice would exist if they were sacrificed” (Glucksberg). This decision, without question, eroded the foundation of Roe and Casey because abortion is certainly not deep rooted in American history or tradition. This standard was never applied to either Roe or Casey when they were decided.

Third, the liberal progressive judges in their righteousness of obtaining social justice may have given the conservative sect of the Court ammunition to fight Roe and Casey. In Lawrence v. Texas decided in 2003, the Court overturned the 1986 Court decision Bowers v. Hardwick. Both cases dealt with statutes against homosexual sex (sodomy). In Bowers, the Court said that homosexual sodomy was not a fundamental right and upheld the Georgia law. In his dissent to Lawrence, Justice Scalia astutely summarizes the majority opinion criteria to overturn a case. A case can be overturned if it meets the following “emerging awareness” criteria: “1.Its foundations have been ‘eroded’ by subsequent decisions; 2. it has been subject to ‘substantial and continuing’ criticism; and 3. it has not induced ‘individual or societal reliance’ that counsels against overturning.” Scalia points out these same “emerging awareness” principles can be used to overturn Roe. 1. Glucksberg and even Carhart has “eroded” Roe’s foundation; 2. No question that abortion faces “substantial and continuing criticism” (for instance, outrage over partial birth abortion); and 3. Roe’s fundamental “right to abortion” has not been precedent cited in any decision other than abortion cases (other aspects of the decision may have been cited, but not the fundamental right to abortion that the core aspect of decision is built upon). Bowers was cited in cases dealing with sexual morality cases such as public indecency. By overturning Bowers sexual moral behavior can now be used to legalize (prostitution, incest, obscenity, polygamy, etc.). Overturning Bowers is a “massive disruption of the current social order” but overturning Roe “would simply have restored the regime that existed for centuries before 1973.”

Can Roe and Casey be overturned? Yes, and the liberal Court would get what it deserves. The liberal sect of the Court is applying social justice and not the law. Liberal rulings enable the Court to apply any imaginary principle or invent any fundamental right it wants to get the decision they want. In Lawrence the court does not elevate homosexual sex as a fundamental right, but says homosexual sex is “an exercise of their liberty”. That is very broad and ambiguous. Liberty can be restricted and is restricted all the time. Private sexual liberty is also restricted. For instance, polygamy, incest, or prostitution. This is why the Lawrence decision makes no sense, it makes it sound as if liberty cannot be restricted by the government for any reason. This is not the law, but a fabricated fascination the Left calls the law. Wouldn’t it be ironic if the Court could use the Left’s fabricated fantasy they call the law in Lawrence v. Texas against them to overturn Roe and Casey? Lawrence v. Texas could have been invalidated based on the “equal protection” clause or even the “due process” clause without elevating a fundamental right. But this is not sufficient to Leftist judges who have an agenda and answer to constituents and not the Constitution.

Tuesday, October 10, 2017

The Founding Father for African-Americans: Frederick Douglass

There is no such thing as a Founding Father for African-Americans, but if there was one it would be Frederick Douglass. Although Douglass was not alive during the founding period, he was the key leader during the initial civil rights period to end slavery. Douglass was born a slave in Maryland in 1818. After several failed attempts, Douglass escaped to the North and settled in Massachusetts. In 1839, Douglass became a licensed preacher and became active in abolitionist groups. Douglass was a gifted writer and orator and he symbolized the antithesis of Southern and even Northern views of a Black person. Most could not believe such a gifted person could have once been a slave. In other words, Douglass debunked any bigoted ideas that Blacks did not have the intelligence to be functional members of American society.

Douglass was remarkable for many reasons. He had many of the traits of more modern Civil Rights leaders such as Martin Luther King. Douglass, like King, was not only smart and protested for equal rights for all (not just blacks, but for women), but showed little animosity towards the system that oppressed him. Douglass, like King, was very active in the political process supporting Ulysses S. Grant for President and was even the Vice Presidential candidate on a small Party ticket in 1872.

