Compiled by Lisa Phillips of OpDeepState.com
Updated September 24, 2018
Trump’s Two SCOTUS Picks Also Went to High School Together
Georgetown Prep could soon control two-ninths of the Supreme Court
Written by Brittany Shepherd | Published on July 9, 2018
No matter what it means for the fate of the nation, Donald Trump’s latest judicial pick has made a more prosaic variety of history, too: If DC circuit judge Brett Kavanaugh were to join the court, it would be an astounding case of a jurist sharing a bench with someone he went to high school with. Both Kavanaugh and Neil Gorsuch attended Rockville’s Georgetown Preparatory School at the same time during the 1980s. They graduated in ’83 and ’85, respectively.
“Judge Kavanaugh has impeccable credentials and a proven commitment to equal justice under the law. He is a brilliant jurist […] universally regarded as one of the finest and sharpest legal minds of our times,” Trump said at the White House Monday evening.
Occupying two-ninths of the highest court in the nation would represent quite a feat for Prep, the Rockville Pike all-boys school that was founded as a feeder to Georgetown University. The school’s mission, according to its website, “is to form men of competence, conscience, commitment and compassion; men of faith and men for others.”
Still, there’s no evidence the two jurists ran in the same circles. While Gorsuch joked about forming a “Fascism Forever Club” at the school, Kavanaugh was a cornerback and wide receiver for the school’s varsity football team and served as captain of the school’s basketball team. A school staff member confirmed to Washingtonian that Kavanaugh was a staff member of the Little Hoya, the high school’s newspaper. Representatives of the Little Hoya were not immediately able to share clips from his glory days.
Supreme Court officials tell Washingtonian that they are unaware of this phenomenon ever happening before. An additional Trump appointee, current chair of the Federal Reserve Jerome Powell, is also a Prep grad.
The pair would join the ranks of other notable alumni including comedian Mo Rocca, Yankees GM Brian Cashman, and celebrity restaurateur David Chang.
Kavanaugh also attended Mater Dei, an all-boys Catholic elementary school in Bethesda.
The Talmudic influence of the Supreme Court: Supreme Court Rules Islam BANNED In Public Schools – New Trump Administration Appointee Gorsuch Made The Difference With This HUGE Move…
Updated September 20, 2018
A quick summary of President Trump’s choice of Brett Kavanaugh for Supreme Court Justice, and his religious gnostic cults. All the data points in the direction that President Trump and Brett Kavanuagh are Freemasons.
Published (mirrored) on July 9, 2018 courtesy of Edifying Others Youtube channel.
Published (mirrored) on September 15, 2015 courtesy of rfeeles1 Youtube channel.
See also: Jesuit Order Rules the World
Updated September 19, 2018
Judge Andrew Napolitano: Brett Kavanaugh and the Patriot Act
The Constitution represented a coup from the beginning, and it’s a dead letter today. The Declaration of Independence, however, is a truly radical libertarian document still worthy of consideration. Judge Andrew Napolitiano, our Distinguished Scholar in Law and Jurisprudence, recently gave a rousing talk at Mises University on the Declaration’s natural law tradition–and how federal courts relentlessly and successfully attacked the principles it represented. This is Judge Nap at his scorching best, and you won’t want to miss his comments on Supreme Court nominee Brett Kavanaugh, because Kavanaugh supports the Patriot Act.
Published (mirrored) on September 4, 2018 courtesy of misesmedia Youtube channel.
Updated July 16, 2018
The Disturbing Reasoning of Judge Brett Kavanaugh
by Martin Armstrong
QUESTION: What is your opinion of Trump’s Supreme Court pick?
ANSWER: The main decision that I believe allows us to pierce the veil of judicial reasoning is Susan SEVEN-SKY v. Eric H. HOLDER, 661 F.3d 1 (2011). In this decision, Judge Brett Kavanaugh did not join Silberman’s opinion. Instead, he wrote a sixty-five-page opinion that argued that the court could not even decide this case. In other words, his dissenting opinion deliberately did not resolve the case on the merits. What is more disturbing is his reliance on an 1876 law that has effectively placed government rights above that of the people. This I find VERY disturbing.
