Category Archives: Supreme Court

Why Liberals should support Neil Gorsuch for the Supreme Court

What have we learned in the last week? First, the President of the United States is a man who has embraced progressive tactics and sees little restraint on his own power. Second, there is not much will in the Republican Congress to push back against a Republican president, even if he more resembles Barack Obama than Ronald Reagan. That leaves the Supreme Court as the last line of defense for the American people.

In this light, avoiding the confirmation of Merrick Garland to the court must be viewed as a tremendous win for the American people. Despite being a centrist on the politics, Garland’s key qualification in the eyes of the left was his deference to the other branches of government. He would have been the fifth vote for deferring to the competence and good will of the executive and the legislature.

For the left, and especially progressives, I can see the attraction so long as their president was in the White House. No pesky Supreme Court opposing progress! What could be better?

Whoops, the wrong guy got voted in by a regressive white minority! That’s what my left-wing friends tell me, anyway. Arguments about the electoral college aside, the left is now going to be fighting the agenda in Washington rather than driving it—and they’ll need the Supreme Court’s help.

So far, the left-wing reaction on Gorsuch is focusing on two things aside from straight up partisanship: abortion (naturally) and the Hobby Lobby case. It is, as usual, a case of tunnel vision. To his credit, Ian Millhiser at Think Progress goes deeper than most, and focuses on two additional topics: Gorsuch’s views on Chevron v. NRDC and his libertarian leanings on crime.

Even still, Millhiser and the rest of the left manage to miss the big picture on Gorsuch: He has an internally consistent judicial philosophy that embodies the same skepticism of power that our system of checks and balances is predicated on. His positions on Hobby Lobby, Chevron, and criminal law enforcement are all outgrowths of the same core belief. They all look at government exercises of power and ask if they are allowed by the Constitution.

Let me say it again: They all look at government exercises of power and ask if they are allowed by the Constitution. Who is exercising government power nowadays? Donald Trump. Looking at government exercises of power and asking if they are allowed by the Constitution seems like a pretty good idea now, doesn’t it?

This is where we need to split the left into two groups: liberals and progressives. Progressives will never support Neil Gorsuch for the court. He opposes, more than anything, their belief that the progressive agenda should be implemented with whatever power is needed.

Liberals, on the other hand, still care about things like individual rights and due process despite sharing some goals with progressives. It is liberals who need to take a fresh look at Neil Gorsuch. There are issues far more important in this Supreme Court appointment than abortion and birth control. The very concept of limiting executive power is at stake.

In nominating Neil Gorsuch, Donald Trump has put forward a justice who will be an impediment to his agenda. He is doing this now because he has not yet felt the yoke of the court come down upon him. In a year or two, once Trump has really figured out the way Washington works, we will not see a nominee like this. We will see another John Roberts or Merrick Garland, who put judicial deference first. Remember, in 2017 judicial deference will be deference to Donald Trump.

Liberal friends, support Neil Gorsuch while you have the chance.

A Lesser of Evils: Why Ted Cruz Cannot Be My Anti-Trump

I’ve never been a lesser-of-evils sort of voter. It’s too cynical and depressing an approach to life. Anyway I rarely think one of the major party candidates is “better” in some meaningful sense than the other.

This election is different. I cannot shake a nagging unease that one candidate must be avoided, perhaps with a vote for any marginally lesser evil capable of stopping him, however distasteful.

That candidate is Ted Cruz.

I’m not joking. There’s no punch line coming. I don’t think Ted Cruz believes in fundamental, unenumerated rights, constitutionally protected from political majorities at the state and local levels.

Probably many or even most of the other candidates share this shortcoming. What sets Cruz apart is his more sophisticated ability to appoint Supreme Court justices who share his views, as he has vowed to do.

Under that specter, liberty-leaning voters should ask for clarity and reassurance from the Cruz campaign on the following issues before casting a vote in his support.

Does Ted Cruz Want to Limit the Power of Judicial Review? In 1803, the Supreme Court decided Marbury v. Madison. Since that time, the Court has exercised three powers:

  1. It can refuse to enforce acts of the other branches if five or more of its nine justices believe such act was in excess of constitutional powers.
  2. It can enforce acts of the other branches of government, if five or more of the justices believe such act was constitutional.
  3. It can require otherwise constitutional acts of the other branches to be exercised in accordance with the Equal Protection Clause.