After the Supreme Court held that Blacks had no Constitutional rights in the landmark 1857 case Dred Scott v. Sanford, Douglass was at his best. In one of his most famous speeches Douglass declared that “my hopes were never brighter than now.” He continued “The Supreme Court of the United States is not the only power in this world.” Douglass contended “I ask, then, any man to read the Constitution and tell me where if he can, in what particular instrument affords the slightest sanction to slavery?” He added “Where will he find a guarantee for slavery? Will he find it in the declaration that no person shall be deprived of life, liberty, or property without due process of the law? Will he find it in the declaration that the Constitution was established to secure the blessings of liberty? Will he find it in the right of the people to secure in their persons and papers, and houses, and effects? Will he find the clause prohibiting the enactment by any State of a bill of attainder?” Douglass realized that all these “strike at the root of slavery, and any one of them, but faithfully carried out, would put an end to slavery in every State in the American Union.” Douglass understood the Dred Scott decision showed that the “Constitution does not mean what it says, and says what it does not mean.” Douglass had full faith in the Constitution: “I am here to vindicate the law, not the administration of the law. It is the written Constitution, not the unwritten Constitution, that is now before us.” He further notes about the Constitution: “It makes, as I have said before, no discrimination in favor of or against, any class of people, but is fitted to protect and preserve the rights of all, without reference to color, size, or any physical peculiarities.” He summarizes by saying “let me say, all I ask of the American people is, that they live up to the Constitution, adopt its principles, imbibe its spirit: enforce its provisions.” Douglass would make a similar argument in an 1860 speech in Glasgow Scotland. Douglass was right, the “Constitution is for the ages” and would prevail over time. Of course, the Thirteenth, Fourteenth, and Fifteenth Amendments were needed to accomplish his vision, but the Constitution prevailed just as a confident Douglass predicted.

Douglass would not support present day diversity, affirmative action, or welfare programs. Douglass was about having equal rights for all Americans. His 1865 speech “What the Black Man Wants” is once again amazing. Douglass says in part “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.” He would continue “And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! Your interference is doing him positive injury.” Douglass was not only ahead of his time, he is more advanced in his thoughts than modern liberal or progressive policies seeking social justice. Has social justice helped African-Americans? Some, but over the course of time, social justice is doing more to harm the African-American race than to help them.

Douglass could have been bitter about his situation. However, Douglass was less bitter about what happened to him than most present day minorities who repeatedly inject race as an excuse for their failures. Douglass had faith in the Constitution, but unfortunately Justices are destroying his vision and faith: For instance, see Grutter v. Bollinger (2003) and University of California v. Bakke for diversity decisions or Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges for social justice decision.

Saturday, October 7, 2017

The Best Non-Supreme Court Decision: Corfield v. Coryell

In 1823, Circuit Judge Bushrod Washington wrote the opinion for Corfield v. Coryell. The Court upheld a New Jersey law which prohibited non-residents from gathering oysters and clams from State waters. Washington refused the argument of applying Article IV, section 2 of the Constitution: “citizens of the several states are allowed to participate in the all the rights which belong exclusively to the citizens of any other particular state.” Washington explained that Article IV section 2 of the Constitution “did not guarantee equal access to all public benefits a State may choose to make available to its citizens.” Instead, Washington explained that the section in question of the Constitution only “applied to those rights which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Below is how Washington defined our rights, privileges, and immunities in the Coryell decision:

“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”

“The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”

This opinion is important because it was key in developing the language for the Fourteenth Amendment over 40 years later. The Coryell decision coupled with the 1866 Civil Rights Act defines our rights, privileges, and immunities not mentioned in the Bill of Rights. The 1866 Civil Rights Act says “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

Unfortunately, the Slaughter House cases in 1873 wrote the privilege and immunities clause out of the Fourteenth Amendment. In 1875, in United States v. Cruikshank the Court held that the Civil Rights law of 1866 to be unconstitutional because Congress could only control state discrimination, not individual discrimination. Cruikshank further held that the Bill of Rights did not apply to the states. Cruikshank was upheld in the 1883 Civil Rights cases. These cases also limited the scope of the Thirteenth Amendment to apply only to abolishing state sanctioned slavery rather than using it to deny discriminatory infractions as well. These decisions were precedent for the horrible 1896 decision Plessy v. Ferguson which established the “separate but equal” doctrine (Jim Crow laws). Why are these cases important? Because they are still valid precedent that has never been overturned (Plessy was overturned by Brown v. School Board).