Judge Kavanaugh’s opinion was based on the 1876 law called the Anti-Injunction Act (AIA) that applied to the tax code, which I would argue is unconstitutional on its face. A court cannot raise arguments not raised by the parties, but it has a duty to first determine if the court has the jurisdiction to hear the case. It was down this path that Kavanaugh took a stroll which is rather disturbing for his conclusions. The government did not rely on this provision of the tax code with respect to jurisdiction. Few people ever heard of it. It appears he search the universe to find something that he could use to justify no making a decision of the merits.
The purpose of the Anti-Injunction Act was to prevent taxpayers from challenging a tax in court before it is assessed. In other words, a citizen must first pay a tax under protest and then challenge it after the fact by seeking a refund, which presumes you even have the money to hire lawyers to TRY to get your money back. This effectively alters the entire legal system. You are entitled under EQUITY to seek an injunction to PREVENT a harm. Under this 1876 Anti-Injunction Act (AIA), the government gets to do whatever it wants and it can freeze all your assets and win by sheer oppression.
An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court. Trust me, they can imprison you until you die for daring to challenge an abusive application of a tax. Congress can simply pass a tax saying anyone who has 3 children is promoting Global Warming and must pay 85% of all income as a tax for environmental compensation. Under the obscure 1876 Act, you can be imprisoned for life using contempt for even opposing the tax. That is not a free society!
The Constitution under Article III created the courts and gave them the power under “law and equity” under Section 2. Consequently, Congress cannot pass any law that would negate the Constitution. Therefore, you have a CONSTITUTIONAL RIGHT to injunctive relief to PREVENT a harm. That is the entire purpose of EQUITY, to seek relief from the LAW when it is unreasonable. If the government seizes all your property under some tax statute, the 1876 Anti-Injunction Act (AIA) would then prevent you from hiring a lawyer, and in effect, you will be denied any redress in a court of law until AFTER they take all your money if you have anything left to hire lawyers.
Therefore, I would bluntly disagree with Kavanaugh’s dissenting opinion. This is so pro-government and anti-human rights no less unconstitutional, it does not reflect a country a reasonable person would want to live. Because it was a dissent and not the majority of the court, then it did not take any effect. My concern is his willingness to allow Congress to circumvent the Constitution. If this statute was actually in play, I would argue it is patently unconstitutional for it would deny the application for equitable relief and overrule Article III.
US Constitution Article III
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Updated July 12, 2018
If you’ve been following the work of former US Army Counter-terrorism financial analyst Scott Bennett, you will recognize the law firm Covington & Burling. It’s also important to note that the US Justice Department is controlled by INTERPOL.
July 11, 2018
Why Former Sen. Jon Kyl Got Tapped to Guide Brett Kavanaugh
Supreme Court nominees need an experienced ‘sherpa’ to navigate the Senate’s unique ways
White House Counsel Don McGahn, right, and former Sen. Jon Kyl, R-Ariz., arrive at the Capitol on Tuesday as they escort Supreme Court nominee Brett Kavanaugh and Vice President Mike Pence to meetings with senators. (Tom Williams/CQ Roll Call)
He spent 18 years as a senator on the Judiciary Committee, the last six as the Republican whip and No. 2 in leadership. Now his lobbying clients include a group already spending millions to push the federal courts hard right. His big gig on the side is rooting out perceived liberal bias on social media.
If Jon Kyl does not have the ideal background for successfully shepherding a Supreme Court nominee through this Senate, perhaps no one does.
One question is how much any single supporting player — even someone with his depth of experience and breadth of network — can do to influence what’s poised to become the most intense, expensive, consequential and nationally galvanizing confirmation battle in decades.
Part of the answer lies in defining expectations for the “chief sherpa,” the universally adopted but totally informal title for the volunteer job Kyl has signed on to for the next several months. Like the Tibetans who assist climbers up the bewildering and onerous topography of the Himalayas, a confirmation sherpa is supposed to maximize a nominee’s prospects for successfully navigating the confounding and wearisome passage through the Capitol.
