Tag Archives: freedom

Ukraine, Russia, and the US

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Matthew Rojansky, Director of the Kennan Institute of the Wilson Center, had some thoughts on this during a live interview on Fox News, and repeated in Fox’ online feed. These remarks were made in the context of a warning that Russia will use the Russian surrogates’/Ukrainian separatists’ situation as a pretext to invade Ukraine to resolve a cynically made-up “humanitarian crisis.”

We don’t want a war. We cannot win a war against Russia. You know, this is not Al Qaeda. This is not the government of Saddam Hussein. This is the Russian Federation, the inheritors of the Soviet Union’s nuclear arsenal. We cannot get dragged into this war. But by the same token, the Ukrainians can’t win it by themselves.

If we keep going with sanctions, it’s a dead-end process. We can continue to do it for moral reasons to show that we’re doing something, but we’ve also got to have an endgame negotiation that the Russians are part of.

He’s right, and he’s wrong. He’s right that we don’t want war; no sane nation does. He’s right that Ukraine can’t win their current war by themselves.

But he’s terribly wrong where it counts. Of course, we can win a war against Russia. Indeed, he implies that Ukraine can win such a war, if only they’re not alone. No, the only way we could not win would be for us to give it up before it starts—”we can’t win” is just a dangerously defeatist mindset.

It’s that mindset, too, that is contributing so heavily to Ukraine’s current strait. Russian President Vladimir Putin has the measure of President Barack Obama and of Obama’s key cabinet players, and Putin is confident he can act as he pleases and the US will make no meaningful response. Putin is confident that we’ll do something “for moral reasons to show that we’re doing something” but that something will be confined to more wrist-slap sanctions. Putin most carefully has observed the American administration’s penchant for “leading from behind,” which many people more accurately identify as leading the retreat.

Rojansky also is wrong that the endgame negotiation must be something of which the Russians are part. Certainly, it would be nice if the Russians were part, but they really have very little useful to say in the matter until they stand down from Ukraine’s eastern border; until they stop shooting at the Ukrainian army from within Russia; until they stop supplying the…separatists…with arms, artillery, SAMs, ammunition, and so on; until they withdraw from their occupation of Crimea.

No, the right answer is to ratchet up the economic pressure on Russia with real sanctions and openly and effectively helping Ukraine (and Europe) find non-Russian sources of oil, gas, and other goods, and to ratchet up the pressure on Russia by supplying Ukraine with arms and ammunition.

And to openly and publicly recognize that the Russian nuclear threat has only the credence we choose to give it. If we’re not threatened by it, it is no threat. It is no threat because Russia does not want a war with us, either, and especially, Russia will not go nuclear over eastern Ukraine.

Update: Corrected the second paragraph, beginning “If we keep going with sanctions…,” to indicate it was part of Rojansky’s remarks, and not part of my writing.  I apologize for the error.

Freely Traveling and Peaceable Assembly

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The US government offers no adequate method for people to challenge their placement on its no-fly list, a federal judge ruled Tuesday in a case involving 13 Muslims who believe they’re on the list.

US District Court Judge Anna Brown found people lack a meaningful way to challenge their placement on the list, which bars them from flying to or within the United States. She also said the 13 people who sued the government have been unconstitutionally deprived of their right to fly.

The Federal government’s no-fly list is treated as secret, and it’s through this list that the Federal government determines who is barred from flying from or to US airports.

Brown earlier had ruled people had a constitutional right to travel and via this list, the Federal government had violated that right.

How do I get from this to peaceable assembly? These 13 innocents, by their placement—against their will—in company with terrorists who are on the no-fly list is one path. The government’s denial of their right, through denying them a pathway, to protest against that association and be removed from it is another. Preventing these 13 from traveling via a transportation of their choice—and so of associating themselves with travelers of their choice (strangers they may be, but still fellow air travelers)—is a third path.

Obama Is Legally Allowed to Enforce—or Not Enforce—the Law

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Amazingly, a professor at the University of Chicago’s law school wrote this in the New Republic, and he’s serious. Yet he cites not a single clause from the Constitution, not a single phrase, to support his…thesis.