The consequences of the Civil Rights cases, Cruikshank, and the Slaughter House cases has led the Court to apply the Constitution in ways it was never intended. The Commerce Clause has been used to uphold the 1964 Civil Rights Act. The Fourteenth Amendment’s “due process” and “equal protection” clauses have been expanded to cover things that should fall under the “privileges and immunities” clause. For example, the “privileges and immunities” clause was to be used to apply the Bill of Rights to the states, however later Supreme Courts would use the “due process” clause and the “equal protection” clause to accomplish this task. The due process clause was used to elevate new fundamental rights such as gay marriage and abortion. This makes no sense. Due Process merely applies to whether or not someone had a fair treatment throughout the judicial process. Due process does not apply to our fundamental privileges and immunities outlined by Washington in Coryell and by the 1866 Civil Rights Act.

In the 2010 case McDonald v. Chicago in his majority concurrence, Justice Thomas gives a very revealing argument to overrule Cruikshank and the Slaughter House Cases and finally use the privileges and immunities clause for its intended purpose. In this case, the Court held that the second amendment applied to the states via the due process clause. Thomas concurred, but properly wanted to apply the privilege and immunities clause instead of the due process clause.

Washington’s decision in Corfield v. Coryell is important even though the privileges and immunities he outlines are never applied properly, but instead our rights outlined in that case are still applied via the due process and equal protection clauses. Note: rights and privileges and immunities mean the same thing and are used interchangeably on purpose to illustrate that fact.

Tuesday, October 3, 2017

Brown v. School Board: Correctly Decided, but Wrong Rationale

In 1954, the Supreme Court unanimously decided that the “separate but equal” doctrine was unconstitutional. In 1896, in Plessy v. Ferguson the Court created the separate but equal doctrine. That decision was law for over 50 years and opened the door to discriminatory Jim Crow laws. In Brown v. School Board the Court correctly overturned this practice by deciding “separate but equal” did not apply to education. However, the Court used equal protection clause of the Fourteenth Amendment. This was problematic for several reasons.

First, in Bolling v. Sharpe, the Court faced a dilemma. Bolling was decided at the same time as Brown. The cases were identical (did separate but equal apply to schools) with one exception: the Bolling case was over federal jurisdiction (District of Columbia) while Brown applied to States. Unfortunately, an “equal protection” clause does not apply to the federal government in the Constitution. The Court bridged this dilemma by declaring “separate but equal” was unconstitutional using the “due process” clause of the Fifth Amendment. The result of Bolling is apparent, as Justice Stevens points out in Adarand Construction v. Pena the “Fifth Amendment encompasses a general guarantee of equal protection as broad as contained within the Fourteenth Amendment.”

Secondly, the Court says that the “circumstances surrounding the adoption of the Fourteenth Amendment” is “at best inconclusive”. This is not true, and does a huge disservice to the Amendment. This means that the Court decided Brown without knowing the true meaning behind the Fourteenth Amendment and therefore, gave their own interpretation of the Amendment. As Michael McConnell said “Brown is now a mighty weapon against the proposition that the Constitution should be interpreted as it was understood by the people who ratified it.” This is how the Fourteenth Amendment became a tool for “social justice” or “social rights” instead of an equal protection of the fundamental rights of all citizens. McConnell proves without a reasonable doubt that the framers of Fourteenth Amendment intended it to end segregation. The Civil Rights Act of 1875 was passed to enforce the Fourteenth Amendment and it denies segregation at inns, theatres, restaurants, and public accommodations. Public schools falls in this same category of public accommodations. In fact, a better argument can be made that “separate but equal” does not apply to schools more so than inns or theatres because schools are maintained by taxes by all Americans. In other words, an “originalism” interpretation to decide Brown is easy to make but the Court fails to draw the same conclusions.