Brett Kavanaugh knows one version of the drill, having endured almost three years of senatorial delay and dispute before securing confirmation in 2006 to his current position, as a judge on the U.S. Court of Appeals for the D.C. Circuit.
But the polarized partisanship of the Senate has intensified substantially in the past dozen years, no more so than in the judicial wars. And fights over Supreme Court seats are far more fierce and multifaceted than struggles for spots on the lower courts.
The judicial demeanor Kavanaugh has developed at the D.C. federal courthouse, and the political acumen he honed before that as a senior White House official, may need to be tweaked for the unique nature of the contentious campaign ahead in the Capitol.
So his memories of earlier courtesy calls in the offices of ambivalent or even hostile senators, and hours parrying questions in the Judiciary Committee, can certainly stand to be refreshed and updated by an experienced guide — someone adept at managing campaigns that eliminate potential pitfalls and capitalize on all opportunities.
Kyl certainly seems to fit the bill, and can also act as advance man and media messenger for a nominee who’s expected to say nothing at all in front of the cameras during his visits with individual senators, and not much that’s headline-worthy at his hearing.
By that point, Kyl will have tried to tap his old information channels at the Capitol to learn about the most provocative and surprising things Kavanaugh’s critics have discovered in his expansive paper trail. And — after coordinating with people in the White House offices of legislative affairs, legal affairs, general counsel and public liaison — he will have arranged for Kavanaugh to be interrogated on all sorts of “gotcha” questions at mock confirmation hearings known as “murder boards.” (The judge will be coached on all manner of protocol for such proceedings, from how to start every answer with the word “senator” to how often to request a visit to the men’s room.)
Also Watch: Ryan Defends Jordan as ‘Man of Honesty and of Integrity’
This will be the third sherpa assignment for Kyl, 76, a premier Washington rainmaker at the white-shoe law and lobbying firm Covington & Burling since 2013, when his retirement took effect after three terms as a senator from Arizona. He prepared Seattle hotelier Gordon Sondland, confirmed last month as ambassador to the European Union, for his Senate Foreign Relations hearing. And he helped manage the attorney general confirmation of Jeff Sessions, his longtime colleague on the GOP side of the Judiciary panel.
Kyl is part of a lengthening roster of prominent former GOP senators who have taken the Supreme Court lead sherpa role. A few months after losing re-election in New Hampshire, Kelly Ayotte escorted Neil Gorsuch on visits with more than 70 senators before his confirmation last year. Indiana’s Dan Coats, now director of national intelligence, was the top guide for Samuel A. Alito Jr. and Tennessee’s Fred Thompson took on the role for John G. Roberts Jr.
For Kyl, the assignment began Monday night in the East Room, when he took the seat next to Judiciary Chairman Charles E. Grassley of Iowa just before President Donald Trump announced who Kyl’s “client” would be for the next several months. He was at Kavanaugh’s side a few hours later (along with Vice President Mike Pence) when the newly minted nominee arrived at the Capitol on Tuesday for his first choreographed Senate visit, with Majority Leader Mitch McConnell.
By that time, one of Kyl’s lobbying clients, the conservative Judicial Crisis Network, had unveiled a 30-second TV spot touting Kavanaugh’s biography and a $1.4 million initial advertising buy in the home states of four centrist Democrats seen as potential votes for confirmation: Joe Manchin III of West Virginia, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Doug Jones of Alabama.
The group had spent almost 10 times as much to lobby for Gorsuch’s confirmation, including $215,000 to Covington & Burling when Kyl was assigned to work the Senate corridors on the network’s behalf.
In May, he was hired to pursue another cause dear to the right — exposing signs of left-leaning political bias at influential media organizations. Weeks after founder Mark Zuckerberg testified before an often hostile GOP Congress, Facebook brought Kyl aboard as an adviser to examine claims that the social media behemoth discriminates against the right.
