Advancing Lawlessness

"And, when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?"
--Sir Thomas More (A Man for All Seasons)

As Donald Trump continues to gain ground in Republican primaries, progressives are becoming increasingly uneasy about the spectre of a Trump presidency. Al Sharpton, for example, claims that if Trump wins then he will leave the country because Trump would "probably have me deported anyhow."

The lawlessness that progressives envision under a Trump presidency would only be an extension of the lawlessness that they have condoned under the Obama administration. Unfortunately for them, it would not be their brand of lawlessness.

Therein lies the problem with discretionary rule. Things are fine when it's your guy ruling by fiat. But when your guy is replaced by someone with a different view of the world, then you're in trouble.

Justice, they say, is blind. So is true law. True law does not care who sits in the oval office because a president could not bend it to suit his or her wishes.

Obama's Lawlessness

"Gentlemen, whenever you have a group of individuals who are beyond any investigation, who can manipulate the press, judges, members of our Congress, you are always going to have in our government those who are above the law."
--Nico Toscani (Above the Law)

These pages have discussed the lawless behavior of the Obama administration before (e.g., here, here, here). Here is another list of some this president's most egregious acts of lawlessness--although I think Judge Nap offers a more comprehensive list.

An interesting aspect of executive lawlessness is that partisans are prone to look the other way when their administration suspends law, while arguing that "it's the law" when seeking legal compliance from opposing administrations.

Condoning Lawlessness

Hello darkness, my old friend
I've come to talk to you again
--Simon & Garfunkel

Judge Nap discusses President Obama's federal lawlessness and lack of congressional intervention.

As the supreme law of the land, the Constitution delegates "all legislative powers" to Congress. All. The Constitution also requires the president to swear to "faithfully execute the Office of the President of the United States" and "preserve, protect, and defend the Constitution of the United States."

As such, presidental law writing and/or failure to enforce laws passed by Congress is unconstitutional and violates the oath of office.

The Judge lists some of the ways that Obama has broken the law:

Bombing Libya without a declaration of war from Congress.

Creating a new set of rules outside of Congress to permit 11 million illegal immigrants from being deported.

Using drones to kill people without either a) declaration of war from Congress on the country housing the targets or b) affording the targets due process.

Broad spying on the US public without a law authorized by Congress.

Dozens of changes made to the Affordable Care Act without congressional approval.

Moving to permit the Department of Homeland Security to monitor movement on public roads by photographing license plates of all motor vehicles.

Save for isolated actions such as Senator Rand Paul's class action lawsuit that sues the NSA over its spying program, Congress has been condoning the president's lawlessness by doing nothing.

As the judge observes, congresspeople who do not challenge this president's unlawful behavior have failed their oaths of office as well. They are unfit to govern in a free society, and should be removed from office.

Anarchy

"Dogs and cats, living together. Mass hysteria!"
--Dr Peter Venkman (Ghostbusters)

Google word counts associated with 'anarchy' have probably increased recently. Liberal talking points appear to include labeling as anarchists those people who oppose agendas for larger government.

In its most straightforward sense, anarchy means self-rule. Rather than institutionalizing a government to rule people, individuals govern themselves.

This is certainly not the picture that today's liberals want to paint when they shout anarchy. After all, self-rule was a founding principle of America. The last thing liberals want to do is to awaken visions of self-rule in the heads of a slumbering populace.

Instead, liberals want to associate anarchy with conditions of lawlessness and chaos. Yes, lawlessness and chaos can be a consequence of anarchy. But these conditions can just as readily be associated with institutionalized governments--as history has repeatedly demonstrated.

But Leftists know the power of words, and they like to engage in the classic Liberal Mind Trick. Change the definition of the word and then repeat it in hopes that citizens will internalize the propaganda.

Proponents of the State want to portray anarchy as bad. Their hoped-for outcome is captured by Joseph Sobran at the end of this nice little essay:

"The measure of the state's success is that the word 'anarchy' frightens people, while the word 'state' does not."

Still, a fair question to ask is whether freedom is best realized under conditions of anarchy or under some form of limited government. We'll circle back to this question in a future post as it is one that I've been pondering lately.

Executive Lawlessness

Let me be your ruler
You can call me Queen Bee
And baby I'll rule, I'll rule, I'll rule, I'll rule
Let me live that fantasy
--Lorde

In his State of the Union message last week, President Obama promised that "wherever and whenever [he] can take steps without legislation to expand opportunity for more American families, that's what [he's] going to do."