Thirdly, the Court further suggests a “modern” interpretation of the Fourteenth Amendment. Chief Justice Warren says “Whatever may have been the extent of the psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.” This wrongly asserts that the interpretation of the constitution can change over time.

Fourthly, the Court relies on testimony and “data” showing that segregation has a “detrimental effect” on colored children because it makes them feel “inferior”. Using this information in deciding the case makes it about “social justice” and not the law which supports the decision.

The biggest injustice to the Fourteenth Amendment happened in the Slaughter House Cases in 1873 when the “privileges and immunities” clause was basically written out of the Amendment. The proper way to decide Brown would have been to use the “privileges and immunities” clause. All people have the same rights or “privileges and immunities”. This means we all have the same fundamental right to be free from government restraint. All Americans can therefore choose what school to attend, what restaurant to eat at, and what movie to see without government intrusion. Although there is no “privileges and immunities” clause applied to the federal government, the federal government cannot abridge fundamental rights of individuals to be free from government restraint. This is the entire purpose of the Constitution.

Scholars argue if Brown was decided by “originalism” methods then “social justice” or “social rights” cases such as Loving v. Virginia would not have been decided correctly. In Loving, the Court applied the equal protection clause to void a Virginia law making interracial marriage illegal. This is also not true. The privileges and immunities clause could be used or even the due process clause. To be a valid law using the due process clause there has to be a rational reason for the law and it cannot be arbitrary. The Virginia statute fails on both accounts – it has no rational basis and it is obviously discriminatory.

Once again the Warren Court decides the case correctly, but they use the wrong rationale. This is extremely harmful precedent because it allowed the Court to decide future “social rights” cases incorrectly because “social rights” are not encompassed in the Constitution. Social rights are not fundamental rights. This does not mean that laws restricting social rights will be found constitutional as explained above in Loving. However, “social justice” cases such as abortion and same sex marriage have no justification under the Constitutional.

Saturday, September 30, 2017

Why the Dormant Commerce Clause is Bogus

Why is the Supreme Court deciding state laws that may burden commerce? The Dormant or Negative Commerce Clause covers cases regarding state laws where Congress has failed to Act. The obvious answer to this question is that the Supreme Court does not want States to pass laws that are discriminatory or provide some type of protectionism. If the Court is successful in removing protectionism among the States then the Court may help eliminate barriers in Commerce that would provide a national market that is equal for all States. However, nothing works like it is intended. There are many reasons why the Dormant Commerce Clause has no place in our judicial system.

First, the Court is not suited to make decisions over economic policy. In modern times, Congress is much better equipped to make decisions over state laws (more infrastructure including the massive regulatory agencies contained within the executive branch).

Secondly, even though the Court has decided many Dormant Commerce Clause cases, this does not mean that their judgment is the final word on the subject. Congress has the final word on the Commerce Clause and they can therefore pass a law that overrules what the Supreme Court decided. For instance, in the United States v. South-Eastern Writers Association (1944) case, the Court overruled Paul v. Virginia (1869) and held that insurance could be regulated by the commerce clause. A year later, in 1945, Congress responded by passing the McCarran-Ferguson Act which overruled the Supreme Court decision. In Marbury v. Madison (1803), Chief Justice Marshall said it was the duty of the Court to say what the law is. However, the Court does not necessarily know what the law should be in cases involving the dormant commerce clause. Hence, the Court is overstepping its bounds and legislating from the bench.

Third, it removes federalism from our system of government and provides more power to the federal government. States should be allowed to experiment with legislation and Congress should adopt those state laws which may work on a national level. In Cooley v. Board of Wardens in 1851 Justice Curtis says “It should be left to the legislation of the states; that is local and not national”.

