Tag Archives: law

Chatrie v United States and Follow-on

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The Supreme Court ruled in Chatrie that police gatherings of Google location histories constituted a search and so must be subject to 4th Amendment strictures. From that, we get parents pushing back against K-12 school districts conducting surveillance of students’ parents, explicitly to gather [a]ccess license plate data and develop pattern of life information.

One of those tracking packages, Thomson Reuters CLEAR, explicitly brags about the software’s ability to collect and provide to school managers residency verification, address validation, license plate verification, all with a view to [u]nderstand who owns and lives at the address provided and other related locations and to develop pattern of life information. The purveyors of this PRC-esque surveillance package also brag that school managers can [e]asily connect information about people, businesses, assets, affiliations, and other vital content.

All of that without the parents’ prior knowledge or permission and without any court sanction of the surveillance.

That such invasions of average Americans’ privacy is being done by school system managers is one more reason they need their reins jerked up short.

Eroding Foundational Checks and Balances

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Greg Ip is worried that the checks and balances built into our Federal government by our Constitution are rapidly eroding due to President Donald Trump’s (R) unilateral actions. He’s badly mistaken. The erosion began long ago, and it accelerated starting in 2008. Trump has been resisting the erosion, for all the discomfort he’s causing a Leftist press too used to and too comfortable with that washing away.

FDR then tried to pack the Supreme Court; his own party revolted.

Ip ignored the rest of that story and its impact. Roosevelt didn’t get the additional Justices he wanted, but by 1943, he’d succeeded in getting appointed to the Court 8 Justices of his choice ou of the 9 comprising the Court. Our nation has been paying the price of that ever since, from Wickard which increased Federal economic power at the direct expense of the States, through Kelo, which increased Federal power at the direct expense of individual citizens and our property rights, and Chevron deference, which increased the power of Executive Branch agencies at the direct expense of both Congress and the President.

Shortly after taking office, he [Trump] fired the Democratic members of several independent agencies, including the FTC, effectively transforming them into executive departments.

On the contrary, this was Trump executing his constitutional authority as the head of the Executive Branch, and exercising his control over all of the Agencies and Departments of the Executive Branch. The Supreme Court, only recently restored to a body that adheres to what our Constitution actually says rather than what a Liberal, Roosevelt-esque-dominated Court want it to say, acknowledged that constitutional authority. The erosion here is from Congress, with its creation of an “independent” Federal Trade Commission in 1914 and subsequent further “independent” Agency creations. These creations were Congress’ unconstitutional attempt to create a fourth Branch of government by masquerading these creations as part of the Executive Branch.

The Supreme Court also took a step toward restoring Constitutional order in our Federal government by—finally—eliminating the knee-jerk deference to those so-called independent Agencies, and others properly constituted as subordinate to the President, when it rescinded that misbegotten Chevron deference and emphasized the importance of and constitutional requirement that Congress do its own legislative work, work it cannot pass off to those Agencies.

Regarding Trump’s unilaterality in particular, in one sense, he’s only following the examples set by ex-President Barack Obama (D), who infamously bragged about—and used—his pen and telephone to ignore or override Congress, and ex-President Joe Biden (D) who ignored so many of our nation’s laws in his attempt to virtually erase our southern border.

That unilaterality also is being reined in by a constitution-supporting and -applying Court. Trump can fire those Agency personnel. His unilateral application of taxing, via tariffs, has been severely curtailed. His efforts to cancel already-committed Federal grants have been successfully blocked.

Other of his unilateral actions, though, actually are moves back toward Constitutional order. His moves to greatly reduce Department of Education employment and to closely circumscribe DoEd authorities are aimed at getting rid of the Department altogether. This would be entirely appropriate, since the Department is a relatively recent Congressional creation done at the direct expense of the States, taking as it does, control over the education of our nation’s children away from the States, and in many ways away from the parents, and centralizing that control within the Federal government.

The erosion of our government’s checks and balances has been vast, but it’s not only due to a President overstepping his authorities or deliberately ignoring his duties. It’s also been due to Congress shirking its legislative duties and to a Court ignoring its own duties. At present, though, it appears as though the erosion is being slowed, and an increasing move back toward order is in progress.

