The Emergency Order, Bad Arguments, and Logical Fallacies

Now that President Trump has issued the emergency declaration on the wall, I thought I would reiterate something I said multiple times during the Obama administration: there is no “The President thinks something is really really important but Congress won’t act so the President just gets to do whatever he wants” clause in the constitution. The Veruca Salt standard simply doesn’t exist. While I think the Democrat opposition to the wall is overwrought (and indeed now some have even indicated they want to remove the border barriers that doers exit), President Trump has had ample time to secure additional border wall funding. A changeover in Congressional leadership doesn’t constitute a national emergency.

I wanted to take the bulk of this post to address some of the responses I’ve seen, both in opposition and in defense of this action.

I’ll start with one argument made by opponents of the move that I deem to be overstated. They argue that this will set a precedent for future Democratic presidents to declare national emergencies over, say, climate change and healthcare*. There is a little bit of truth to this – as I said on twitter, each new precedent has a bit of snowball effect. But when looking at the cast of characters which constitutes the current Democratic presidential field, who doesn’t think that one of them will do this anyway? President Obama’s DACA order was arguably even less meritorious than President Trump’s actions here (where exactly was the crisis in not providing legal status to the children of illegal immigrants?), and it was President Obama who uttered his petulant “I’ve got a pen and a phone” threat when he grew frustrated with the constitution’s pesky limitations. If anything, Democrats have grown even more radical, and I don’t think President Trump increases the likelihood of future despotic actions.

* I’ve seen more than a few tweets in recent days about 28 million uninsured Americans being a graver national emergency. But I’m confused: wasn’t Obamacare supposed to solve this problem? I thought Obamacare was a “big fucking deal.” Well if there are still 28 million uninsured, maybe it was really nothing more than a “little useless clusterfuck.”

The flipside of the above is the argument from defenders of the administration is that we already have precedent, so Donald Trump’s actions are not unprecedented. Again, there’s an element of truth here, but that doesn’t make right-wing defenders of the president any less hypocritical. If you were (rightly) crying bloody murder every time President Obama used his pen and picked up his phone, you cannot now defend President Trump doing the same. If the “but daddy I want it” justification for emergency declarations is pathetic, even worse is the “but mommy he did it first” defense of the declaration. Speaking of setting precedents, you now have sent a clear message that the right-side of the political spectrum is cool with unilateral, unconstitutional, and unlawful presidential declarations so long as the end-result is fine by you. That seemingly less than about ten percent of the American public consistently even cares about constitutional law is indeed depressing.

As for the unlawful part of this, defenders say that “hey, Congress set us on this path, and the president is just doing what’s in his legal authority.” I’m not one to shy away from blasting Congress for cowering in fear to assert its rights as the superior  branch of the federal government, but I am not persuaded that the president is acting within the very generous parameters laid out by Congress. As David French explains in National Review, this is an abuse of the statutory authority given away by Congress.

Look at the list carefully. He’s listing criminal challenges. He’s listing humanitarian challenges. He’s listing the problems on the border that have existed for decades and that Congress has enacted comprehensive statutory schemes (including funding civilian wall construction and civilianimmigration authorities) to combat. Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war. The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter — such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Instead, the declaration cites the wasteful 2018 border deployment, but that is only evidence that the military has been used, not that it must be used. If the mere fact of a deployment were proof of the necessity of military intervention, then there would be no limiting principle on a president’s action. The message is clear — the military is “required” simply because he says it is required.

I was called a “neocon” on Twitter for having the temerity to argue that the president has no constitutional or statutory authority to justify issuing this emergency declaration. It is a sign of the lack of intellectual heft of much of the populist right that they believe defending constitutional norms is a sign of “new” conservative thinking.

I guess I could just sit back and laugh when President Harris issues a presidential emergency declaration shutting down the health insurance industry and forcing all Americans onto Medicare. It could be humorous to see the contortions of the overwhelming majority of Americans suddenly switching their opinions on such declarations. Instead I’ll just weep as our constitution becomes all but a dead letter.