Eric Posner wrote, among other things,

Would President Barack Obama, by refusing to enforce the immigration laws against millions of undocumented immigrants, be engaging in “domestic Caesarism,” as Ross Douthat charges [in a New York Times op-ed]?

…if he chooses not to enforce immigration laws against “up to half the country’s population of illegal immigrants,” as Douthat claims, the president wouldn’t be doing anything different from what his predecessors have done (or rather, not done).

There’s that Progressive morality, again. The rightness or wrongness of a behavior isn’t at all inherent in the behavior. No, the behavior’s morality is determined solely by whether someone else did it first or is doing it also.

And

The president cannot suspend or change the law: when he leaves office, the law will remain the same as it was, and the next president will be free to enforce it or not.

No, no president, nor Obama nor any “next president,” is free to not enforce the law (nor has any past president been, although past ones have been guilty of this, also; Posner is right on this much). Here’s what Article II, Section 3, has to say on the matter:

he shall take Care that the Laws be faithfully executed

Full stop. There’s nothing in there about taking Care if he feels like it or taking Care not to faithfully execute.

And

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious.

with

Nearly all of this non-enforcement takes place with implicit congressional acquiescence….

This merely means Congress may be failing its tasks, too (“may be:” Congress has no obligation to allocate money to be spent in amounts a president might demand. A case can be made, in fact, that Congress allocates too much as it is); it in no way legitimizes Presidential lawlessness. Certainly, a lack of resources does increase the difficulty for a President. However, the difficulty in no way legitimizes choosing not to enforce.

This is, also, a straw man. This President also chooses not to enforce laws for which he has the resources: the Business Mandate and the Individual Mandate of the ACA; border security; delivery of subpoenaed documents to the Congress that subpoenaed them, including Benghazi, Fast and Furious, the IRS; refusing to comply with Congressional oversight; the list runs on.

Then there’s this:

People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers….

This is another straw man. The Constitution gave the President executive power for the purpose, among others, to take Care that the Laws be faithfully executed, not to choose among them to enforce only those convenient to him. In this guise, the President must, indeed, do what Congress decides: he must enforce the laws that they pass—and that become actual law when he signs the bill and thereby enacts it, or when they pass it again, over his veto. To do otherwise is the principle of Executive supremacy, embodied in monarchies like an earlier Britain’s, against which we rebelled some years ago.

And this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.

Of course, a President has no such right. There’s that pesky Art II, Sect 3 clause, after all, which also contains no syllable of authorization for a President to create “law” on which he might then presume to act. Further, in the entirety of that second Article of our Constitution, there’s no such “right,” or power, or authority identified.

Above all that, the President has no authority to decide what “policies…serve the public interest.” That’s the province of We the People, who are the public, and we make those determinations through our elected representatives in the Congress.

Posner’s piece goes on, but you get the idea.

Appellate Court En Banc Hearings

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The DC Circuit a short time ago held in Halbig v Burwell that Federal regulations regarding Federal health plan exchanges violate Obamacare’s plain language: Federal subsidies, contrary to those regulations, are available only to health plan holders who got their plans through State-run health plan exchanges.

Adam White, in a recent Wall Street Journal piece in the context of that ruling and the Federal government’s subsequent appeal to the DC Circuit to rehear the case en banc, noted a couple of things.

One is how rare en banc (re)hearings are, especially for the DC Circuit:

The DC Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

Then he got into why this is so.

…the court’s high standard, found in the Federal Rules of Appellate Procedure: en banc rehearing “is not favored and ordinarily will not be ordered” unless the case satisfies one of two standards. First, an en banc rehearing may be needed to “secure or maintain uniformity of the court’s decisions.” A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the DC Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig was a straightforward application of the Obamacare law as it was written. That the 4th Circuit saw this differently isn’t relevant; the DC Circuit can only rehear its own cases, not those of sister appellate courts. There’s no precedent conflict here. Some might argue that the question has Constitutional significance, and I’d agree with them. However, neither set of litigants raised any sort of Constitutional question, and the case and the ruling turned on the law itself. There’s no Constitutional controversy here, either.

