11/18/19

Hong Kong is Facing Recession due to Protests

By: Denise Simon | Founders Code

5 months of protests and fighting for real freedom has Hong Kong facing a recession. Asian Airlines has cut flights due in part to cancellations by passengers for several airline carriers of up to 13%.

(UPI) — A government report last week projected a recession for the Hong Kong economy in 2019, which would be its first in a decade.

The forecast said the Hong Kong economy will have contracted by 1.3 percent by the end of the year, in no small part due to ongoing political protests that began to reject a proposed extradition law but have grown to include numerous issues.

Meanwhile, at the Polytechnic University where students and protestors were trapped, police fired rubber bullets and tear gas to keep the protestors from fleeing.

Police say 4,491 people, aged from 11 to 83, have been arrested since protests began in June.

Demonstrators are angry at what they see as Chinese meddling in Hong Kong’s promised freedoms when the then British colony returned to Chinese rule in 1997. They say they are responding to excessive use of force by police.

China says it is committed to the “one country, two systems” formula granting Hong Kong autonomy. The city’s police deny accusations of brutality and say they show restraint. More here.

The European Union and the United States have condemned the escalating violence in Hong Kong amid fears of a bloody crackdown as authorities laid siege to a university campus occupied by pro-democracy demonstrators.

Hundreds of anti-government protesters armed with petrol bombs and other homemade weapons had retreated to the Polytechnic University after a weekend of mayhem, which saw roads blocked, a bridge set alight and a police officer shot with a bow and arrow.

Protesters who tried to make a run for freedom were met with volleys of tear gas and rubber bullets.

‘Unacceptable’

A spokeswoman for foreign affairs at the European Commission expressed “deep concern” on Monday over reports that Hong Kong first responders and medical staff were being detained by law enforcement forces, preventing them from providing assistance to injured people.

“Any violence is of course unacceptable and any action by the law enforcement authorities must remain strictly proportionate and fundamental freedoms, including in particular the right of peaceful assembly and expression, must be upheld,” Maja Kocijancic told reporters.

Britain also described itself as “seriously concerned” over the violence on Monday with a spokesperson for Prime Minister Boris Johnson saying London continues to urge “restraint on all sides and support the right to peaceful protest.”

The Foreign Office added that “it is vital that those who are injured are able to receive appropriate medical treatment, and that safe passage is made available for all those who wish to leave the area.”

The United States had earlier condemned the “unjustified use of force” in Hong Kong and called on Beijing to protect Hong Kong’s freedom, a senior official in President Donald Trump’s administration said.

‘We need help’

According to Hong Kong’s Hospital Authority, 38 people were wounded during the night of Sunday to Monday.

Dan, a 19-year-old protester on the Polytechnic University campus, said protesters may need international help.”

“We’ve been trapped here for too long. We need all Hong Kongers to know we need help,” he added, bursting into tears. “I don’t know how much longer we can go on like this.”

Police, who have faced an array of weapons including petrol bombs, bow and arrows and catapults, urged protesters to leave.

“Police appeal to everyone inside the Polytechnic University to drop their weapons and dangerous items, remove their gas masks and leave via the top level of Cheong Wan Road South Bridge in an orderly manner,” they said in a statement.

One country, two systems

Recent days have seen a dramatic escalation of the unrest that has plunged the Asian financial hub into chaos for almost six months.

Demonstrators angry at what they see as Chinese meddling in Hong Kong’s promised freedoms when it returned to Chinese rule in 1997. They say they are responding to excessive use of force by police.

China says it is committed to the “one country, two systems” formula granting Hong Kong autonomy, with the city’s police accusations they use undue violence.

Chinese soldiers in a base close to the university were seen on Sunday monitoring developments at the university with binoculars, some dressed in riot gear.

Separately, Hong Kong’s High Court ruled on Monday that a British colonial-era emergency law revived by the government to ban protesters wearing face masks was unconstitutional.

It said the law was “incompatible with the Basic Law”, the mini-constitution under which Hong Kong returned to Chinese rule in 1997.

11/18/19

Coup Plotters Risk War with Russia

By: Cliff Kincaid

In what was called a “strong message” to President Trump, the House of Representatives earlier this year passed the “NATO Support Act” by a vote of 357 to 22.  That’s the template for what follows impeachment – voting Ukraine into NATO, provoking Russia, and sending American soldiers off to fight and die in another corrupt foreign country.