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Thanks, Maxine

I mean if stunts like this are effective, why not keep repeating them?

Republican Maryland Rep. Andy Harris was reportedly assaulted by protesters inside of his office on Capitol Hill on Tuesday.

According to Jennifer Bendery, a reporter for The Huffington Post, the Capitol Police confirmed that protesters pushed in the door to Harris’ office and assaulted the congressman.

“Harris was trying to hold his office door closed but was not successful,” Bendery tweeted. “Also the demonstrators were smoking weed.”

Wait, they were smoking weed? Isn’t weed supposed to make you mellow?

Sadly, we’re almost certain to see more of this.

Update: Turns out they may be pro marijuana protesters.

 

https://platform.twitter.com/widgets.js

Again, pot is supposed to make you mellow.

The Kavanaugh confirmation circus has amped up tensions, but this is a good reminder that we reached a fevered state long before the Kavanaugh nomination.

Orval Faubus Comes to California

Though certainly not nearly a sentiment shared by most conservatives, some have suggested that the proper response to judicial overreach is to simply ignore the courts. In other words, for example, Donald Trump should have made like Andrew Jackson when his travel ban was put on hold and declared that “The Ninth Circuit has made its decision, let them enforce it.”*

More popular on the right – though again, not necessarily a majority opinion – is the concept of nullification. According to this theory, states are within their constitutional rights to ignore federal law that is facially unconstitutional. Thomas Jefferson justified this concept in his draft of the Kentucky Resolutions  (in response to the alien and sedition acts), though Madison did not go so far in the Virginia Resolutions.

Both sentiments are put forward as proof as the recklessness of the right. Furthermore, the intransigence of certain states righters is historically symbolized by the likes of Orval Fauvus, who defied the Supreme Court’s order to desegregate public schools. Thus these concepts are tied with the forces of evil and racism.

So which state is actively engaged in both nullification and defiance of court orders? Alabama? Mississippi? Texas? Look away, look away, look away, it’s California.

That’s right. Not only is California acting in de facto nullification by prohibiting all local governments from cooperating with federal officials to uphold immigration law, the state is now ignoring a court order barring the state from enforcing this statute upon charter cities who refuse to be sanctuary cities.

Despite an Orange County judge’s ruling this week that California’s so-called sanctuary protections for immigrants who are in the country illegally are unconstitutional as they apply to charter cities, state Atty. Gen. Xavier Becerra said Friday that the state would continue to uphold its laws.

“Preserving the safety and constitutional rights of all our people is a statewide imperative which cannot be undermined by contrary local rules,” Becerra said in a statement. “We will continue working to ensure that our values and laws like the California Values Act are upheld throughout our state.”

SB 54 is the law in question here, and I don’t see how it can be viewed as anything but nullification. In essence, California is saying it will not comply with federal law. Or, to put it a bit differently, it will refuse to cooperate with enforcement of federal law. Not only that, but it has prohibited municipalities from even thinking of cooperation.

More troubling, though, is the state’s ostentatious “eff you” to the ruling issued last week exempting charter cities in the state from the law. Not only will the state refuse to comply with the feds, it’s bluntly saying that no court will make it respect the will of resident in any locality which chooses not to participate in California’s defiance.

Most Californians vociferously denounce the supposed tyranny of President Trump, yet he has done nothing even remotely as brazen as this.

I must also chuckle at Becerra go on about “preserving” the “constitutional rights” of all Californians. So the constitutional rights of illegal aliens must be upheld, even though they possess no such rights. As for the lawful citizens of their state, such constitutional guarantees as the right to a republican form of government can safely be ignored.

And people wonder why much of the country looks upon California with disdain.

*It is not certain Andrew Jackson actually said this famous quote about Marshall, but the sentiment was a historical fact.

