Tag Archives: government

Courts and State-Controlled Federal Elections

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In Moore v Harper, the Supreme Court is being called on to decide whether State courts can rearrange State elections laws—in particular, write their own Congressional district maps—as these pertain to how a State runs Federal-level elections.

It shouldn’t even be a question. Our Constitution is quite clear on the matter of who is responsible for setting the rules for Federal elections. Here’s Article I, Section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

And only the Federal Congress can adjust those Times, Places and Manner. Not State courts, not even Federal courts.

Our Constitution and every State constitution also is clear on the place and role of the court system in our Federal and State governments. The Judiciary branches are coequal with the Legislature and Executive Branches—neither subordinate nor superior to either. Especially, the Judiciary branches are separate from the other two branches; they are not additional legislative facilities.

State courts, including State Supreme Courts, the facility at proximate case in Moore, have no role in setting or adjusting State Legislature-written Federal-level election rules for their States.

One argument that is being pushed on the Supreme Court for allowing State courts to overrule State Legislatures is “the Founders couldn’t possibly have meant no court oversight of State election laws.” This is obviously inaccurate. In the first place, what the Founders meant in our Constitution is what they actually wrote down and passed out of Convention to submit to the people to ratify.

In the second place, what We the People meant when we ratified that Constitution is that written-down, passed out of Convention, Constitution, with a single modification by us. The Federalist and Anti-Federalist debate, which involved a number of folks in We the People, resulted in a commitment to pass Amendments comprising what came to be called the Bill of Rights—the first 10 Amendments—and We the People ratified those Amendments promptly out of the First Congress. None of those Amendments address in any way how an individual State conducts its Federal-level elections.

No court oversight State election laws is precisely what the Founders intended, and it’s exactly the intention of We the People.

Full stop.

Works for Me

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Senator Chris Murphy (D, CT) has his gun control panties all knotted up because lots of county sheriffs have said they won’t enforce intrinsically unconstitutional gun control laws.

I think we have to have a conversation about whether we can continue to fund law enforcement in states where they are refusing to implement these gun laws[.]

I’ve addressed whether local and county jurisdictions should accept State funding for this or that purpose or whether they, instead, should decline the funds and free themselves from higher government’s controlling strings.

At the national level, Murphy’s terms are acceptable.

In Which a Judge Gets It (Mostly) Right

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Judge Reed O’Connor of the US District Court for the Northern District of Texas ruled at the end of the summer that the Obamacare requirement that health coverage providers must provide coverage for particular aspects of health care—and do so at no cost to the individual being covered—was unconstitutional. He’s currently considering whether to make his ruling permanent and if so, whether to make his ruling applicable only to the litigants in the particular case or to make it nationwide. (As an aside, I have trouble seeing how a ruling of unconstitutionality can have any range less than national.)

Michael Cannon, Cato Institute’s Director of Health Policy Studies, testified as an expert witness in the case that

People have a right to choose whether and what kind of health insurance they need and want. The government shouldn’t be requiring people to buy coverage of any service, whether preventive or otherwise.

O’Connor’s ruling to that extent would be partially correct. However, Government also shouldn’t be dictating to private companies what they must or must not produce. That’s textbook fascism.

There’s also no authority in our Constitution for government to determine what private companies can and cannot produce.

Political Payback

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The Wall Street Journal‘s Editors note that House Minority Leader Kevin McCarthy (R, CA) plans to remove three of the more sketchy and extremist members of the Progressive-Democratic Party from House committees if he becomes Speaker. The Editors then fret that

This sort of mutually assured political destruction is both a symptom and cause of the decline of Congress. But these are the polarizing precedents that Mrs Pelosi has set, and in politics payback is inevitable.

The Editors are correct regarding symptoms and causes here; however, they fail to proceed to the follow-on alternatives. The Republican Party getting even here will give both parties an opportunity to step back. Whether both of the parties take advantage of the chance is a separate question.

If there isn’t payback, though, the destruction is guaranteed to continue, and by a single party alone—which would be much worse.

Merrick Garland’s Special Prosecutor, in His Own Words

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Merrick Garland appointed Jack Smith as Special Prosecutor of former President Donald Trump (R). Leave aside the fact that while Smith was a lawyer in the Department of Justice a dozen years ago, he worked closely with the IRS’ then-Director Exempt Organizations, Lois Lerner, to target Conservative organizations applying for tax exempt status for slow-walking their applications or outright denial.  Never mind, either, that Smith brought a number of charges against a sitting Republican Governor and obtained convictions, thereby destroying his political career. Or that these convictions were overturned by the Supreme Court over Smith’s naked distortion, to the point of blatant unconstitutionality, of the laws under which Smith achieved his destruction.

Here is Special Counsel Jack Smith in his own words:

I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice[.]

Smith will both investigate and then prosecute. He can’t possibly—and this highly talented lawyer knows full well he can’t possibly—conduct his investigation and his prosecutions independently of each other. Sadly, though, he’s right that this is in the finest tradition of the politicized Eric Holder-, Loretta Lynch-, and Merrick Garland-run Department of Justice.

This is one more illustration of the naked political assault by President Joe Biden (D) and his Attorney General on a 2024 Presidential campaign competitor from a competing political party.