As an American citizen, Mr Obama can act in many ways to expand opportunity for others. For example, he could donate part of his salary to needy families. He needs no legislative backing to do so.

However, what the president is signaling here is intent to act by issuing executive orders. Although the Constitution makes no explicit provision for the issuance of executive orders, the chief executive of the executive branch of the federal government has traditionally thought to be within his pervue to issue orders that enable him to execute laws developed by Congress. For example, the president might order the establishment or continuance of committees that advise the executive branch on technical issues associated with implementing particular laws.

Presidents have acted accordingly. FDR holds the record, issuing more than 3,500 executive orders during his administration.

However, executive orders that establish new laws or defy extant laws are not constitutionally valid. The presidency is not a lawmaking position. The president has no constitutional power to act unilaterally.

Yet, when President Obama overtly states that he intends to "take steps without legislation," it is difficult not to construe that this is precisely what he intends to do.

In fact, President Obama has already done so. Judge Nap offers the example of executive orders issued by the president related to immigration prior to the 2012 election that had no basis in congressional law. The president has also materially changed the law thru orders related to killing purported enemies of the United States by drones, and to changing requirements specified by the Affordable Care Act statute. Thorough documentation of this administration's attempts at expand executive power is being developed by a Congressional committee headed by Senator Ted Cruz (TX).

When presidents act without Congressional approval, they are practicing rule by fiat. Discretionary rule was clearly a situation that our American ancestors feared and endeavored to avoid.

Uncovering the FBI

If you think that I don't know about the little tricks you've played
And never see you when deliberately you put things in my way
--The Who

Yesterday, the House Oversight Committee Chairman issued a subpoena to the FBI for the full case file in the Hillary Clinton email investigation. Remarkably, the subpoena was issued in the middle of a congressional hearing with the FBI on the matter.

As Judge Nap recounts, insiders are saying that the Bureau is attempting to create a false impression of what happened by selectively releasing portions of the investigation. If all of it is released, then people can form more informed opinions about the thoroughness of the investigation and the Bureau's decision not to prosecute Clinton.

Anything that challenges the blatant lawlessness of this administration and of the Clintons is refreshing.

Elections and Expansion of Power

"And, when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, all the laws being flat?"
--Sir Thomas More (A Man for All Seasons)

Increasingly, presidential elections in America throw groups who supported the losing candidate into panic. The panic includes pointing fingers. The president elect is a marxist or fascist. People who voted for him are uninformed or just plain idiots. The election system is rigged or unfair.

An interesting thing about this phenomenon is that it is bipartisan. For example, eight (and four) years ago, Republicans went into hysteria when Barack Obama was elected. Today, it is Democrats' turn as Donald Trump prepares to take the reigns. Complaints only arise when their side loses.

One way to explain this behavior is that it aligns with social identity theory and the psychology of losing. People tend to identify with groups--sometimes very strongly. They can develop such an psychologically vested interest in their group being superior that, when their group loses or is put down, they cope with cognitive dissonance by blaming others.

Another way to explain it is that there is true reason to be terrified. Today's US president holds far more discretionary power than our founding ancestors intended. That may be ok with you if the person in charge shares your values. But if a sitting president does not like you or the group you belong to, then the nation's chief executive is in a position to trample your rights with, borrowing from the current administration's stated approach to lawlessness, with the stroke of a pen or a phone call.

The anti-federalists foresaw this situation long ago. Marry discretionary rule with democratic election processes, and you were likely to see at some point just what we're living through today.

But the proper source of blame isn't the other guy. It is with us when we support discretionary expansion of presidential powers when it suits our interests. Because, at some point, that discretionary power quite likely will be wielded by someone we don't like and who doesn't like us.

Legal Immigration

In violent times
You shouldn't have to sell your soul
In black and white
They really, really ought to know
--Tears For Fears

The left loves employing positive substitute symbols because of rhetoric's capacity to deceive. A current favorite is 'immigration.' People tend to have a natural affinity for the term because, by and large, their ancestors were immigrants. This is true for most people in most countries, as the history of man can be told as a story of migration.

We Americans are particularly fond of the immigrant term as it conjures recollection of our E pluribus unum founding and millions subsequently pouring out of ships at Ellis Island in search of better lives.