Random Observations

– One of the talking points going around is that Brett Kavanaugh is acting “entitled” to a SCOTUS seat, because showing emotion about being accused of a sex crime is assuredly a signal of one’s entitlement. These very same people have talked about the Merrick Garland “seat” as though President Obama’s mere nomination meant Garland was entitled to the seat.

– Speaking of double standards, the Catholic left is lining up against Kavanaugh. America Magazine has urged he be  voted down, shocking no one exactly. Meanwhile detective Steven Greydanus and Dr. Watson, err Mark Shea crack the code of Kavanaugh’s high school yearbook and thus conclude that he is guilty beyond a reasonable doubt. Shea is of course one of the members of the papal online guard who resort to ad hominem attacks anytime the current pontiff is alleged to have gone soft on clerics guilty of abuse. And of course these claims contain much more corroboration than those against Kavanaugh. But Shea, nevertheless, is on the lookout to tamp down those unreasonable Christianists. (I should emphasize here why I noted my Catholicism in my initial post. This internecine warfare is another topic I will be sure to deal with in the future.)

– Yale law students are certainly free to take time off to protest, but I do hope none of those protesting wearing “Believe All Women” shirts, or shirts with slogans to that effect, ever work in a public defender’s office. Similarly, I do hope all those other online warriors who have expressed similar opinions are never assigned to a jury on a rape case.

Power Politics

There is a political party in America where a not inconsiderable number of its members evidently believe that the FBI is staffed by infallible men who have superhuman like abilities to discover the truth of accusations, even into areas over which they have no jurisdiction, and who also implicitly think that any man accused of rape is guilty until proven innocent.

The new law and order party: the Democrats of 2018.

Let me tackle the somewhat less serious issue first. The mantra, repeated endlessly for the past two weeks, is all we need to do to get to the bottom of the allegations against Brett Kavanaugh is have the FBI investigate. Nevermind that the allegations do not involve a federal crime, or that Kavanaugh has been investigated (so to speak) multiple times by the FBI due to the positions he has held or has been nominated for. No, that’s not enough. Only the FBI has the authority and skills to determine the truth.

AG Conservative explains why this is all a load of bunk better than I can. Long story short, Congress is itself an investigative body. An FBI investigation will yield nothing that has not already been revealed. This is nothing more than a delaying tactic, but it’s a farce we’ll have to endure for another week to satisfy the man from Arizona with the spine of jell-o.

As for the #BelieveSurvivors contingent, this is a bit more delicate. Women who bring forward rape allegations should not be ceremoniously disregarded or mocked (though the allegations brought to light by porn lawyer Michael Avenatti are so bizarre they may merit being disregarded out of hand). A woman should not be made to feel like her life is threatened were she to bring forward an allegation or charge.

But the idea that all women should be entirely believed automatically is another. Of course, the logical corollary to “the accuser should be believed” is not necessarily “the accused is therefore guilty.” Even if one believes some kind of attack happened to the accuser, there could be any number of lapses in memory that mean the accused is not the guilty party. Leaving that aside, though, in today’s world “believe the accuser” is de facto “assume the accused is guilty.” And that is grossly unfair both as a matter of law and social construct.

One of the more repugnant critiques of any attempt at defending Kavanaugh is to say that this is merely a “job interview,” not a trial. Once again, the aforementioned AG Conservative is a good source for rebuttals to this argument. Of course Kavanaugh is not entitled to the Supreme Court seat, nor is the bar as high in assessing his guilt or innocence as high as it would be if he were on trial. But that does not mean the burden of proof is flipped and the presumption of guilt hold sway until he somehow prove his innocence beyond a reasonable doubt.

For Brett Kavanaugh, more than just a job is at stake. His reputation has already been sullied, and if his nomination were to be withdrawn “just to save face,” the presumption of guilt will linger for the rest of his life. Indeed, for millions he is already assumed to be guilty, but that is their problem. It is not right to have a man be considered an attempted rapist just because of the existence of the accusation. And if you think that all the other facts of his life make this a consideration not worth keeping in mind, then I would like to see how you treat a false accusation leveled against you.