The people testifying against Trump are part of the same group of bureaucratic losers who have mishandled our foreign policy for decades.

Consider the opening statement on impeachment before the House Permanent Select Committee on Intelligence by George P. Kent, the Deputy Assistant Secretary, Bureau of European and Eurasian Affairs, U.S. Department of State. He declared his admiration for foreign-born bureaucrats opposing Trump and added, “…they are the 21st-century heirs of two giants of 20th century U.S. national security policy who were born abroad: my former professor Zbigniew Brzezinski; and his fellow immigrant Henry Kissinger.”

Let’s recall that Kissinger, the architect of America’s Vietnam defeat, had insisted in 2009 that President Obama could create a New World Order and that he had a good foreign policy team. He made these comments on CNBC during a “celebration” of 30 years of diplomatic relations between the U.S. and China. Kissinger is perhaps best known for convincing President Nixon to establish diplomatic ties with China after insisting that China had abandoned communism, and was no longer a threat.

That doesn’t seem to have worked out so well.

It just so happens that George Kent’s professor, the late former top Carter Administration official Zbigniew Brzezinski, served an administration that achieved notoriety for abandoning Iran to the Iranian ayatollahs and Nicaragua to the communist Sandinistas.

Those policies didn’t work out so well, either.

They had wanted Trump to continue the Obama policies of supporting the Syrian Kurds, most of whom are associated with the Marxist-Leninist PKK terrorist organization. Trump rejected the advice of leaving American troops in the middle of a confrontation with the Turkish Armed Forces. In this case, Trump sided with a NATO member. Still, that didn’t satisfy the Trump critics.

“American Betrayal” screamed NBC News foreign correspondent Richard Engel, in a special Sunday night show on Trump-hating MSNBC. His main witness to this “betrayal” was a Kurdish terrorist wanted for his crimes in Turkey.

Having failed to get the U.S. into a war with Turkey, the foreign policy bureaucrats have turned their attention to Ukraine.

In the name of saving Ukraine, which was invaded by Russia under a Democratic President, Barack Hussein Obama, the Democrats are trying to impeach a president who has done far more than Obama in providing defensive weapons and loans.

Looking at the controversy objectively, it is clear that Trump was asking that Ukrainian authorities investigate the corruption that was making the country weak in the face of the Russian threat. It just so happens that some of the corruption involved Joe Biden’s son. Trump didn’t think their political status should exempt them from scrutiny.

The Obama administration not only failed to provide Ukraine the weapons the country needed for self-defense but was complicit in draining financial resources away from a major Ukrainian gas company to the Biden family. With good reason, Trump found fault with that approach. He couldn’t remain silent in the face of the evidence.

Rather than be impeached over this, Trump should be given an award for helping Ukraine get its fiscal and financial house in order. The Trump pressure campaign is just what that country — and American taxpayers — needed.

By making policy over Ukraine into an impeachable offense, Rep. Adam Schiff, a congressional sponsor of the recent Victims of Communism Memorial Foundation dinner, is making Ukraine’s membership in NATO – and a possible war with Russia – almost inevitable. He understands the stakes, declaring in a Los Angeles Times column,  “The heart of the [NATO] alliance — known as Article 5 — is the readiness to come to the aid of any member state if it is attacked.” That’s why it’s significant that one of his key witnesses, the aforementioned State Department official George P. Kent, said, “Ultimately, Ukraine is on a path to become a full security partner of the United States within NATO. ”

These bureaucrats and congressional liberals want American soldiers to fight and die on behalf of Ukraine against Russia, in a war that could go nuclear. But Trump’s interest in the Ukrainian role in opposing his candidacy for president is something else that must be thoroughly investigated by Congress before NATO membership for Ukraine is even considered.

Practically speaking, NATO membership would be an obvious provocation inviting more Russian aggression, at a time when NATO is weak and most of its members can’t or won’t pay for their own defense. What Trump has been saying about the NATO deadbeats is entirely factual. He has questioned the value of NATO when only five of its 29 members actually pay their way. The Senate Foreign Relations Committee voted down an amendment from Senator Rand Paul demanding that NATO members spend at least 2 percent of their GDP on defense, which the alliance agreed to in 2014.

On October 22, without any fanfare or even much coverage, the U.S. Senate voted 91-2 to accept tiny Macedonia as a member, expanding NATO to 30 members. The only two “no” votes came from Republican Senators Rand Paul and Mike Lee.

