Category Archives: Courts

A Supreme Court Error

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No, I’m not talking about the Court’s cowardice on gun rights. This one concerns the Court’s nearly unanimous decision regarding any Congress’ ability to undo what a prior Congress has done and the Executive Branch’s obligation to spend money that hasn’t been appropriated.

The Court upheld health coverage providers’ demand, under Maine Community Health Options v US for

payments to health insurers for so-called risk corridors in ObamaCare’s first three years[.]

Never mind that the 112th Congress, in 2010, undid what the prior 111th Congress had done and both refused to appropriate funds for those “risk corridors” and explicitly forbade the Executive Branch from making any risk corridor payments from other funds.

Never mind that money must actually be appropriated before it can be spent. Article I, Section 9 of our Constitution makes that clear.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law….

At least it used to be clear.

Now none of that matters. In addition to the “implied rights” that the Supremes are wont to manufacture, now it has manufactured out of whole cloth an implied obligation.  The health coverage providers are owed the money because a prior, overridden, Congress wanted the money paid out.

And We the People are the ones who’ll be left paying for this egregious error of the Court. Pay up, suckas.

An Appellate Court Error

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The 6th Circuit has this one.  Gary B v Whitmer concerns children in a really poorly performing Detroit public schools: miserable classroom conditions and abysmal test scores.

The appellate court decided, though, that this matter had nothing to do with the quality of the schools, over which the court has no jurisdiction, and everything to due process as delineated in our Constitution’s 14th Amendment, within which the court does have some jurisdiction.

Acting within that capacity, the court manufactured out of whole cloth, a brand, spanking new right: a state-funded education. Whereby this appellate court has also asserted the Federal government’s right and authority to dictate to a State on matters which the court acknowledges to belong to the State and not to the Federal government.

The Wall Street Journal noticed one of the foolishnesses of this ruling [emphasis added]:

The decision…notes there is a history of public education in the US and “a substantial relationship between access to education and access to economic and political power.” Surely the same could be said of home ownership. Does the Constitution command subsidized housing? “Property,” unlike education, is at least mentioned in the Constitution.

Indeed. And [emphasis added here, too]:

When judges invent new rights they can also damage the democratic process. The Supreme Court has warned against the Due Process Clause being “subtly transformed into the policy preferences of the Members of this Court.” Yet that’s what will happen if federal judges are put in charge of state and local education policy. The majority says poor education undermines democracy, and that’s right—but judicial imperialism threatens it even more.

That brings to mind, also, CJ Taft’s remarks in an earlier case:

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

So it is, too, with extra-Constitutional judicial rulings.

The 6th Circuit’s ruling can be read here.

What a Concept

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A legal, permanent resident immigrant with a prior criminal record, has been ordered deported, and the Supreme Court has upheld the deportation order.  Because it’s the law.

Writing for the Court, Justice Brett Kavanaugh had this [emphasis added]:

Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the consequences for family members. Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens—even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Congress.

The law does matter. At least to some of us.

Unsurprisingly, the four liberal Justices, voted against the Court’s ruling. Which is entirely consistent with their view that laws don’t matter when they’re in the way of the Justices’ personal views of social needs.

The case is Barton v Barr, and it can be read here.

Where Were the FISA Court Judges?

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DoJ’s Inspector General is finding yet more, yet more rampant, miscreancies in and done by what used to be our nation’s—the world’s, even—premier law enforcement agency.

DOJ’s new assessment indicated that FISA problems were systemic at the bureau and extended beyond the Page probe. In four of the 29 cases the DOJ inspector general reviewed, the FBI did not have any so-called “Woods files” at all, referring to documentation demonstrating that it had independently corroborated key facts in its surveillance warrant applications. In three of those applications, the FBI couldn’t confirm that Woods documentation ever existed.
The other 25 applications contained an average of 20 assertions not properly supported with Woods materials; one application contained 65 unsupported claims. The review encompassed the work of eight field offices over the past five years in several cases.

The IG went on.

“As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods procedures in compliance with FBI policy,” the DOJ IG wrote in a memo today [31 Mar] to FBI Director Christopher Wray.

That’s damning enough, but the problem is much wider than just a failed FBI.  The judges sitting on this Star Chamber FISA court knew those materials needed to be present, yet they approved the warrants in all of those flawed, to the point of dishonesty, warrant applications. Every single one of them.

This is another demonstration that this secret court cannot be fixed; it must be eliminated.

Full stop.

The Threat to our Court System

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…was made plain last week with Senate Minority Leader Chuck Schumer’s (D, NY) naked threat against two of our Supreme Court Justices if they don’t start ruling the way Progressive-Democrats dictate.

Schumer’s threat follows threats by Senator Sheldon Whitehouse (D, RI) and his cronies in the Senate to stack the Supreme Court if that body didn’t start ruling the way Progressive-Democrats dictate.

These follow long-standing “liberal” judges’ and Justices’ utter disregard for our Constitution. Such disregard includes district judges presuming to issue nation-wide injunctions—arrogantly reaching into the jurisdictions of other judges’ districts, other appellate court districts.

It includes Justices like Thurgood Marshall whose mantra was an even more arrogant attitude of ruling wholly independently of the law and then demanding the law catch up

It includes the attitude of current liberal Justices like Ruth Bader Ginsburg, who considers our Constitution to be a document that lives through and is alterable by rulings from her judicial bench. She contemptuously ignores the fact that our Constitution actually lives through its Article V and is alterable solely by our Constitution’s owners, We the People.

Keep the power balance of the Senate—which must confirm or reject all judges and Justices—and the party residing in the White House—which originates all judicial nominations—in mind this fall.