The son also rises
Kyl has been studying the Hill’s evolving culture since he was a teenager, because his father John H. Kyl spent more than a decade starting in 1959 as a Republican congressman from Iowa.
But the younger Kyl moved to Arizona and decided to make his life there, practicing law in Phoenix and running the city’s Chamber of Commerce before winning an open House seat in 1986. He won an open Senate seat eight years later.
By the end of his Senate run, Kyl was regarded as a brainy player on a broad array of issues — from foreign policy and weapons systems to taxes and immigration — whose persuasiveness behind closed doors could shape a consensus position within an ideologically factionalized caucus. In public, meanwhile, his lawyerly focus on policy and an ability to avoid making controversial statements got him tapped as the leadership’s regular spokesman on cable news and Sunday talk shows.
“I have made an effort not to be partisan in an in-your-face sense,” he once said. “Ordinarily, I don’t talk about Republicans and Democrats. I talk about ideas.”
During his tenure, five Supreme Court nominations came to the Hill. He voted against both of President Barack Obama’s picks, Elena Kagan and Sonia Sotomayor, and before that his open ambivalence helped doom Harriet Miers, the George W. Bush choice who withdrew after too many conservatives damned her with the faintest praise.
And he once led conservative opposition to an appeals court candidate championed by several influential Senate GOP colleagues, including fellow Republican leader Lamar Alexander of Tennessee, on the grounds the nominee had expressed a willingness to consider foreign laws, not just the U.S. Constitution, in deciding cases.
Which is worse: An unelected judge opining on how a mandate to purchase a product could meet constitutional muster, or giving Congress instructions on how to ensure it will? Kavanaugh did both.
July 2, 2018
In a 2015 dissent to an Obamacare case, Supreme Court Justice Antonin Scalia famously opined that the court had concluded “that this limitation would prevent the rest of [Obamacare] from working as well as hoped. So it rewrites the law.… We should start calling this law SCOTUScare.”
Last week’s retirement announcement from Justice Anthony Kennedy, coupled with news placing Brett Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia, high on President Trump’s list to replace Kennedy, has drawn attention back to the legal wrangling over the law. Some observers have claimed that Kavanaugh, in a 2011 opinion written when the D.C. Circuit considered Obamacare’s constitutionality, supported the law’s individual mandate.
As in many other cases, however, the truth contains more nuance than that simple declaration. Even as he avoided a definitive ruling on the merits of the case, Kavanaugh revealed himself as favorably disposed to the mandate. Worst of all, in so doing, he cultivated a theory that ultimately led Chief Justice John Roberts to uphold the mandate.
Extended Discussion of the Anti-Injunction Act
Most of Kavanaugh’s opinion discusses interpretations of statute that hardly qualify as an enlightening discourse of constitutional principles. Whereas his two circuit court colleagues upheld the mandate as a valid exercise of Congress’ power under the Constitution’s Commerce Clause, Kavanaugh “dissent[ed] as to jurisdiction and [did] not decide the merits.”
Kavanaugh’s dissent arose from his belief that the 1867 Anti-Injunction Act precluded the court from deciding the merits of the individual mandate. The Anti-Injunction Act prevents individuals from challenging the validity of taxes in court until after they have paid them, which if applied to Obamacare’s mandate (which took effect in 2014) meant that a court challenge would not ripen until individuals had paid the mandate penalty on their taxes—i.e., in spring 2015, or nearly four years after the D.C. Circuit ruling.
Kavanaugh spends the better part of 50 pages—longer than the majority opinion justifying the mandate as constitutional—analyzing the Internal Revenue Code, and the Anti-Injunction Act, to support his belief that the mandate qualified as a tax under the act, forestalling any legal or constitutional challenge until after individuals had paid it. He cautions “the reader that some of the following is not for the faint of heart”—a true enough warning, as much of the opinion devolves into tedium that only a tax lawyer could love.