The Democrats’ impeachment campaign, which is destined to fail in the Senate, is likely to be followed up by congressional demands for NATO membership for Ukraine. Emulating the debate over the NATO Support Act, most Republicans are likely to go along with the Democrats, in order to demonstrate their toughness. American troops will then be called on to sacrifice their lives for another corrupt country, part of which is already under Russian occupation, that can’t defend itself.

Many Americans might be surprised to learn that 300 American soldiers have already been in Ukraine training its military, in a dangerous deployment authorized by Barack Hussein Obama back in 2015. Trump’s America-First base of support would be outraged if they knew and would want Trump to bring the troops home. Trump supporters might say that a corrupt Ukraine whose government opposed Trump’s election is not worth one more American dollar and certainly not one American soldier’s life.

For their part, the coup plotters know that a war with Russia will cost many lives and damage the U.S. and world economies. It is a cynical and dangerous ploy that is unfolding before our eyes. But they are prepared to risk war with Russia for the chance to deny Trump a second term.

*Cliff Kincaid is president of America’s Survival, Inc. www.usasurvival.org

11/18/19

ATTORNEY GENERAL WILLIAM BARR: How “The Resistance” Is Shredding the Rule of Law

Doug Ross @ Journal

By Attorney General William Barr

I deeply admire the American Presidency as a political and constitutional institution. I believe it is, one of the great, and remarkable innovations in our Constitution, and has been one of the most successful features of the Constitution in protecting the liberties of the American people. More than any other branch, it has fulfilled the expectations of the Framers.

Unfortunately, over the past several decades, we have seen steady encroachment on Presidential authority by the other branches of government. This process I think has substantially weakened the functioning of the Executive Branch, to the detriment of the Nation. This evening, I would like to expand a bit on these themes.

First, let me say a little about what the Framers had in mind in establishing an independent Executive in Article II of the Constitution.

The Framers and the Executive Branch

The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak. This is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.

During the Revolutionary era, American thinkers who considered inaugurating a republican form of government tended to think of the Executive component as essentially an errand boy of a Supreme legislative branch. Often the Executive (sometimes constituted as a multi-member council) was conceived as a creature of the Legislature, dependent on and subservient to that body, whose sole function was carrying out the Legislative will. Under the Articles of Confederation, for example, there was no Executive separate from Congress.

Things changed by the Constitutional Convention of 1787. To my mind, the real “miracle” in Philadelphia that summer was the creation of a strong Executive, independent of, and coequal with, the other two branches of government.

The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation. They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership. Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage. They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures. Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency, and decisiveness. They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature. Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct species of power. To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation. But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances. They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive. For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties.

A related and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster. This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management. These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations. Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

The Progressive Attack on the “Unitary Executive Theory”

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary Executive theory.” They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary Executive does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision. This is not “new,” and it is not a “theory.” It is a description of what the Framers unquestionably did in Article II of the Constitution.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function? The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power. Alternatively, they could vest Executive power in a solitary individual. The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.

Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment.

The implications of the Framers’ decision are obvious. If Congress attempts to vest the power to execute the law in someone beyond the control of the President, it contravenes the Framers’ clear intent to vest that power in a single person, the President. So much for this supposedly nefarious theory of the unitary Executive.

We all understand that the Framers expected that the three branches would be jostling and jousting with each other, as each threatened to encroach on the prerogatives of the others. They thought this was not only natural, but salutary, and they provisioned each branch with the wherewithal to fight and to defend itself in these interbranch struggles for power.

So let me turn now to how the Executive is presently faring in these interbranch battles. I am concerned that the deck has become stacked against the Executive. Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate. More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

Contemporary Arguments for Eroding the Executive Branch

When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive. The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess. So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic. It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that. You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial. Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary. A watershed in this evolution was, of course, the Glorious Revolution in 1689.

But by 1787, we had the exact opposite model in the United States. The Founders greatly admired how the British constitution had given rise to the principles of a balanced government. But they felt that the British constitution had achieved only an imperfect form of this model. They saw themselves as framing a more perfect version of separation of powers and a balanced constitution.

Part of their more perfect construction was a new kind of Executive. They created an office that was already the ideal Whig Executive. It already had built into it the limitations that Whig doctrine aspired to. It did not have the power to tax and spend; it was constrained by habeas corpus and by due process in enforcing the law against members of the body politic; it was elected for a limited term of office; and it was elected by the nation as a whole. That is a remarkable democratic institution – the only figure elected by the Nation as a whole. With the creation of the American Presidency, the Whig’s obsessive focus on the dangers of monarchical rule lost relevance.