That’s it. Under the first, the Court delineates areas of individual liberty into which no political majority may intrude. Under the second and third, it enforces the acts of other branches of government. Under none of the three does the Court “make law.”

Liberty voters should therefore ask what Ted Cruz is gunning for when he says things like:

I don’t think we should entrust governing our society to 5 unelected lawyers in Washington. Why would ya possibly hand over the rights of 320 million Americans to 5 lawyers in Washington to say, “We’re gonna decide the rules that govern ya?” If ya wanna win an issue, go to the ballot box and win at the ballot box. That’s the way the Constitution was designed.

I think we can rule out number two; he’s not complaining about acts of the political branches. His rhetoric, to the contrary, suggests that he wants political majorities unfettered by such inconveniences as meddling Supreme Court justices.

He could be taking aim at number three, in which case it is not the laws he dislikes, but the doctrine of Equal Protection. Either way, the Court is not responsible for having enacted the laws that are subject to that doctrine. The political branches are.

It sure sounds like it is the first option Cruz is targeting. He does not like the Court delineating areas of individual liberty beyond the reach of political majorities.

That is a deeply authoritarian approach to government. Unless and until Cruz repudiates it convincingly, he cannot be my “not-Trump.”

Does Ted Cruz Believe in Unenumerated Rights and Substantive Due Process? Under the view of many libertarians, the Constitution enumerates the powers of government, but not the rights of individuals. The former are few, narrow and circumscribed. The latter are many, broad and transcendent.

This is the view held by Rand Paul and other libertarian constitutionalists from organizations like Reason Magazine, the Cato Institute, the Foundation for Economic Education, and the Institute for Justice.

It is also my view.

One textual source for this approach is the Fourteenth Amendment to the Constitution, which prohibits political majorities at the state and local levels from depriving individuals of the privileges and immunities of citizenship, of equal protection of laws, or of liberty without due process.

The “liberty” thusly protected has been interpreted to include economic endeavors as well as other peaceful activities integral to enjoyment of life and the pursuit of happiness. The concept that such freedoms are Constitutionally protected, even though not expressly mentioned, is sometimes referred to as the doctrine of “substantive due process.”

There are competing schools of thought. One is that only individual rights expressly enumerated in the Constitution are beyond the reach of political majorities. Under this view, the Fourteenth Amendment was adopted to prohibit racial discrimination, not to proscribe state infringement of unenumerated rights.

That is the view expressed by Ted Cruz at a hearing he conducted before the Senate Judiciary Committee exploring ways to “rein in” the Supreme Court. Cruz’s comments at the hearing suggest, on deeply personal issues from marriage to economic rights, he prefers “the Supreme Court defer to state legislative decisions rather than uphold individual rights.”

This is as unlibertarian a position as a candidate could hold. Saving the GOP from a Trump loss to Hillary Clinton is not a reason to support a nominee committed to undermining individual liberty in favor of majority rule.

Is Cruz Committed to Individual Rights? Or States Rights? Ted Cruz’s passion is not the fundamental liberty of individuals, arguably enshrined in the Fourteenth Amendment. It is, rather, the power of state legislatures found in the Tenth.

He’s “a Tenth Amendment guy,” according to his wife. Indeed he once headed the Texas Public Policy Foundation’s Center for Tenth Amendment Studies. When Ted Cruz talks about limited government, he is talking about limiting federal government. His concern is federal versus state, not individual versus collective.

Then too, even on that more beloved Constitutional provision, Cruz is willing to stray if it means more power for the right kind of majorities. He was in favor of the federal government defining marriage before he was against it. He likes states’ rights when they ban same-sex marriage, but not as much when they decriminalize marijuana.

He might be a federalist, for those who don’t mind states’ rights served squishy. But he’s no libertarian.

How Far Will Ted Cruz Go to Bend the Judiciary to His Interpretation of the Constitution? Despite the “sour fruit” of John Roberts’ decisions in NFIB v. Sebelius and King v. Burwell, conservatives continue their misguided pursuit of a “deferential” judiciary. In their statist hearts, they would rather accept the big government of Obamacare than lose the power to regulate social order.

If NFIB v. Sebelius is the price of winning the next Obergefell v. Hodges, it is one they will pay.

This is not a trade-off liberty lovers should make.