The Supreme Court ultimately disagreed with Kavanaugh’s Anti-Injunction Act analysis. In 2012, Roberts ruled that Obamacare’s individual mandate functioned as a penalty for purposes of the Anti-Injunction Act—meaning the act did not apply, and the court could proceed to decide the merits of the underlying case—even as he concluded that the mandate functioned as a tax for purposes of determining its constitutionality.
While Roberts disagreed with Kavanaugh’s reasoning about applying the Anti-Injunction Act to the Obamacare mandate, such differences over the interpretation of a 150-year-old statute hardly rise to the level of disqualifying for a potential Supreme Court nominee.
A Bit of Judicial Restraint…
Indeed, three-quarters of Kavanaugh’s ruling provides a worthy defense of judicial restraint—judges avoiding decisions on weighty questions wherever possible. He argues that courts should defer to Congress, which enacted the Anti-Injunction Act in the first place:
The jurisdictional status of the Anti-Injunction Act reflects the Constitution’s separation of powers in operation. Under the Constitution, Congress possesses the power to tax and spend, as well as the power of the purse over appropriations of money. Congress zealously guards those prerogatives. Here, Congress has not afforded discretion to the Executive Branch to waive or forfeit the Anti-Injunction Act’s bar with respect to the assessment and collection of taxes. Rather, by making the Anti-Injunction Act jurisdictional, Congress has commanded courts to abide by the Act even when the Executive Branch might not assert it.
He also disregards efforts by the Obama administration, in attempts to provide policy certainty regarding Obamacare, encouraging the courts to decide the merits of the individual mandate before it took effect, rather than invoking the Anti-Injunction Act to bar the suits until 2015:
We must adhere to the statutory constraints on our jurisdiction no matter how much the parties might want us to jump the jurisdictional rails and decide this case now….By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.
After all this discussion of judicial restraint, however, Kavanaugh then spends the last quarter of his opinion “jump[ing] the jurisdictional rails” and opining on the “constitutional questions” that he said courts should not “prematurely” decide.
…Followed by Judicial Activism
The last section of Kavanaugh’s opinion explains why he believes the courts should not decide the constitutionality of the individual mandate: “this case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’ Taxing Clause power.”
In Kavanaugh’s view, the mandate could fit “comfortably” within Congress’ constitutional powers. Even as he “do[es] not take a position her on whether the statute as currently written is justifiable,” Kavanaugh concludes that “the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight” (emphasis in the original).
Several pages thereafter, Kavanaugh continues to answer a question nobody asked him, giving the legislature instructions on how to remedy the in-his-view minor constitutional infirmity:
This discussion about the potential problem with the Government’s Taxing Clause argument also shows how easily Congress could eliminate any such potential problem. For example, Congress might keep the current statutory language and payment amounts and simply add a provision as basic as: “The taxpayer has a lawful choice either to maintain health insurance or make the payment to the IRS required by Section 5000A(a)-(c).” Or Congress might retain the exactions and payment amounts as they are but eliminate the legal mandate language in Section 5000A, instead providing something to the effect of: “An applicable individual without minimum essential coverage must make a payment to the IRS on his or her tax return in the amounts listed in Section 5000A(c).” Or Congress could adopt the approach from the House-passed bill, which expressly created a tax incentive and plainly satisfied the Taxing Clause.
Any of those options—and others as well—would ensure that this provision operates as a traditional regulatory tax and readily satisfies the Taxing Clause.
Conservatives might argue amongst themselves about which is worse: An unelected judge opining on how a mandate to purchase a product could meet constitutional muster, or that same unelected judge giving Congress instructions on how to ensure it will.
Kavanaugh’s Roadmap to Save Obamacare
Some will note the irony of Kavanaugh’s opinion stating that “no court to reach the merits has accepted the Government’s Taxing Clause argument.” Josh Blackman notes in his book “Unprecedented: The Constitutional Challenge to Obamacare” that Solicitor General Donald Verilli “advanced this very argument”—that severing the mandate to buy health insurance from the tax for not buying health insurance would make the latter constitutional—“at the Supreme Court.”