This fundamental shift in view was reflected in the Convention debates over the new frame of government. Their concerns were very different from those that weighed on 17th century English Whigs. It was not Executive power that was of so much concern to them; it was the danger of the legislative branch, which they viewed as the most dangerous branch to liberty. As Madison warned, the “legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” And indeed, they viewed the Presidency as a check on the Legislative branch.

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers. The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution. Constitution generally assigns broad powers to each of the branches in defined areas. Thus, the Legislative power granted in the Constitution is granted to Congress. At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power. The Executive does not get to interfere with the broader Legislative power assigned to Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority. Let me first say something about the Legislature.

As I have said, the Framers fully expected intense pulling and hauling between the Congress and the President. Unfortunately, just in the past few years, we have seen these conflicts take on an entirely new character.

“The Resistance” and the Long-Term Damage It is Doing

Immediately after President Trump won the election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration.

Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate. This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office. As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation. How many times was cloture invoked on nominees during President Obama’s first term? 17 times. The Second President Bush’s first term? Four times. It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

“Oversight” and the Modern Administrative State

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government. They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control. This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch. More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits. And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents. I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power. But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such.

The costs of this constant harassment are real. For example, we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function. Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection. There is no FOIA for Congress or the Courts. Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process. That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when rather than doing the work of the people.

In recent years, we have seen substantial encroachment by Congress in the area of Executive privilege. The Executive Branch and the Supreme Court have long recognized that the need for confidentiality in Executive Branch decision-making necessarily means that some communications must remain off-limits to Congress and the public. There was a time when Congress respected this important principle as well. But today, Congress is increasingly quick to dismiss good-faith attempts to protect Executive Branch equities, labeling such efforts “obstruction of Congress” and holding Cabinet Secretaries in contempt.

The Irony

One of the ironies of today is that those who oppose this President constantly accuse this Administration of “shredding” constitutional norms and waging a war on the rule of law. When I ask my friends on the other side, what exactly are you referring to? I get vacuous stares, followed by sputtering about the Travel Ban or some such thing. While the President has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him. What I am talking about today are fundamental constitutional precepts. The fact is that this Administration’s policy initiatives and proposed rules, including the Travel Ban, have transgressed neither constitutional, nor traditional, norms, and have been amply supported by the law and patiently litigated through the Court system to vindication.

Indeed, measures undertaken by this Administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law.

The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law. This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic.

In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.

Conservatives, on the other hand, do not seek an earthly paradise. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing. This means that we naturally test the propriety and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?

For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy far, especially when doing so under the weight of a hyper-partisan media.

Separation of Powers

Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch.

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency. The Courts have done this in essentially two ways: First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. Second, the Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power.

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation.

The “constitutional means” to “resist encroachment” that Madison described takes various forms. As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other. Conspicuously absent from the list is running to the courts to resolve their disputes.

Where is the Accountability to the People?

That omission makes sense. When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal. And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people. And they will not even try to make the hard choices needed to forge compromise. The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts.

In any event, the prospect that courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise. How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his Executive function? Nothing in the Constitution provides a manageable standard for resolving such a question. It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.”

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. One way courts have effectively done this is by expanding both the scope and the intensity of judicial review.

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. They cannot be reduced to tidy evidentiary standards and specific quantum of proof in an adversarial process. They require what we used to call prudential judgment. They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. Such decisions frequently call into play the “precautionary principle.” This is the principle that when a decision-maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry.

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. This outlook now seems to have gone by the boards. Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs.

The Travel Ban Example

The Travel Ban case is a good example. There the President made a decision under an explicit legislative grant of authority, as well as his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes. The common denominator of the initial countries selected was that they were unquestionable hubs of terrorist activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry.

Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and a half on the theory that the President’s motive for the order was religious bias against Muslims. This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second-guessed since the beginning of the Trump Administration.

The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review. The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship.

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of Executive motive. They apply only to Executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.

The impact of these judicial intrusions on Executive responsibility has been hugely magnified by another judicial innovation – the nationwide injunction. First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit.

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda.

The legal flaws underlying nationwide injunctions are myriad. Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions.