Another issue with this presumption of guilt (or automatic belief in the veracity of the accuser’s claim) is that is has put sexual assault crimes in a special category. If Brett Kavanaugh had been alleged to have gotten drunk and assaulted one of his classmates, I don’t think we’d be seeing a “believe the man” campaign. Even granting that sexual assault or rape are much more traumatic for the victims and meriting of special scorn (and I do grant that), that does not mean all the rules of due process fly out the window only for crimes of a sexual nature.

Over the past few months I have been listening to the Constitutionally Speaking podcast, and it’s made me look more closely at the ratification debates. The lack of a guarantee of jury trials in civil cases, and the lack of a bill of rights including a due process guarantee are among the most important causes of opposition to the constitution. This recognition of the vital importance of due process is not just some legal mumbo jumbo applicable solely to defendants at court. It is a reflection of the importance our society places on fair play. Indeed our country’s abandonment of that principle with regards to certain segments of society is rightfully seen as one of the primary blots on our nation’s history. Funny that the people who are quickest to condemn our country’s past for failing to live up to this ideal are the ones loudest in their condemnation of Kavanaugh.

For too long conservatives have been too quick to believe men in badges, and have also tended to be the quickest in assuming the defendant in a trial is guilty before all the evidence comes in. That has been changing over the past few years, at least in certain conservative circles. More conservatives are coming to appreciate the importance of respecting the rights of the accused – and even the condemned, at least when it comes to conservative embrace of prison reform. Most conservatives (though sadly not enough) rightly were outraged at the murders of Philando Castile and Botham Jean, and though we may debate some of the elements of #BlackLivesMatter, there’s a growing appreciation of the extreme fallibility of men and women of the law.

So that makes these recent developments all the more chilling. The left is becoming more comfortable with goon-like tactics while abandoning the concept of due process.

I think there’s a name for that.

 

 

The Radicalization of a Conservative

I stands what I can stands and I can’t stands no more – Popeye

If you think kicking off the initial post of this blog with a quote from Popeye is an indication of a lack of seriousness on my part, I will encourage you now to go ahead and peruse social media. Check out the accounts of our elected officials. Look at the profiles of “mainstream” media “reporters.” Go ahead, I’ll wait.

Now then, doesn’t Popeye seem like a sage in comparison to the drek you just read?

Let me state up front who I am. I am a politically conservative Roman Catholic of a certain age. I strenuously opposed the nomination of Donald Trump, and did not vote for him in the general election. For technical and logistical reasons I do not call myself a “Never Trumper.” I have not become a fan of Donald Trump, though I support and appreciate many of his policy goals and initiatives, none the least of which are his judicial selections – but more on that in a second. A lifelong Republican, I changed to Independent days before the 2016 Republican convention. This November I intended to vote only to reelect my governor, and then leave all other offices on the ballot blank.

After what I witnessed yesterday, and have been witnessing for the past two weeks, I will be voting straight line Republican in November. Moreover, I will not be sitting on the sidelines anymore as the left – and yes, the American left does merit most of the blame for the circus our republic has become – becomes committed to acquiring power at all costs.

This does not mean I have become a “Trumpist,” nor will I become (I hope) a blind Republican partisan stooge. It does mean that recent events have, for lack of a better term, “radicalized” me. No, you don’t have to alert homeland security. The greatest extent my radicalization will take is writing angry screeds on the internet. But make no mistake: I am angry, or at least I am angry about what our politics have become.

I intend not just to write about current events. As the blog title indicates, history is important to me, and will endeavor to write historically-informed posts. The next few posts, however, will focus on the Kavanaugh confirmation hearings, and the disgusting treatment he received from Democrats on the committee, as well as what public reaction to those hearings has revealed about the mindset of the American left.