1882-S $1 Morgan PCGS MS67 CAC

The adjective that the left prefers to leave out of the American immigration narrative is 'legal.' Since the country's founding, laws have governed the admission of immigrants into the country. The American melting pot recipe has been one of legal immigration.

Leftists omit 'legal' from the immigration discussion out of political expedience. The millions of illegal immigrants currently residing in the US have been a source of votes. They also support a statist agenda grounded in globalism. Former President Obama's lawlessness with respect to enforcing immigration law exemplifies the left's position.

Because leftists know that they would have difficulty making their case to most Americans that illegal immigration is a fine thing for the country, they must restrict the narrative to immigration only. Then, the accusations fly. Those who support Trump's Wall or other methods of immigration law enforcement are painted as anti-immigrant. Or xenophobes. Or nativists.

If the name-calling grates on enough people, however, then the positive substitute symbol strategy could very well backfire. Americans are likely to become more conscious of the difference between legal and illegal immigration.

Not sure the left wants that to happen.

Paper Trail for Guns

[in Spanish] "Go to the sporting goods store. From the files obtain Forms 4473. These will contain descriptions of weapons, and lists of private ownership."
--Col Ernesto Bella (The Red Dawn)

In the original film The Red Dawn, there is a scene where the Cuban-born head of local invading forces instructs his subordinates to head to the sporting goods stores and look for the records that indicate who owns the guns in town. Knowing who those people were, of course, would make it easier for the invaders to anticipate and counter resistance.

Currently, the feds have access to gun ownership info. By law, however, they can use that info for statistical purposes only and must destroy identifiable information such as names and addresses.

A new GAO report, however, finds that the feds, specifically the Bureau of Alcohol, Tobacco, and Firearms (ATF) is not adhering to this policy. As Judge Nap observes, this constitutes another situation where this lawless administration has broken the law.

It is easy to construe where this brand of lawlessness heads under particular heads of state.

Anarchy and Minarchy

"Why should I trade one tyrant three thousand miles away for three thousand tyrants one mile away? An elected legislature can trample a man's rights as easily as a king can."
--Benjamin Martin (The Patriot)

Anarchy is self-rule. Anarchy is not lawlessness. It is people ruling themselves with no government intervention.

Minarchy is rule by a formal government of limited (MINimal) scope. Minarchists such as Bastiat confine the proper scope of government to helping individuals protect their interests from aggression by others. This suggests three legitimate roles for minarchical government: to protect individuals from domestic aggressors, to protect the country against foreign invaders, and to provide a judiciary for resolving legal disputes.

The founders sided with minarchy. Jefferson wrote that effective government design helps secure people's natural rights. The framers subsequently crafted a Constitution that defined the limits of central government.

A counter-belief, one voiced by many Antifederalists, is that it is impossible to constrain centralized government to constitutional limitations. Over time, government will find ways to grow beyond its legitimate boundaries. When it does, government becomes aggressor rather than defender.

How would anarchists provide for protection against aggression and for resolving disputes? Rothbard, Block, and others suggest privatizing everything--including police, military, and the courts.

While I understand the rationale, and am more sympathetic to these arguments than previously, I'm not there yet. Privatizing police and military seems plausible. However, it is difficult for me to see privatizing courts. The problem that plagues today's courts is that they are subject to interest and discretion. It is hard to see how that changes with courts in private hands. In fact, it is easy to envision interest and discretion escalating in the private court scenario--due to human tendencies to seek more for less.

It seem more reasonable to ground public courts in natural law rather than in positivism. Ways to do that include employing super-majority or unanimous decision rules when rendering legal opinions (as juries do) that make it harder for factions to flourish, and to encourage processes of nullification and secession when confronted with judicial activism.

The law, it seems to me, is one thing that must remain public (side note: the origins of the word "republic" come from Latin concepts of "public thing" or "public matter").

That said, I am increasingly sympathetic to the possibility that the anarchists may be correct. It may be practically impossible to restrain the State's hunger for power. And to be sure, minarchist designs have not been durable throughout history.

Of course, anarchical designs have been less durable yet.

Climate Gestapo

And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song
--The Who

Another aspect of DOJ lawlessness has been agency attempts to use law enforcement resources to stifle debate on global warming, a.k.a. climate change. In particular, energy companies such as Exxon (XOM) have been threatened with legal action for issuing statements that oppose the Obama administrations energy agenda.

