Right Answer, Wrong Reason

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In 2023, Texas enacted its Senate Bill 4, which

makes illegal entry into Texas a state crime. It gives Texas law enforcement the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry, among other provisions.

Governor Greg Abbott (R) justified the law on the basis of the Biden administration’s open borders policy which required Texas to act on its national Constitution Art I, Sect 10 obligation to resist the functional invasion that resulted. Progressive groups promptly sued.

Last Friday, the 5th Circuit upheld that law. That was the correct answer, but the court did it for the wrong reason, so the critical underlying question remains unaddressed.

On Friday, the court issued a 12-page ruling solely on procedural grounds, arguing the plaintiffs didn’t have standing to sue. It didn’t address the merits of the claims.

This ruling, avoiding as it does the constitutionally important question that was raised by the suit, is badly flawed. That question is this: does a State have the right (much less the obligation) to enforce its own border with another country when it believes the Federal government is not enforcing that same border, and material harm to the State and to its citizens result?

Chief Justice John Mashalll writing for the Court in 1803’s Marbury v Madison, made all judges’ obligations crystalline:

It is emphatically the province and duty of the judicial department to say what the law is.

To say what the law is, to speak up, not to avoid that duty by deflecting on procedural grounds.

That’s not to say judges should never consider questions of standing or other procedure; that way lies tons of fee-seekers bringing cases without regard to necessary procedure. As the 5th Circuit wrote,

Federal courts have a solemn responsibility to apply neutral principles, such as standing, to the cases that come before them and must resist the temptation to confer Article III standing any time an advocacy group or political subdivision challenges a law it passionately dislikes.

But the province and duty of judges does require them to say what the law is and to act on that saying. Doing so need not automatically confer Article III standing for every case concerning a passionately disliked issue. The Supreme Court has begun applying the Major Questions Doctrine to cases involving the limits of Executive Branch power vs the Legislative Branch’s. The Court needs to apply a similar Major Controversies Doctrine to its decisions regarding whether a case’s core question is more or less important than the specifics of procedure in that case.

The 5th Circuit’s ruling can be read here.

It’s Either a Blockade or It Isn’t

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The US has seized or escorted back to Iranian waters three (so far) Iranian cargo and tanker ships on the high seas after having announced a blockade of all Iran-related shipping, both inbound to Iran and outbound from Iran. Much is being made of those high seas interdictions.

What those making mountains out of these minor swells (yes, I mixed a metaphor. The mix is its own metaphor) choose to ignore is that it’s not a blockade if the first layer, here at the boundary between the Strait of Hormuz and the Gulf of Oman, can be breached and then the shipping is immune to further interference.

If the nation’s assets can escape, the nation isn’t being blockaded. Any blockade worth its…salt…must include the ships being blockaded, wherever they’re found, not just the nation itself that’s being blockaded.

Dangerous Mistake

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The Trump administration is completing its move to change the classification of marijuana from a Schedule I drug…alongside LSD and heroin…to Schedule III, making it obtainable with a prescription.

This is a mistake on two fronts. The first is that marijuana is a highly dangerous drug, having been bred explicitly to strengthen its effects. Those effects include brain damage on developing brains, and human brains are always developing; although the pace of development slows markedly in a human’s middle twenties. The damage done, too, isn’t like a smoker’s damage to his lungs, which can be mostly repaired if the smoker stops smoking. Despite the plasticity of our brains, damage done chemically by the materials in marijuana is permanent.

That leaves aside the slowed reflexes and impaired judgment of a marijuana user while he’s using. Driving or operating machinery while under the influence of marijuana is just as dangerous to the user and to others as is driving or operating machinery while drinking alcohol.

The other front is that this is the wrong place to make money. The profits from universally legal cultivation and sale of marijuana qua marijuana is just chump change compared with the profits available from commercializing marijuana for medicinal use. There is a plethora of anecdotal evidence that marijuana helps with pain management, PTSD, depression, and the like. That warrants serious research to determine the specific chemicals and chemical combinations in marijuana that have these and potentially other medicinal benefits.

With that successful research, and I submit that with concerted effort by a variety of pharmaceutical companies, success is within five years, the cultivation of marijuana for medicinal purposes and the extraction of those chemicals and chemical combinations can be done under license (which we already know how to do in the narcotic medicine venue). Those actual medicines then can be sold under prescription or over the counter, depending on the specific combination. (I’m eliding here the fact that herbal medicine—which is what marijuana would be, even by prescription—suffers badly from inconsistent dose control.)

Mistake

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President Donald Trump (R) is pushing Congress to include in its next budget enactment a 50% increase in the US quota contribution to the IMF, a dollar increase of some $55 billion.

The mistake is in this:

the cost to US control over IMF resources, which Treasury conceals with its claim in the budget that the “equiproportional” quota increase “would be fully offset by a reduction in” the use of debt, “all of which will keep the IMF’s overall lending capacity constant.” What Treasury doesn’t disclose is the hit to US power when the IMF gets more of its resources from equity than debt.

That hit comes from voting on IMF lending which depends on the fund’s use of debt via New Arrangements to Borrow which it does in order to raise lendable monies. This is loosely akin to a bank’s need for extending savings accounts to customers in order to raise funds to lend to other customers.  It takes approval by 85% of IMF voting shares for the IMF to borrow, and the US has had, heretofore, 16% of the voting shares, giving us veto power over IMF’s borrowing.

So long as the IMF has to borrow to lend, the US can exercise a large measure of control over IMF lending. But the US quota increase would shift the IMF’s ability to lend to those quota funds, and with that shift, the US would lose its current voting veto power, IMF could lend without serios oversight.

One upshot of all this, if it is passed, is an increase in the People’s Republic of China’s ability to borrow from the IMF and thereby to prop up its own internal excessive borrowing. And helping out an enemy nation like that is a very serious mistake.

What are they Going to Do about It?

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The Wall Street Journal opened its house editorial with this:

The gerrymander race to the bottom escalated on Tuesday as Democrats in Virginia won a narrow victory to redraw their state map to add as many as four Democratic House seats. This is bad news for GOP control of the House in November, but Republicans can also blame President Trump for starting this rolling rock that has now come down on their heads.

Say that’s true—and it likely is. It’s also true, though, that Texas was pressured by the courts to redraw its Congressional district maps because, those courts had decided, the then-just-drawn map was overly racially gerrymandered. However, the State’s Republican-led legislature didn’t need to redraw its map the way it did, if the goal was only to correct a court-claimed racial mistake.

At bottom, though, the question is, So what? This is where the Republicans are, regardless of how they got here.

What are they going to do about it? Wasting time, energy, and resources pointing fingers is time, energy, and resources they should be putting into unifying their party and dealing constructively with the situation—national as well as local—as it is. That begins with individual candidates getting out among their constituents, Left, Right, and Center, and talking directly to them about the candidates’ concrete policies and how those are better than the Progressive-Democrats’ and how each Republican candidate’s policies will directly benefit each set of constituents.