Amending our Constitution

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The Wall Street Journal asked a collection of elitists how our Constitution could be improved; those wonders proposed five Amendments. I’ll address a few here.

Term Limits: One elitist proposed hard term limits of fixed numbers of years for everyone—Congressmen and judges and Justices. After all, it’s good enough for Presidents. Term limits would be useful for the political parts of our Federal government, but not for the judiciary. Even the 18 year terms he proposed would leave the judges and Justices too vulnerable to the politics of the day, through more rapid appointments and forced retirements, and not sufficiently tied to what our Constitution actually says. The statutes that also come before the courts, and that those courts must apply according to what they actually say, provide enough political involvement as it is; there’s no need to accelerate that, no matter that this Elitist wants to reduce that.

On the other hand, We the People would benefit from term limits for our Congressmen, but hard numbers like six and two terms for Representatives and Senators would excessively limit our choices of whom we would select represent us. Apply, instead, the term limits our prior Articles of Confederation applied to their unicameral Congress with its one-year sessions. Article V of that document limited delegates to Congress to three terms in any six years. That’s straightforwardly modifiable to provide for our bicameral Congress, and it would not limit our choices for representation, only the frequency of those choices.

Leave the judiciary with its current lifetime appointment on their good behavior.

Electoral College: Get rid of it? The “logic” here is that Presidential campaigns are driven too much by the States with the largest Electoral College contingents, and the smaller States get overlooked altogether. Leave Presidential election outcomes to the popular vote, instead. And: modern communications technology cures all. Eliminating the College, though, wouldn’t protect the smaller States. College contingents are based solely on the combined numbers of Senators and Representatives each State has, and the numbers of Representatives is determined solely by population. The same States that supposedly dominate the Electoral College election would simply turn their focus to the larger cities of States, leaving out the smaller urban areas even in those large College-centric States. Nothing material would change.

Leave the Electoral College alone. The current system is not broken.

Rethink the First Amendment: The Evil Rich have too much influence in political speech, and they need to be limited. What about modern communications technology cures all, though? Doesn’t that give the little guy as much influence as the rich guy? Of course it does. The beef here centers on the amount of money any individual or business can contribute to any politician, but here this Elitist fails utterly: he doesn’t suggest any concrete solution, much less an Amendment. Nor can he: on what basis would he limit a rich man’s speech to bring him down to a poor man’s level of influence (no one has ever suggested plussing up a poor man’s speech). Hard dollar limits would restrict the rich man far more than the poor man. Percentage limits (percent of what wealth measure, exactly?) would still leave the rich man with far more supposed influence. And what to do about contributions to causes rather than particular candidates? In the end, what’s the limiting principle here, that prevents further limits on speech no matter how Very Good the reasons might seem for limiting further? This elitist offered none.

We can brook no such restrictions on our free speech rights and remain America. This elitist tacitly recognized this (even if he didn’t recognize it himself) with his concluding thought:

We must return to a reading of the Constitution that recognizes its fundamental democratic commitments.

But that’s a matter for the courts and for Congress to do. No Amendment is necessary, nor could one work. No Amendment will ever alter any reading of our Constitution. Men and women will still read into it (and out of it) what they will, guided by how they’re educated to read it.

Equal Gender Rights: This elitist based the entirety of her argument on the need to ratify—finally!—the Equal Rights Amendment. She wants to enumerate a specific right to political equality for gender in our Constitution, claiming that the 19th Amendment, which granted sufferage to women, doesn’t go far enough. She even cited early feminists’ support for ratifying the 14th Amendment as a pathway for gender equality, but she missed what that Amendment says in its first Article:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All citizens means all citizens; it does not exclude some citizens, women or blacks or citizens of whatever sort. It’s hard to go farther than the blanket statement of equal rights and equal treatment under law that that Amendment requires.

The strength of our Constitution lies, in part, in its blanket statements of rights and limitations. Once we start carving out exceptions or codicils to those encompassing statements of rights and government limits, the process will rapidly escalate and those exceptions and codicils will expand our Constitution to hundreds of pages and hundreds of thousands of words that will include increasingly internally contradictory requirements. In relatively short order, our Constitution would come to resemble the very aspect that Munroe Smith wrote, some 140 years ago, about judicial precedent:

When the old rule is sufficiently worm-holed…a very slight reexamination will reduce it to dust, and a re-interpretation…will produce the rule that is desired.