Such action, of course, is a blatant violation of the First Amendment.

Now, five senators have written AG Loretta Lynch and demanded termination of all related DOJ activities. They also want an explanation of what steps the DOJ will take to prevent the infringement of the rights of US citizens who disagree with prevailing climate change orthodoxy.

My sense is that the louder and more visible this pushback becomes, the worse its gets for the administration and the Democratic Party in an election year.

no positions

Presidential Nullification

And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song
--The Who

Nullification is usually defined in the context of states refusing to enforce what are perceived to be bad laws passed by the federal government. In this context, nullification can be seen as an expression of distrust in government and as a mechanism for coping with oppressive rule. 

More broadly, nullifaction can be seen as overt refusal to enforce law by an institutional entity. States can refuse to enforce a law. So could branches of the federal government.

Currenly, President Obama is preparing an executive order that would effectively nullify federal immigation law. Similar to Judge Nap, I can sympathize with this action to some degree. Under natural law, people should be free to travel where they wish--provided that they do not infringe on someone else's property rights.

However, under current our current system, open immigration policy in the US would infringe on the property rights of others. This is because immigrants could tap various social welfare programs funded by property taken from some people by force. Immigrants who partake in those services are party to robbery.

A president who selectively enforces federal law also portrays himself as a discretionary ruler who dictates legality by fiat--someone who believes in the rule by authority instead of rule of law and who thinks that he is above the law.

Finally, a president who nullifies federal law violates his oath of office. He essentially condones lawlessness. When someone else, be it another government official or Everyday Citizen, breaks a law, the president cannot complain or seek to prosecute.

Because he has done the same thing himself.

Executive Power

"And, when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?"
--Sir Thomas More (A Man for All Seasons)

Part of the post-election hysteria engulfing the Left can be interpreted as fear of the power that Donald Trump will be able to wield as president. Such a threat is very real. And, as Glenn Greenwald observes, the vast power that the president currently holds is something that the Left has facilitated.

As administrations before him have done, President Obama has extended his authority far beyond its constitutional limits. While they complained about executive overreach when President Bush was in office, Democrats were fine with such lawlessness when their party held the office.

As these pages have warned, when discretionary rule replaces rule of law, sooner or later you will be in trouble when your guy is replaced by someone with a different view of the world.

Trump's Wall

'Cause somehow I can't believe that anything should happen
I know we're right below and nothing's gonna happen
--Tal Bachman

Building a two thousand mile long wall along the border between the United States and Mexico to discourage illegal immigration was a central plank in Donald Trump's campaign platform. As president, he has already signed an executive order to move forward on the plan.

He has stated that he wants Mexico to pay for Trump's Wall, and yesterday proposed a 20% border tax on goods coming to the US from Mexico to fund the project.

But tariffs are merely sales taxes. And sales taxes are borne directly by buyers of imported goods, not the sellers. If this scheme becomes reality, then it will be Americans who pay for the wall, not Mexicans.

Jacob Hornberger adds a salient point here. A tariff reduces demand for Mexican goods because those goods carry higher prices. That reduced demand will drive marginal Mexican operations out of business. It will also make foreign direct investment in Mexico less attractive. Economic hardship is therefore bound to increase in Mexico.

Worsening economic conditions and more unemployment will motivate more Mexicans to consider crossing the border illegally in search of opportunities. Ironically, then, building Trump's Wall using his proposed funding approach will encourage more Mexicans to circumvent the wall.

Several initiatives seem to make more sense than Trump's Wall. One is for the president to better enforce existing illegal immigration laws on the books--something that President Obama largely ignored. In fact, it can be argued that Obama's lawlessness here has fueled overreaction in the opposite direction.

Another is to reduce the welfare state in the US so that incentives for coming to America to live off the backs of others is reduced.

Finally, and perhaps best, work to encourage economic prosperity in Mexico. The greater the prosperity in Mexico, the less incentive people have to travel thousands of miles from home in search of better standards of living.

What's the best way to encourage that? Free trade and unhampered markets.

Why Hillary Wasn't Indicted

I want to know 
What you're thinking
There are some things you can't hide
--Information Society

Article proposes that primary reason why FBI Director Comey did not indict Hillary Clinton was that subsequent prosecution would have revealed former President Obama knowingly participated in the unsecured information exchange and then could be implicated in the coverup.

