Category Archives: law

A Justice…Misunderstands

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Justice Ketanji Br own Jackson dissented strenuously with a Supreme Court ruling that, in part, upheld the Trump Administration’s request for an emergency stay of a lower court’s blocking of NIH from canceling $783 million worth of grants.

The money part of the woman’s (dare I use that term on a person who doesn’t know what a woman is?) dissent:

the high court’s way of preserving the “mirage of judicial review while eliminating its purpose: to remedy harms.”

No. Not at all. The purpose of judicial review is critically—and solely—to ensure that the action before it, along with the statute(s) involved, follow the text of our Constitution and the text of those statutes. Nothing more and nothing less.

But the woman wasn’t done with shredding (to use the in-vogue term) “judicial review” [emphasis added]:

It would have been much simpler for the Court to just announce that, regardless of the plain text of the APA or what Congress intended to authorize, we no longer accept that the Government’s grant-termination decisions are subject to arbitrary-and-capricious review or that vacatur of an arbitrary grant-termination decision is an available remedy.

The greatest harm that is in play here is ruling on the basis of a particular judge’s or Justice’s personal definition of “harm.” Yet, this is exactly what Jackson presumes to attempt with her setting aside the petty text of a statute from which her august self demurs.

The Supreme Court’s ruling, including Jackson’s dissent can be read here.

Circularly Self-Serving

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Or self-servingly circular. You decide.

The IRS, this time at President Donald Trump’s (R) behest, is moving to block the trial of a couple of IRS whistleblowers who are suing the agency over its non-payment of whistleblower rewards they believe are owed them over their exposure of alleged tax irregularities inside Bill and Hillary Clinton’s foundation.

“In this case, the Whistleblower Office denied petitioners’ claims because the petitioners’ claims were never considered in an IRS action. Here, the Whistleblower Office forwarded petitioners’ claims to a classifier,” the IRS motion to dismiss argued last week. “Following the classifiers’ preliminary review, the Classifier declined to forward petitioners’ claims to exam and recommended that it be forwarded to the CI [criminal investigation] division.
“The IRS did not proceed with any potential action when it investigated petitioners’ claims,” the IRS added.

The IRS’ claim is this: we didn’t do anything about the beef, therefore, there is no beef about which to sue us.

This is one more example of an agency’s adjudicative facility being judge, jury, and executioner at the direct expense of justice for the individual(s)—or justice for the people if a proper Article III court were to find for the agency.

There’s Straightforward Fix

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Progressive-Democrats are once again showing their monarchical and my-way-or-no-one-gets-anything attitude toward us average Americans. This time it’s the Texas branch of the Progressive-Democratic Party intending to have its State legislature politicians abscond from Texas in order to deny the State legislature the necessary quorum to conduct business. The proximate business is the legislature’s State redistricting proposal resetting the districts from which our State’s Federal Representatives would be elected.

The short term solution to this, I suggest, would be to hold the redistricting proposal as the first item on the agenda for every Special Session the governor calls and for every regular legislative session until the proposal gets a vote in each of the House and the Senate.

My wife has a longer-term solution: a Texas Constitutional Amendment that would allow the governor to declare every Representative or Senate seat whose Representative or Senator is absent for one week or more (she suggested two weeks) from an active legislative session as part of a group of Representatives or Senators who are absent, thereby denying the House or Senate (or both) a quorum—whether that’s the intent or not—vacant. The governor then must schedule a Special Election to elect a new Representative or Senator to the vacant seat, the election to be held within 30 days of the vacancy declaration.

To this, I add a couple of items. The heretofore incumbent would be ineligible to stand for immediate reelection; although he would be eligible at the next regular election following the Special Election or following the next regular election if the Special Election were to coincide with a regular election.

And this: the governor must appoint a Representative(s) or Senator(s) to fill every such vacancy in the interim between the vacancy declaration and the Special Election or regular election if the Special Election coincides with a regular election. This would allow the legislature to get on with its business without having to wait on that next election.

California’s Disdain for our 2nd Amendment

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The 9th Circuit(!) has ruled that California’s demand for background checks (and associated delays in obtaining) as a precondition for citizens of that State buying ammunition is unconstitutional.

Naturally, California’s Progressive-Democrat Governor, Gavin Newsom, is up in arms over that ruling:

Strong gun laws save lives—and today’s decision is a slap in the face to the progress California has made in recent years to keep its communities safer from gun violence. Californians voted to require background checks on ammunition and their voices should matter.

It’s a well-deserved slap in the face, though; in response to Newsom’s administration’s and State legislature’s own slap in the face of American citizens. What Newsom and his fellow Party syndicate members carefully ignore is that we already have a strong gun law—the strongest—in the form of our 2nd Amendment. Writing for the 9th Circuit, Circuit Judge Sandra Ikuta tacitly reminded Newsom, et al., of this:

By subjecting Californians to background checks for all ammunition purchases, California’s ammunition background check regime infringes on the fundamental right to keep and bear arms[.]

She expanded on that [citations omitted]:

…a person who wants to keep an operable firearm must necessarily acquire ammunition. Because the right to keep and bear arms includes the right to keep operable arms, rules on ammunition acquisition implicate the plain text of the Second Amendment if they meaningfully constrain the right to keep operable arms.
We conclude that California’s ammunition background check meaningfully constrains the right to keep operable arms.

The 9th‘s ruling was on Rhode v Bonta, and it can be read here.

Jurisdiction

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A commenter on an earlier post suggested I define “jurisdiction.” Herewith.

Our Declaration of Independence and our Constitution define and create our social compact as a nation whose people are sovereign and whose government men and women work for us by our consent (in government’s existence) and by election (of those men and women actually serving*).

Johnson’s Dictionary, 4th ed, contemporaneous with the writing and ratification of our Constitution:

JURISDICTION.
1. Legal authority; extent of power.
2. District to which any authority extends.

Modern American dictionaries, viz., Merriam-Webster Online, define jurisdiction:

Jurisdiction
1: the power, right, or authority to interpret and apply the law a matter that falls within the court’s jurisdiction
2a: the authority of a sovereign power to govern or legislate
b: the power or right to exercise authority: control
3: the limits or territory within which authority may be exercised

The definition of jurisdiction as our Founders understood it remains the same as it is understood today. (Aside: that only keeps things convenient. Were the definition materially changed today, our Constitution still would have to be understood and applied in those original terms; an Amendment would be needed, not judicial decree, to bring that definition forward to today.)

Our government’s jurisdiction, thus, does not extend beyond the limits of our nation’s social compact.

Our social compact (any social compact) isn’t only geographically defined, however. It’s also, and primarily, a two-way commitment, a mutual agreement to protect the compact’s members and the members’ agreement to submit to and obey the rules associated with that agreement.

Hence, my claim in that earlier post: illegal aliens, by entering our nation illegally and remaining illegally present, are holding themselves outside the tenets of our social compact. By holding themselves outside our social compact, they are holding themselves beyond the reach of our government’s jurisdiction. Their presence within the territorial limits of our nation only cedes control via raw power to our government.

*Unelected bureaucrats in government, from Congressional and Executive Branch staffers through the men and women in civil service are selected and hired—at bottom—by those elected representatives.