Fourth, the Court consistently sides with federal laws expanding the powers of the commerce clause. The Court can apply any law that they deem ‘may’ have a ‘substantial impact’ on commerce. The laws do not even have to be necessary and proper – laws may just be convenient. The Court has consistently granted constitutionality to federal laws that may protect the safety of American citizens under the ‘general welfare’ clause. For instance, federal laws such as food and drug safety laws have been enforced using the commerce clause. But the Court acts in the complete opposite manner over state laws interpreted by the dormant commerce clause. For instance, in Philadelphia v. New Jersey the Court held a New Jersey law that prohibited solid waste from outside states to be deposited in New Jersey landfills was unconstitutional because it discriminated against other states. In other words, New Jersey was no longer allowed to protect its citizens from an unnecessary exposure to toxins because the law discriminated. Why isn’t garbage a local problem? Why is solid waste even considered commerce? In Kassel v. Consolidated Freightways the Court found an Iowa law to limit the length of trucks on its highways to 55 feet unconstitutional even if it meant having safer roads. The Court made its ruling despite many other states having similar laws. The Court has consistently held that state safety concerns are not reason enough to even slightly burden commerce. However, federal laws can restrict commerce for safety reasons. This judicial review process is contradictory at best.

In United Haulers Association v. Oneida-Herkmer Solid Waste Justices Scalia and Thomas had interesting concurring arguments. Scalia says that there is only one way to interpret the commerce clause – it is “an authorization for Congress to regulated commerce”, the Court has no business regulating commerce. Justice Thomas says the Negative Commerce Clause has “proved unworkable in practice”. Thomas continues to say “To the extent that Congress does not exercise its authority to make that choice, the Constitution does not limit States’ power to regulate commerce. In the face of congressional silence, the States are free to set the balance between protectionism and the free market. Instead of accepting this constitutional reality, the Court’s negative Commerce Clause jurisprudence gives nine Justices of this Court the power to decide the appropriate balance.” Thomas explains that reasons that may exist today to find legislation constitutional are “reasons that later majorities of this Court may find to be entirely illegitimate.” Thomas uses the example of the 1905 Lochner decision. Just three years after Lochner was decided the Court upheld Muller v. Oregon which was in stark contrast to the Lochner holding that the “right of contract” prevailed over wage laws.

Fifth, the Court applies too many odd rules to Dormant Commerce Clause Cases such as the “market participant” rule. In other words, a State government can make discriminatory laws if the government is an active participant in the market instead of being seen as purely a regulator of the market (Hughes v. Alexandria Scrap, Reeves v. Stake, and White v. Massachusetts). Rules like these seem odd especially considering they do not apply to the Federal government.

Tuesday, September 26, 2017

Is the Border Wall Constitutional?

California attorney general, Xavier Bercerra, has filed suit against the Trump administration for his plans to build a border wall along the California and Mexican border. The suit claims several violations including environmental concerns, a violation of separation of powers between both the federal government and states (Tenth Amendment violation) that will hurt the State’s tourism as well as between Congress and the Executive. If this goes to the Supreme Court this will be a very tough sell for California for a variety reasons that I will try to outline.

First, it is probable that the Court may decide that it lacks jurisdiction over the case because it is a political question to be decided by Congress and the President. The crux of border wall argument may come down to the Court’s interpretation of Article 4, Section 4 (Protection Clause) of the Constitution which reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” It is important to note that Article 4 is not a Congressional enumerated power outlined in Article 1, Section 8. This is important because Article 4 is not solely a Legislative duty, but a joint duty between Congress and the Executive. I would argue further if Congress fails to act against a potential threat (not just when they are adjourned on recess), the President has the right do so. Thus, the Separation of Powers complaint that immigration and protecting the country against terrorism or the dangers of drug cartels is a Congressional function and Trump is violating the Separation of Powers is nonsense. The Republican Form of Government clause of Article 4, Section 4 has been ruled a political questions issue in Luther v. Borden (1849). In this case the Court held establishing a Republican form of government among the states was a political question to be decided between Congress and the President and the Court had no Jurisdiction. Hence, many would also argue the Protection Clause of Article 4, Section 4 is also a political question. However, it may not be that simple. In Baker v. Carr (1962), the Court ruled that State Houses and Senates had to be apportioned based on population to have a Republican form of government, but the Court uses the equal protection clause as a basis for their decision. The equal protection clause does not apply to the border wall case (since the wall is to cover all states which border with Mexico). But Baker v. Carr is troublesome for Trump because the Court did rule on a political questions case (the Court’s actions are not always seen as consistent). Secondly, the case may not be ripe for the Court to have Jurisdiction. It is impossible to understand the implications the Wall will have on either tourism or the environment before it is built, so the case may not be ripe until an injury or damages have been suffered.