The gambit worked. Roberts ultimately relied upon that argument from Verilli by way of Kavanaugh to uphold the mandate as a constitutional exercise of the taxing power. That Kavanaugh, like Roberts, used the last few pages of his opinion to decry the “unprecedented” nature of a mandate upheld via the Commerce Clause power does not mitigate his favorable analysis of a mandate upheld via the Taxing Clause power.
Other analysts with more experience in constitutional and legal jurisprudence (and perhaps less experience in health policy) can opine on other parts of Kavanaugh’s record. But his opinion on Obamacare, while starting out with an admirable nod toward judicial restraint, unfortunately veered in an activist direction that gives this conservative serious pause.
Mr. Jacobs is founder and CEO of Juniper Research Group, a policy consulting firm based in Washington. He is on Twitter: @chrisjacobsHC.
For Health Care Freedom, Overturn Wickard v. Filburn
November 10, 2011
by Avik Roy
Over at National Review, (article conveniently scrubbed from the internet) I’ve posted my thoughts on the latest appeals court decision on Obamacare’s individual mandate. Laurence Silberman, the judicial conservative who wrote the majority opinion in the case, Seven-Sky v. Holder, upheld the mandate, because, he argued, the Supreme Court in 1942 opined that Congress has unlimited power to regulate people through the Commerce Clause. “This gets me to a point,” I wrote, “that has gotten too little attention in the coverage of the Obamacare litigation: the central importance of Wickard v. Filburn to the pro-mandate case.”
We are where we are today because of 75 years of tortured jurisprudence on the Commerce Clause. As a reminder, Article I, Section 8 of the Constitution grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” However, thanks to the Supreme Court, the Commerce Clause has been twisted beyond all recognition.
Is a man growing wheat on his own land to feed his own chickens engaging in interstate commerce? Apparently, yes (Wickard v. Filburn, 1942). Is a 12th-grader carrying a concealed .38-caliber revolver to school engaging in interstate commerce? Not necessarily (United States v. Lopez, 1995). Is a woman growing marijuana in her own home, for her own use, engaging in interstate commerce? Apparently, yes (Gonzales v. Raich, 2005). Is a man who declines to purchase health insurance engaging in interstate commerce? Depends on whom you ask.
In September, I wrote that the present case, Seven-Sky v. Holder, could “point the way to the defeat” of the individual mandate, because Judge Brett Kavanaugh laid out a clear, four-point analysis that Judge Silberman didn’t even bother to address in his lazy, 32-page ruling.
But what is clear is that the strongest argument of the pro-mandate forces is, effectively: “Yes, we know that the mandate implies that Congress has unlimited power to run roughshod over individual liberties, but according to Wickard v. Filburn, Congress has that power.”
This was also a key to Judge Jeffrey Sutton’s opinion in the analogous case in the Sixth Circuit. (Sutton, like Silberman, is a favorite of the conservative Federalist Society.) “The lingering intution—shared by most Americans, I suspect—[is] that Congress should not be able to compel citizens to buy products that they do not want.” However, “If, as Wickard shows, Congress could regulate the most self-sufficient of individuals—the American farmer—when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must pay for it.”
Most troubling for opponents of the individual mandate is that the Supreme Court has endorsed Wickard as recently as 2005, in the aforementioned Gonzales v. Raich case, with Antonin Scalia writing a widely-cited opinion concurring with the majority. (Indeed, Judge Silberman cited Scalia’s concurrence in his Obamacare ruling.)
It’s highly unlikely that there exists a majority on the Court today for overturning Wickard. Indeed, it’s unclear if anyone other than Clarence Thomas, the Court’s true originalist, would support such a step. And yet, if conservatives want to restore the proper balance of power between the federal government and the states, the Obamacare legal challenges have made clear that overturning Wickard is the only long-term way to make sure that individual mandates, and similar Congressional laws, are consistently out of bounds. It’s high time for conservatives to make Wickard their true “litmus test” of conservative jurisprudence.