Yet Ted Cruz wants to subject the Supreme Court to term limits and retention elections. As the Institute for Justice’s Evan Bernick wrote in the wake of Cruz’s SCOTUS hearing:

…[I]t is Cruz who strayed from the text and history of the Constitution, both in his histrionic criticism of Obergefell and his suggestion that the cure for America’s constitutional ills is an even more inert judiciary.

Cruz’s most fundamental error lay in the premise of the hearing itself: The most pressing threat to constitutionally limited government today is not “judicial activism” but reflexive judicial deference to the political branches.

We can have a judiciary that reflexively defers to the political branches or we can have constitutionally limited government — but we cannot have both.

Liberty voters must consider whether they want Supreme Court appointees to facilitate the powers of political majorities or to protect individual rights from the overreach of such exercise. Ted Cruz appears to be on the wrong side of that choice.

Until he convinces me otherwise, that puts him on the wrong side of mine.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Sorry, Donald. Cruz and Rubio are BOTH Eligible for President

If I had a dollar for every time I heard someone say that Ted Cruz and Marco Rubio are ineligible to run for president because they are not “natural-born citizens,” I would have more money than the recent $1.5 Billion Powerball winners. Donald Trump is wrong. The Constitution and case law are clear. Both Ted Cruz and Marco Rubio are natural-born citizens, and therefore eligible to run for president.

Article II, Section 1 of the Constitution makes it clear that only a natural-born citizen, who is at least 35 years old, is eligible to be president:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

So are Ted Cruz and Marco Rubio natural-born citizens under the Constitution? The answer is yes. While the Constitution does not define natural-born, statutes and the common law, dating back to pre-colonial English common law have addressed and settled this issue.

Ted Cruz is a Natural-Born U.S. Citizen

Ted Cruz was born December 22, 1970 in Calgary, Alberta, Canada. His father, Rafael Cruz, was born in Cuba and his mother, Eleanor Wilson, was born in Wilmington, Delaware. The family relocated to Texas in 1974.

Most legal scholars agree that a natural-born citizen is one who does not need to go through the naturalization process. The Naturalization Act of 1790 addresses the issue of children born outside our borders to American citizens:

[T]he children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

Many birthers, such as Ann Coulter, make the argument that at the time the Naturalization Act of 1790 was passed, citizenship only passed through the father, requiring that the father must be a U.S. Citizen. While this is true, they hold the false belief that the Constitution has not been amended to change this. At the time of the signing of the Act, women also could not own property without her husband. Since it is not mentioned or amended in the Constitution, I hope that Coulter is prepared to forfeit her property she owns on her own since that is her interpretation of the Constitution. But I digress. Furthermore, the definition of a natural-born citizen was later codified at 8 U.S.C. 1401(d). It reads in pertinent part:

The following shall be nationals and citizens of the United States at birth:

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

Since Ted Cruz’s mother is a natural-born citizen, Ted Cruz is also a natural born citizen. It does not matter that he was born in Canada. The Supreme Court has also answered this question. In Rogers v. Bellei, 401 U.S. 815 (1971), the Court held that the federal government may revoke the citizenship of a natural-born citizen if certain requirements were not met. In this case, Aldo Mario Bellei was born in Italy to an American mother and an Italian father. Mr. Bellei held both Italian and U.S. citizenship.

While the primary issue reviewed in Bellei was not on the definition of a natural-born citizen, the Court first had to determine that Mr. Bellei was a natural-born citizen. Upon determining that Mr. Bellei was a natural-born U.S. citizen, the Court held that the federal government may set a condition subsequent on citizenship for those born outside the United States. Specifically, the government may revoke the citizenship of natural-born citizens born outside the United States when citizens do not establish domicile within the United States by age 23 and remain for at least five (5) years. See Immigration and Naturalization Act of 1952 sec. 311.

In the case of Ted Cruz, he moved to the United States at the age of three (3) years old and has maintained domicile in the United States since then. Therefore, he is a natural-born citizen of the United States and eligible to run for and serve as President of the United States.