Injunction Destruction

Of particular relevance to my topic, nationwide injunctions also disrupt the political process. There is no better example than the courts’ handling of the rescission of DACA. As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration. The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote. Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA.

Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise. In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide.

Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means. A humanitarian crisis at the southern border ensued. And just this week, the Supreme Court finally heard an argument on the legality of the DACA rescission.

The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful. That is not how our democratic system is supposed to work.

To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict – decisions that lie at the very core of the President’s discretion as Commander in Chief.

The Boumediene Debacle

This usurpation climaxed with the Court’s 2008 decision in Boumediene. There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. For the first time, the Court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them.

In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies. This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the President in our system.

As the Preamble suggests, governments are established for two different security reasons – to secure domestic tranquility and to provide for defense against external dangers. These are two very different realms of government action.

In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. Thus, the Constitution in this arena deliberately sacrifices efficiency; invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and dilutes the government’s power by dividing it and turning it on itself as a check, at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter.

None of these considerations are applicable when the government is defending the country against armed attacks from foreign enemies. In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat. Here, the Constitution is not concerned with handicapping the government to preserve other values. The Constitution does not confer “rights” on foreign enemies. Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane.

The impact of Boumediene has been extremely consequential. For the first time in American history, our armed forces are incapable of taking prisoners. We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with a drone or any other weapon. But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation.

A Hope for this Partisan Age

The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded.

In this partisan age, we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure. As we look back over the sweep of American history, it has been the American Presidency that has best fulfilled the vision of the Founders. It has brought to our Republic a dynamism and effectiveness that other democracies have lacked.

At every critical juncture where the country has faced a great challenge –

– whether it be in our earliest years as the weak, nascent country combating regional rebellions and maneuvering for survival in a world of far stronger nations;

– whether it be during our period of continental expansion, with the Louisiana Purchase, and the acquisition of Mexican territory;

– whether it be the Civil War, the epic test of the Nation;

– World War II and the struggle against Fascism;

– the Cold War and the challenge of Communism;

– the struggle against racial discrimination;

– and most recently, the fight against Islamist Fascism and international terrorism.

One would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy, and perseverance that allowed us to surmount the challenge and brought us success.

In so many areas, it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles. Not the least of these is the Framers’ vision of a strong, independent Executive, chosen by the country as a whole.

Via BadBlue News, my replacement for Drudge.

11/18/19

Dzhokhar Tsarnaev Appeal Brings Details of 2011 Murders

By: Denise Simon | Founders Code

Image result for tamerlan and dzhokhar tsarnaev

The man who implicated Boston Marathon bomber Tamerlan Tsarnaev in a 2011 triple-murder in Waltham said he and Tsarnaev took thousands of dollars from the victims and spent more than an hour trying to clean up the crime scene, law enforcement officials said.

The details were contained in a search warrant affidavit partially unsealed Wednesday in federal court in Boston in connection with the pending appeal of Dzhokhar Tsarnaev, now 26, the younger brother of Tamerlan and his coconspirator in the bombings.

Who's Who in the Dzhokhar Tsarnaev trial. (Photo composite Zeninjor Enwemeka/WBUR)  Who are these people, click here.

Dzhokhar Tsarnaev is challenging his conviction and death sentence in the Marathon case. He is claiming that he acted under the sway of a violent, domineering older brother. Tamerlan Tsarnaev died days after the Marathon attack during a confrontation with police in Watertown.

While Tamerlan Tsarnaev and a friend, Ibragim Todashev, were suspected in the Waltham killings previously, this week’s filing offers new details into the actions of the elder Tsarnaev in the years leading up to the 2013 Marathon bombings.

The search warrant affidavit, filed in the bombing case, recounted statements that Todashev made to investigators in a May 2013 interview. Shortly after making the statements, officials say, Todashev was fatally shot by a Boston FBI agent when he allegedly lunged at the agent with a metal broomstick.

Officials also alleged Todashev hurled a coffee table at the agent, striking him in the head. Authorities ruled that the FBI agent who shot Todashev had acted in self-defense.

“Todashev confessed that he and Tamerlan participated in the Waltham murders” on Sept. 11, 2011, of Brendan Mess, 25, Erik H. Weissman, 31, and Raphael M. Teken, 37, the affidavit said. The victims were killed in Mess’s apartment on Harding Avenue in Waltham.

The Middlesex district attorney’s office said Friday the investigation into the Waltham triple slaying was still open.