What about the case’s “exceptional importance?” Judge Harry Edwards, who dissented in Halbig, wrote this in a 1987 case [Edwards’ emphasis]:

[N]o judge agrees with all of the decisions handed down in the circuit….” But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making.” Rather, en banc review must be reserved for “the rarest of circumstances… [with] real significance to the legal process.”

In the context ofHalbig, it’ll be instructive to see whether the DC Circuit’s newly appointed judges are appellate judges who happen to be Democrats or whether they are Democrats who happen to be appellate judges.

What about a Palestinian’s right to freedom?

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This is the headline of a FoxNews op-ed by Faheem Younus, President of the Baltimore branch of Ahmadiyya Muslim Community USA and a senior fellow at the University of Baltimore’s Hoffberger Center for Professional Ethics. It’s a fair question.

Younus asks us to

think of the current Israeli-Palestinian conflict in terms of the movie “Shawshank Redemption,” which shows the quest for freedom of an innocent banker serving two life sentences under hopeless circumstances. The cast goes like this: the criminals are Hamas, the warden is Netanyahu, Andy—the banker convicted of murder—is your average Palestinian, and Shawshank is Gaza.

His strawman includes his claim that ordinary Palestinians—Gazans, actually—are prisoners of the Israeli Prime Minister Benjamin Netanyahu. Then Younus expands his claim:

But lately, the Palestinian’s moral right to exist has become a political wrong to list.

Recently, it has become evident that millions of innocent Palestinians will serve life sentences in this Shawshank, that there is no two-state solution, that their yearning for freedom is being swallowed by the biblical dream of a Greater Israel, stretching all the way from the Jordan River to the Mediterranean.

Of course, Israel has made no such claim. Israel favors a two-state solution (which, of necessity, includes the Palestinians’ “moral right to exist”), having learned from the West’s colonial days, followed by general colonial independence and trade, that the path to prosperity, for Israelis and for Palestinians, including Gazans, is through states freely trading with each other.

While purporting to decry Hamas’ behavior, though, what Younus does not discuss is that when Hamas and Fatah merged under the Palestinian Authority and Mahmoud Abbas’ leadership, the PA became a terrorist state. Younus denies this (without substantiation), and the PA’s initial rhetoric also denied it. The ensuing empirical facts, though, prove the terrorist nature of the unity government, this new PA. The PA launched their latest terror war just weeks after the unity government’s formation; it has pursued its terrorism with rocket attacks against Israel’s nuclear facility; it has pursued its terrorism with endless rocket firings into Israel with the sole purpose of killing as many civilians and children it can; it has pursued its terrorism by storing its rockets in hospitals, UN facilities (it’s impossible to believe the UN had no complicity in this), and private homes; it has pursued its terrorism through firing from these same homes and hospitals; it has pursued its terrorism by using Gazan civilians and children as personal shields in engagements with the IDF; the list goes on and on and on.

The ensuing empirical facts also include these two: the Fatah part of the PA has been utterly silent on this terrorism. Fatah’s silence is a deafening roar of approval of the PA’s terrorism. Also, Abbas has openly stated he agrees with the attacks.

Gazans—ordinary Palestinians—are not at all prisoners of Netanyahu or of Israel generally. They’re hostages of the terrorist PA, and badly abused by it.

As to that rejection of a two-state solution and a favoring of Younus’ mythical Greater Israel, this is what Netanyahu has said:

“If we were to pull out of Judea and Samaria, like they tell us to…there’d be a possibility of thousands of tunnels” being dug by terrorists to attack Israel, [Netanyahu] said. There were 1,200 tunnels dug in the 14-kilometer border strip between Egypt and Gaza alone…. “At present we have a problem with the territory called Gaza,” the Prime Minister said. But the West Bank is 20 times the size of Gaza. Israel, he said flatly, was not prepared “to create another 20 Gazas” in the West Bank.

The Palestinians do, indeed, have their own right to freedom. And to the prosperity that goes with freedom. The path to that, though, demands that the PA release these innocents from their bondage. The path to that demands an end of terrorist wars against Israel. The path to that demands a verifiable—and verified—removal of the PA from its avowed goal of the utter destruction of Israel.