Tag Archives: freedom

Persons and the Census

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The Supreme Court this week is taking up a case that centers on that. At issue is the question of whether President Donald Trump’s Executive Order excluding undocumented immigrants from state population counts—from the census—is a Constitutional one.

Progressive-Democrats and their Leftist supporters insist that “persons” in this context include illegal aliens.

“…inhabitants” at the nation’s origin meant people with a “usual” or “customary” residence in a state, which would include undocumented immigrants.

This is fallacious, as the WSJ‘s editors allude. Illegal aliens have no customary presence in any State—or territory. The illegality of their presence makes that condition not customary and entirely unusual, no matter for how long they’ve been able to evade the law.

Indeed, illegal aliens are, by their very illegality, every bit as transient in their States as any tourist. There is a critical difference, however: the tourist is here legally, and he’ll leave voluntarily at the end of his stay. The illegal alien is here…illegally…and he will be removed on detection, voluntarily or otherwise.

Progressive-Democrats and their Leftist supporters also insist that the Court must rule their way because otherwise Progressive-Democrat-run States stand to lose representation in the House of Representatives. This, too, is fallacious. Any relative loss or gain of representation is an outcome of the census and associated redistricting, not of any court action, which action can only be to uphold existing (here, census or immigration) law.

Their argument also is a cynical one. States plainly shouldn’t have the representation they have now to the extent their representation is based on the number of illegal aliens present. Nor is it the case that only Progressive-Democrat-run States could lose representation. Republican States can find themselves in the same strait—see, for instance, Texas, which is carefully ignored in their argument.

The only persons who should be counted in this, or any, census are those who are here permanently: American citizens and legal immigrants.

Illegal aliens, though, are not census persons, for all that they are human beings.

The Dangers of a Biden Judiciary

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It’s well enough known that Progressive-Democratic Party Presidential candidate Joe Biden disdains the conservative nature—which is to say that of adhering to the actual text of our Constitution and any statute in a case—of the judiciary as populated by President Donald Trump (courtesy of Biden’s BFF, ex-President Barack Obama (D), who left so many judicial seats empty).

Now, it’s become especially crystalline. Here’s Cynthia Hogan, who was then-Vice President Biden’s counsel and earlier, then-Senate Judiciary Committee member Biden’s counsel:

Joe Biden thinks the law should be interested in protecting the little person. Not to determine an outcome, but to say people should not be at a disadvantage because they’re working class, they’re poor, they’re Black, they’re women, they’re immigrants.

Laudable as those goals are, they’re fundamentally political and not judicial goals. Demanding potential judges and Justices to push for those ends from the bench can only accomplish two things. One is to force those judges to violate their oaths of office to support and defend our Constitution rather than to alter it from the bench. Related to that is forcing those judges to agree similarly to alter the text of any statute before them, and thereby arrogate to their bench legislative authority that is the sole province of our Congress.

The protection of the little person, the person who is working class, poor, black, a woman, an immigrant is best done through strict adherence to our Constitution, which is changeable, legitimately, solely by We the People, us citizens. That protection is best implemented by us citizens through our choices for representation in our Congress and our White House—a representation that has the responsibility for legislating the means by which those goals will be implemented and that protects all Americans. Its also a representation that is directly answerable to us.

Those two tightly related things aggregate to the second, even more dangerous, thing: it makes our judiciary a political branch rather than the legal, judicial one that it is designed to be. That would reduce our nation from a nation of laws to a nation ruled by a few robed individuals who would make law according to their views. Law would no longer be a political matter determined by We the People through our elected political representatives.

Those few men, unelected and so unanswerable directly to us, will not protect all Americans, not even the little person. Instead, law—our very Constitution—will be whatever those few say it is. Beyond that, what those few will say will change over time and vary widely from man to man as each acts according to his own imperatives.

In very short order, those few will be protecting those imperatives, not Americans, not even the little American.

Mark Gitenstein, a former Judiciary Committee chief counsel under Biden:

We want to have as many vacancies as possible and get as many modern progressives in those slots as we can.

Indeed.

And Ted Kaufman, a Biden confidante:

We want to make sure that the courts, and not just the Supreme Court, really are a mirror of America[.]

Here is the danger emphasized, as these worthies don’t care that the courts are designed to be mirrors of our Constitution and of our statutes. It’s the elected political branches of our government who are the true and sole mirror of America.

Too Much Deference

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On Wednesday last, the Supreme Court enjoined Governor Andrew Cuomo’s (D) New York State administration from enforcing its gathering rule that had the effect of targeting, particularly, religious institutions and gatherings.

Much has been made of the ruling, Justice Neil Gorsuch’s concurring opinion, and Chief Justice John Roberts’ dissenting opinion.

Here’s the pertinent part of the ruling’s opening paragraph:

Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Thus, the Court granted, it turns out, only temporary injunctive relief pending rulings in the case itself as that case wends its way through the appellate process.

The temporary nature of the ruling, in turn, drove (I suspect) Gorsuch’s separate concurrence. Here’s the opening sentence of his opinion:

Government is not free to disregard the First Amendment in times of crisis.

He bookended that opening with this conclusion:

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.

That’s a clear foot stomp to the lower courts, and especially to the Second Circuit in the present case, about the sanctity and the supremacy of our Constitution.

On the other hand, here’s the key part of Roberts’ dissent:

[I]t is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.

Justice Sonya Sotomayor went further:

Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

No, the deadly game is subordinating our courts to other parts of our government so easily and routinely. It’s a far more significant matter—a matter of national political health—to defer to public health officials on the basis of their public health official-ness at the expense of foundational (or any other) individual liberties that are the core and basis of our nation’s existence.

It’s a far more significant matter—a matter of national health writ large—for a coequal branch of our Federal government to blithely subordinate itself to another branch of our Federal government, and it’s even worse for that coequal branch meekly to subordinate itself to an inferior division of that other branch.

It is time—past time—to make plain that Article III courts, from the Supreme Court on down, can no longer consider themselves subordinate formations in our tripartite form of federal governance.

The Court’s ruling can be read here.

Just Like….

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Be snitches, sez the Governor.

Oregon Governor Kate Brown during an interview on Friday supported the idea that citizens should alert authorities when neighbors fail to comply with coronavirus restrictions.
“Look, this is no different than what happens if there’s a party down the street and it’s keeping everyone awake,” the Democrat Brown said. “What do neighbors do? They call law enforcement because it’s too noisy. This is just like that. It’s like a violation of a noise ordinance.”

It’s not at all like neighbors calling the authorities over a too-loud party. That’s neighbors acting on their own initiative.

The other is a head of (State) government actively pushing neighbors to rat out their fellows.

Even the Progressive-Democrat governor Kate Brown knows that. She’s acting just like heads of the governments of other types of nations.

A Thought on Brann’s Decision

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Recall that Federal District Judge Matthew Brann dismissed the Trump campaign lawsuit that sought to reject hundreds of thousands of votes in Progressive-Democratic-run Pennsylvania counties because, the suit alleged, changes to State voting rules violated our Constitution’s equal protection requirement.

Brann ruled in part that he

has no authority to take away the right to vote of even a single person, let alone millions of citizens.

What Brann chose not to consider is that he also has no authority to see the vote of even a single person, let alone millions of citizens (more accurately, hundreds of thousands; “millions” is his cynical exaggeration), be diluted to the point of meaninglessness by illegally cast or illegally counted ballots.

The Third Circuit has agreed to hear, promptly, the campaign’s appeal. Hopefully, the appellate court will consider both sides of the matter rather than just the convenient side.