UPDATE 1: The Volokh Conspiracy devotes not one, but six posts to the ruling. Stuart Benjamin thinks that “Silberman’s opinion reads to me like the opinion I would expect from Justice Scalia upholding the act.” Contrarily, Randy Barnett says that Silberman’s opinion is one “that Justice Scalia would never write.” Ilya Somin agrees with Barnett. David Bernstein thinks that the unpopularity of the mandate will play a big role in the Supreme Court’s ultimate decision.
Orin Kerr thinks Silberman’s opinion is “a persuasive reading of existing Supreme Court precedent,” but concedes that “the Justices are not bound by the implications of their prior precedents—or even the precedents themselves.” Separately, he points out that “three leading lights of the Federalist Society,” including Silberman and Kavanaugh in this case and Sutton in the Sixth Circuit case, have refused to strike down the mandate.
UPDATE 2: Bruce Brown in The New Republic says that I’m wrong about Silberman’s reliance on Wickard, and implausibly argues that the D.C. Circuit ruling is actually an originalist reading of the Commerce Clause. Randy Barnett, along with many of the judges ruling against the mandate, has provided the obvious counterargument: if the intention of the Commerce Clause was to give Congress unlimited police powers, why has it taken 214 years for Congress to actually use this “highly attractive power“? As the Eleventh Circuit put it:
The fact that Congress has never before exercised this supposed authority is telling…Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.
UPDATE 3: The Washington Post‘s pleasure at Silberman’s ruling, its editors insist, is “not simply because we agree with this result” but because Silberman put principle before party. I’d be interested in any readers who can find a Post editorial lauding the same thing in a Democratic appointee.
Separation of Powers During the Forty-Fourth Presidency and Beyond
by Brett M. Kavanaugh
Highlights of this document:
A good way to start the discussion is to think about some of the controversies the last two presidents have faced. Both President Bill Clinton and President George W. Bush had tumultuous tenures in office that triggered numerous separation-of-powers controversies.
In President Clinton’s administration, separation of powers disputes arose over:
• War powers, and especially whether the President’s decision to take offensive military action in Kosovo in 1999 was consistent with the Constitution and the War Powers Resolution, particularly after the House failed to authorize the bombing;
• Impeachment, and whether perjury and obstruction of justice in a civil sexual harassment case and subsequent criminal investigation can constitute high crimes and misdemeanors justifying removal of a President;
• The independent counsel law, concerning both the statute itself and independent counsel Kenneth Starr’s exercise of his investigative and prosecutorial authority;
• Executive privilege, primarily whether government attorneys and Secret Service agents enjoy a privilege in federal criminal investigations of the President;
• Presidential immunity, particularly whether the President has the right to a temporary deferral of civil suits while in office, an issue the Supreme Court addressed in Clinton v. Jones;
• The pardon power, most notably whether President Clinton properly used that power when he pardoned certain people at the end of his presidency;
• The President’s control over executive branch personnel, particularly President Clinton’s decision shortly after taking office to fire all ninety-three United States Attorneys in one fell swoop;
• The President’s ability to obtain votes for his federal judicial nominees, as large numbers of Clinton judicial nominees never received an up-or-down vote in the Senate.
That is a significant list. And President Bush’s administration
has sparked its own separation of powers disputes. Some of the most contentious struggles have been over:
• Presidential power and the wars against al Qaeda and later Iraq, most notably the controversies surrounding the detention and treatment of detainees at Guantánamo Bay and elsewhere, and
the Terrorist Surveillance
Brett Kavanaugh: A “Controlled Judge” Who Aided In Cover-up Of Vince Foster Case?
July 10, 2018
by Tim Brown of SonsofLibertyMedia.com
Seriously, I don’t know why the professed conservative party would not put forward its most conservative nominee for the Supreme Court to replace Anthony Kennedy, but this is how it goes. They talk a good game and then they let you down. This is the case with Brett Kavanaugh, and if there is one thing that people should remember, it’s that Kavanaugh was the independent assistant attorney (IAA) in charge of the final investigation in the Vince Foster case.