Marco Rubio is a Natural-Born U.S. Citizen

Presidential candidate, Donald Trump recently stated that he is unsure that Marco Rubio is eligible to run for president. The case for Rubio’s citizenship is more clear-cut than the case for Cruz. Marco Rubio was born on May 28, 1971 in Miami, FL. His parents came to the United States in 1956. At the time of Rubio’s birth, his parents were Permanent Residents of the United States. This means that his parents were here legally with their “green cards.” Federal law is clear that those born on U.S. soil and subject to the jurisdiction of the United States are natural-born citizens. 8 U.S.C. 1401(a) reads in pertinent part:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof.
Of course, the 14th Amendment sec. 1 provides that:
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.
(emphasis added)
Since Marco Rubio was born on American soil (last time I checked, Miami is still American soil), and he is subject to the jurisdiction of the United States, he is clearly a natural-born citizen.
The Supreme Court has also ruled on this. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that a child born on U.S. soil to permanent residents of the United States is a natural-born citizen by virtue of the 14th Amendment. Justice Horace Gray, citing to U.S. v. Rhodes (1866), stated in his majority opinion that:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . .
Wong Kim Ark, 169 U.S. at 662. (emphasis added)
Conclusion
The fact that Donald Trump and other birthers would raise questions as to the eligibility of either Ted Cruz or Marco Rubio to run for president is absolutely absurd. Any litigation of these issues is frivolous and a waste of taxpayer money. It is this lawyer’s belief that anyone who brings such a frivolous suit should be sanctioned and responsible for government attorney fees. Enough is enough. It is time to put the birther argument to rest.

Albert is a licensed attorney and holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son named Albert and a black lab puppy named Lincoln. In his spare time, he plays and coaches soccer.

SCOTUS Has Accepted Appeal of Case That Could Topple Obamacare

SCOTUS

On Friday, United States Supreme Court agreed to hear the appeal in King v. Burwell. The plaintiffs in that case assert that the Patient Protection and Affordable Care Act only allows tax credits to people who buy insurance “from an exchange established by a state.” The Fourth Circuit Court of Appeal disagreed and ruled that the federal government may interpret that language as allowing tax credits to purchasers who bought insurance on one of the federal exchanges, operating in the more than 30 states that declined to create their own.

On the same day the Fourth Circuit delivered its decision in King, a panel in the D.C. Circuit found for the plaintiffs in a companion case captioned Halbig v. Burwell. This conflict would ordinarily invite SCOTUS to weigh in. However, the D.C. Circuit then accepted a rehearing en banc in Halbig. Thus, even though the King plaintiffs appealed, many observers speculated SCOTUS would wait to see if a conflict really developed, or if after rehearing in Halbig, the courts ended up aligned.

As a result, it is somewhat surprising that SCOTUS accepted the King appeal, and it may signal bad news for the Affordable Care Act. As Nicholas Bagley writing a SCOTUSblog explains:

[F]our justices apparently think—or at least are inclined to think—that King was wrongly decided. … [T]here’s no other reason to take King. The challengers urged the Court to intervene now in order to resolve “uncertainty” about the availability of federal tax credits. In the absence of a split, however, the only source of uncertainty is how the Supreme Court might eventually rule. After all, if it was clear that the Court would affirm in King, there would have been no need to intervene now. The Court could have stood pat, confident that it could correct any errant decisions that might someday arise.

There’s uncertainty only if you think the Supreme Court might invalidate the IRS rule. That’s why the justices’ votes on whether to grant the case are decent proxies for how they’ll decide the case. The justices who agree with King wouldn’t vote to grant. They would instead want to signal to their colleagues that, in their view, the IRS rule ought to be upheld. The justices who disagree with King would want to signal the opposite.

And there are at least four such justices. If those four adhere to their views—and their views are tentative at this stage, but by no means ill-informed—the challengers just need one more vote to win. In all likelihood, that means that either Chief Justice Roberts or Justice Kennedy will again hold the key vote.

If I read this correctly, the speculation is that four (or more) SCOTUS justices agreed to accept the case in order to send a signal to the lower courts still considering challenges to this provision of the ACA. The signal they wanted to send is that those other courts should not necessarily follow King, because SCOTUS might think it was wrongly decided.

A reversal of King (i.e., a finding in the plaintiff challengers’ favor) would seriously undermine—perhaps fatally—the structure of the Affordable Care Act. Fully 87% of the people who purchased policies through the federal exchanges during the first open enrollment period are receiving subsidies. If the government cannot give subsidies to low-income purchasers, it cannot tax them for failing to have the insurance, and the entire system collapses under its own weight. Fewer people can afford the insurance, the risk pool shrinks, costs rise, and more people are forced to opt out.

If on the other hand, SCOTUS upholds tax credits not authorized by Congress, it would be one more in a long line of revisions, waivers, exemptions, delays and modifications made to the law made by the very administration that purports to uphold it.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

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