When the old constitution is sufficiently worm-holed….

Be better if Wonders like these would leave off their Elitist blinders and look at our nation and our Constitution with objective eyes. Be even better if we ordinary Americans simply ignored technocrats and Know Betters altogether, and consigned them to their Ivory towers.

There Are Three Branches

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Under our constitutional Federal government there are exactly three branches—judiciary, legislative, and executive—neither more nor fewer. The legislative—our Congress—can, and does, create departments (other than the Constitutionally mandated State and Defense (however titled)) and agencies within the Executive Branch. Our Constitution names the President as the Chief Executive of the Executive Branch with sole responsibility for enforcing the laws that Congress enacts.

Whether Congress claims this or that agency to be “independent” or not, all of those agencies, by being within the Executive Branch, are—must be—under the control of the President, which control includes the hiring and firing of all of an agency’s employees, and the firing aspect of that includes politically appointed employees who must be confirmed by the Senate after a Presidential nomination in order to fully take office.

That firing authority was finally acknowledged by the Supreme Court in its just released ruling in Trump v Slaughter, which explicitly overruled the 91 years prior wrongly decided Humphrey’s Executor v US.

William Galston demurred from that ruling in his Tuesday Wall Street Journal op-ed.

While the chief justice is right that the FTC’s executive functions have expanded since 1935, it hasn’t ceased to exercise legislative and judicial functions as well. The FTC isn’t simply part of the executive branch; it was designed to be independent. It’s hard to see why Congress can’t mandate special firing procedures for such hybrid entities.

The FTC isn’t simply part of the executive branch; it was designed to be independent. That’s Galston’s error. There are only those three branches of our government; “independent” agencies cannot exist outside of those three, and being within one or another of them, they cannot be independent. Nor can they carry out, from within one of them, any of the functions of either of the others—that would eliminate the separation of powers that is at the core of our government’s structure.

Galston made this argument, citing James Madison in Federalist No 47:

Separation of powers doesn’t mean the branches of government have no role in any other branch. It means that when “the same hands” control more than one branch of government, the fundamental principles of a free Constitution are subverted.

Madison was right, but Galston’s usage is a non sequitur. “The same hands” do not control more than one branch of government except when one branch dictates to the others how they must go about their constitutionally mandated duties, as Congress attempts to do when it sets about hamstringing the President’s control over the entities in his branch.

In particular, Congress

  • cannot create a legislative agency, place it with the Executive Branch, and then tell the President he must do what that agency requires
  • cannot create a judicial agency, place it within the Judiciary Branch, and then omit the judges from that oversight, leaving that task to the Executive) Branch—to the President
  • cannot reach into either of those other branches and dictate to its chief how he must carry out any oversight
  • must place an agency with judicial functions inside the judiciary branch and leave the entirety of oversight to the Chief Justice
  • must place an agency with executive functions inside the Executive Branch and leave the entirety of oversight to the President
  • must keep an agency with legislative functions inside the Legislative Branch. Only then can Congress specify how oversight must be carried out. Of course, a Legislative Branch agency would have no enforcement capability; that is the sole province of the Executive.

Congress exercises all the control over the Executive Branch it needs and is allowed to have via its constitutionally created ability to control the funds available to the Executive and any of his Departments and agencies, and through the oversight hearings it uses to inform itself of Executive Branch doings.

Not Contentment or Fulfillment…

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…but security in their property ownership, along with their life and liberty, from which contentment and fulfillment may well result. A letter-writer in Monday’s Letters section of The Wall Street Journal has made that confusion. He wrote, in response to William Galston’s What “Created Equal” Means in America,

One of the inalienable rights with which all Americans are endowed equally by their creator is “the pursuit of happiness.” The operative word is “pursuit.” No person has a right to happiness, but all have the right to seek contentment and fulfillment by striving to live decent and dignified lives.

That’s not the happiness the inalienable right to pursue which that’s acknowledged in our Declaration of Independence, though. John Adams had made that clear beforehand in his Preamble to the Massachusetts constitution:

All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

The natural, essential, and unalienable rights of life and liberty and of acquiring, possessing, and protecting property creates the capacity for contentment and fulfillment. The latter does not exist without the formers’ prior existence.