Here's hoping that the investigation gets to the bottom of the previous administration's lawlessness.

Lawless Special Counsels

"And when the last law was cut down, and the devil turned 'round on you, where would you hide, the laws all being flat?"
--Sir Thomas More (A Man for All Seasons)

Judge Nap notes two of the most glaring problems with the Mueller investigation--and with nearly all 'special counsel' investigations for that matter. One is the FISA warrant charade. By seeking a search warrant via the FISA court, investigators circumvent the Fourth Amendment requirement to produce evidence of probable cause. This is clearly unconstitutional.

The other involves the practice of indicting 'low level' individuals in the investigative food chain--often of trivial crimes unrelated to the investigation--and then offering them leniency in exchange for information that the prosecution can use against 'high level' individuals in the investigative food chain.

This is a form of bribery. You tell us what we want to hear on the witness stand and we'll go easy on you. The courts have granted only prosecutors with the ability to commit such bribery. If a defense counsel offered a gift to a witness in exchange for favorable testimony, that attorney would be indicted.

People tend to look the other way when this lawlessness occurs in pursuit of an enemy. You can bet that those same people will view the process differently when the counsel turns on them and their interests.

Losing IRS Emails

Illusion never changed
Into something real
--Natalie Imbruglia

The Obama administration is pushing its lawlessness to new levels with recent announcements that emails from key bureaucrats involved in the IRS scandal have been...lost.

This administration continues to operate is if it believes that the citizenry is either apathetic or stupid.

DOJ Lawlessness

Highway to the danger zone
Ride into the danger zone
--Kenny Loggins

Judge Nap discusses recent lies of DOJ lawyers in the case of President Obama's illegal plan to make undocumented immigrants US citizens. On several occasions, the lawyers told federal judges that the plan had not yet been implemented when in fact it had. As a consequence, a federal judge ordered the lawyers to take ethics classes, amounted to a mere slap on the wrist.

This DOJ continues to operate above the law as it does the bidding for a lawless administration.

Cover-Up

The times are tough new
Just getting tougher
This whole world is rough
It's just getting rougher
--Bruce Springsteen

It is increasingly clear that the 'Russia collusion' investigation against Donald Trump is nothing more that an attempt to deflect and cover up wrongdoings by Hillary Clinton and the Obama administrations.

Statists were confident that the Clinton email scandal, the Clinton-Russia uranium deal, and associated lawlessness by State and Justice depts would never see the light of day because a Clinton presidential victory in 2016 was a sure thing. When that turned out not to be the case, statists scrambled to construct the Russia collusion narrative to divert attention from their crimes. A complicit media has gladly pushed the story.

In the best case scenario, they hoped (and still hope) that their fabricated narrative, if given enough legitimacy and time, could unseat Trump--and forever bury their wrongdoings in the tomb of the Deep State.

If they can only extend the witch hunt to the mid term elections, then their cover-up wishes will come true.

So goes the thought process.

International Emergency Economic Powers Act

Carol Finnerty: Henry, the President wants to do The Thing.
President Sawyer: Hold on tight!
--White House Down

Dan Mitchell discusses yesterday's presidential tweetstorm that roiled markets once again. In his series of tweets focused on escalating tariff-led trade war with China, President Trump 'ordered' US companies to look for supply chain alternatives outside of China.

"Good luck with that," I muttered when first reading the president's 'order.'

But Dan Mitchell suggests that such an order could be legally valid under the International Emergency Economic Powers Act. Passed by Congress in 1977, the IEEPA delegates extensive power to the president to regulate economic transactions during a state of emergency. It essentially grants the president a blank check to intervene in international economic affairs--a check that presidents have cashed 50+ times since the IEEPA's enactment.

There is question, of course, as to just how far this law extends. But don't doubt that President Trump isn't willing to push the legal limits of the IEEPA. Indeed, he signaled just that late last night:

For all of the Fake News Reporters that don’t have a clue as to what the law is relative to Presidential powers, China, etc., try looking at the Emergency Economic Powers Act of 1977. Case closed!

— Donald J. Trump (@realDonaldTrump) August 24, 2019

These pages have frequently marveled at the willingness of people to cede discretionary power to the executive branch far beyond constitutional intent. When it's you guy in office advancing lawlessness, no problem. You're riding the wave of a friendly ideologue.

But what happens when it's not your guy?