Kavanaugh took over for Miguel Rodriguez who had revealed the Foster case was a homicide. Kavanaugh stated that he would do whatever it took to advance his career but was ordered by three federal judges to keep the witness statements and Rodriguez’ discoveries in the final document.
Both conservative and liberal media outlets have failed to cover the information that was scattered throughout the report even to this day.
The Death of Vincent Foster
By Michael Rivero
Evidence Of A Cover-up
This is the story that nobody dares touch. This is the story that ended my career in Hollywood back in 1994.
Despite having reported the discovery of Dr. Haut’s signed report confirming the existence of a second wound to Vincent Foster’s neck, radio host Rush Limbaugh to this very day refers to Vincent Foster’s death as a suicide.
Even Matt Drudge, when presented with the FBI records proving that the FBI fraudulently manufactured Lisa Foster’s recognition of the gun found at Fort Marcy Park, refused to get involved, opting instead for a story accusing Sidney Blumenthal of domestic violence (for which Drudge was then sued and made famous).
Liberals Are Freaking Out About The Nomination Of Brett Kavanaugh, But It Is Conservatives That Should Be Concerned
July 10, 2018
by Michael Snyder of StateoftheNation2012.com
The weeping, wailing and gnashing of teeth has begun on the left, but the truth is that Donald Trump could have nominated someone far more conservative on Monday night. Over the next several months there will be endless protests in Washington D.C. as liberals moan and groan about “the end of our freedoms”, and Brett Kavanaugh will be relentlessly portrayed as a conservative devil by the mainstream media. And even though NBC News is insisting that Kavanaugh “would make the high court solidly conservative” if he is confirmed, the reality of the matter is that there are some pretty good reasons why conservatives should be deeply concerned about this pick. Just because a Republican president nominates someone to the Supreme Court does not mean that individual will make a good judge. For example, Ronald Reagan nominated Anthony Kennedy in 1987, and he turned out to be a complete and utter disaster. If Reagan had nominated someone different, the entire modern history of the U.S. Supreme Court could have been completely different. With the Court still so divided, the stakes are incredibly high, and we must not get another Kennedy. So it is troubling that Brett Kavanaugh clerked for Kennedy and has always had nothing but good things to say about him. Anyone that would look to Justice Kennedy as any sort of a role model is definitely not fit for a seat on the highest court in the land.
Beyond his connections to Kennedy, what is troubling conservatives more than anything are some of his opinions while serving on the appellate court level.
For instance, not too long ago he ruled that an illegal immigrant “has a right to an abortion in the United States”…
Judge Brett Kavanaugh, who was appointed to the U.S. Court of Appeals for the District of Columbia by President George W. Bush, accepted the assumption in a dissenting opinion he filed last October in the case of Garza v. Hargan that a teenage illegal alien caught at the border and put in detention has a right to an abortion in the United States.
In that opinion he also added that “all parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow.”
Throughout his entire career, Kavanaugh has been extremely engaged in Republican politics, but he has never expressed public opposition to Roe v. Wade a single time.
So despite the outrageous claims of the left that Roe v. Wade “is about to be overturned”, the truth is that we actually have no idea how Brett Kavanaugh would rule on Roe v. Wade, and that is absolutely frightening.
People who falsely believe “Republicans are good” and “Democrats are bad” automatically without doing any critical thinking or analysis need to turn off their tel-lie-vision sets and wake up.
On September 9, 2017 we reported:
“Why on Earth is President Trump’s Justice Department defending Hillary Clinton by keeping information about her well-known corruption secret? Who is running the store at the Justice Department?” asked Judicial Watch President Tom Fitton. “Tax dollars are wasted as the Deep State rolls along in its frantic efforts to protect Hillary Clinton. President Trump should demand to know why his agencies are defending Hillary Clinton.”
Friday’s oral argument is scheduled to be heard by DC Circuit Judges Judith W. Rogers, David S. Tatel and Laurence H. Silberman.
Backroom deals, cover-ups. You do the math.