Even if we evaluate a Congressional enumerated power interpretation of the Constitution, California still has no case. Article 1, Section 8 of the Constitution outlines enumerated Congressional powers. Congress actually has no authority over immigration, but only over naturalization. Therefore, California may be correct to say that the Federal Government has overstepped its authority and violated state’s rights by acting on immigration. But the Federal Government has been acting on immigration for years and the Court has upheld this behavior. In Arizona v. United States (2012), the Court held that many provisions of the Arizona immigration law were preempted by federal law. Our history is filled with federal laws over immigration including controversial ones which targeted certain countries to limit their immigration numbers (China and South and Eastern Europe). In other words, federal law on immigration is the supreme law of the land and states cannot violate these laws even when they are controversial (remember, sanctuary cities and states also violate federal immigration laws). In many regards, it makes sense for immigration to be controlled by the federal government since having 50 different state immigration laws would cause a national mess. For instance, it makes little sense for each state to enforce different quotas for immigration. The federal government is well within its powers to build a border wall to control “naturalization” of citizens (those children born to illegal aliens), prevent drug trafficking, prevent terrorism, and even prevent illegal immigration which is costly to citizens and can affect the employment of citizens. The federal government may do what is necessary and proper to carry out the tasks outlined above even if the means chosen to achieve the ends may be harmful to the states. In McCulloch v. Maryland, the Court said a National Bank was Constitutional even if the means to collect taxes was not the most appropriate to accomplish the ends. In fact, many people have held that the National Bank, at times in American history, was harmful to the American Economy. The Federal Government may also treat immigration as commerce. People have been held by the Court to be part of interstate commerce to uphold the Civil Rights Act of 1964 (Atlanta Hotel v. United States and McClung v. Katzenbach). And the Court has ruled that the Federal Government has the authority to prohibit commerce such as lottery tickets in Champion v. Ames (1903) and any product that violated child labor laws in United States v. Darby (1941) which upheld the Fair Labor Standards Act of 1937. Hence, I find nothing illegal about the United States trying to prevent or prohibit immigration based on Commerce Clause precedent. The United States has had immigration laws for centuries and a border wall for decades to control immigration for national security reasons. Both Congress and the President are within their rights to do almost anything Necessary and Proper for national security reasons. The question is: Does the President violate the Separation of Powers by issuing an executive order or by having funding for the wall incorporated in an omnibus bill to bypass Congress? These actions do not violate Separation of Powers any more than Obama’s DACA executive order over immigration or Obama’s pet projects incorporated in the stimulus bills (green spending or the Race to the Top). If the Trump executive order to temporarily curb immigration from certain countries is seen as legal, then a border wall to curb illegal immigration is also legal. At the same time, spending, budgets, and appropriation bills are political questions to be decided between Congress and the Executive branches and the Court has no jurisdiction over these debates and decisions.

The lawsuit filed by California and Bercerra is nothing more than an axe to grind against Trump and an effort to protect their sanctuary immigration laws. Trump should counter sue California to end their practice of sanctuary cities.

It is ironic how most of the Court decisions, outlined in this blog, to defend the Trump wall where bad opinions either on their merits or methodology. But liberals often forget that Constitutional expansions can work both ways and bad decisions will eventually work against them over some issues. This is why interpreting the Constitution using originalism is best for both conservatives and liberals.