One of the Waltham victims, Mess, had formerly been a close friend of Tamerlan Tsarnaev. But Tsarnaev did not attend Mess’s funeral, a friend of Mess’s told the Globe in 2013, saying it raised suspicions.

The affidavit said Todashev indicated “he and Tamerlan had agreed initially just to rob the victims, whom they knew to be drug dealers who sold marijuana. Todashev said that he and Tamerlan took several thousand dollars from the residence and split the money. Todashev said that Tamerlan had a gun, which he brandished to enter the residence.”

Todashev indicated that Tamerlan Tsarnaev chose to escalate the crime from robbery to murder.

“Tamerlan decided that they should eliminate any witnesses to the crime, and then Todashev and Tamerlan bound the victims, who were ultimately murdered,” the affidavit said. “Todashev said that they spent over an hour cleaning the scene.”

According to this week’s filing, Todashev and Tamerlan Tsarnaev wanted to remove “traces of their fingerprints and other identifying details” from the scene.

The two traveled to the scene of the murders together in a gray, 1999 Honda CR-V and left the scene together in that same vehicle, according to the filing.

The victims were discovered in Mess’s apartment with their throats slit and their bodies sprinkled with marijuana.

The search warrant was for Tamerlan Tsarnaev’s Honda CR-V. Investigators were seeking “blood, DNA, trace evidence, and other items” in the vehicle that may have linked him and Todashev to the Waltham slaying, according to the affidavit.

It wasn’t immediately clear whether any physical evidence was recovered.

The Tsarnaev siblings carried out the April 15, 2013, bombings, which killed three people, including an 8-year-old Dorchester boy, and wounded more than 260 others. The brothers also killed an MIT police officer while they were on the run.

State and federal investigators first contacted Todashev, who was a gym buddy of Tamerlan Tsarnaev before he moved to Florida, six days after the Marathon bombings.

Todashev spoke to investigators several times in the weeks after the bombings. But, after Todashev booked a ticket home to Russia in May, an FBI agent and two state troopers traveled to Orlando to interview him.

At his apartment in May 2013, the three law enforcement officers interviewed Todashev starting around 7:30 p.m. and stretching past midnight. Another officer stood guard outside.

At first, Todashev denied involvement in the Waltham murders: “Like I said, I didn’t kill nobody and I need your help.” But eventually, he confessed that he was involved in it, officials said.

Shortly after midnight, the apartment erupted in violence. A coffee table was hurled in the air, opening a gash on the FBI agent’s head that would require nine staples. Todashev then brandished a metal broomstick and charged. The bleeding agent shouted at Todashev to stop, then fired his gun three or four times. Todashev fell, but sprang up and lunged again, and the agent shot him several more times. Todashev fell again, face down, and was pronounced dead at the scene.

Dzhokhar Tsarnaev was convicted and sentenced to death in 2015 for his admitted role in the Marathon bombings.

The heavily redacted warrant was unsealed Wednesday at the request of Dzhokhar Tsarnaev’s lawyers.

The attorneys maintain the trial judge erred when he barred the defense from telling jurors about Tamerlan Tsarnaev’s suspected involvement in the Waltham case.

Federal prosecutors have responded that the Waltham evidence doesn’t “show that Tamerlan ‘influenced’ or ‘intimidated’ him into committing the crimes in this case or that [Dzhokhar] Tsarnaev played a lesser role in the bombing.”

Oral arguments in Dzhokhar Tsarnaev’s appeal are slated for Dec. 12 before the US Court of Appeals for the First Circuit. He’s currently incarcerated at a federal supermax facility in Colorado.

11/18/19

Trapper’s Quote Of The Week

By: Trapper Pettit

Hearsay is an ugly word when it overrides reality. As a point of fact, just the other day, my cousin Joe Bob called. He said he heard from his brother’s third wife, Jill, who heard from her second cousin’s mother Darcy, who had talked to her daughter Frieda. Frieda worked in the White House as a maid and overheard from an unidentified source that President Trump sexually identifies as an LGBTQIACMXYZ individual. But more importantly, because Kim Jong-Un likes to wear his sister’s underwear, the last summit between the two leaders wasn’t a summit but was a date. Frieda filled out a whistleblower complaint, has disappeared from the planet, and Adam Shiff has called a closed-door meeting. Now, do we understand the relevance of hearsay as we scratch our heads and think WTF?