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Should the Supreme Court Legislate?

The Building Where It Happens (Joe Ravi)

The United States famously has a tripartite system of government. We have three branches of the government: legislature, executive, and judicial. Naturally there are going to be areas of overlap and issues about not overstepping one’s domain and intruding into the realm of another branch. That being said, it is the legislative actions of the Supreme Court that frequently are the most disruptive. Such transgressions are magnified when they touch upon the lives of individual Americans.

There have been three major intrusions into the lives of individual Americans in the 20th century which I wish to address. Two are due to the Supreme Court and one by We the People ourselves. In these examples, we are not dealing with the war in Ukraine, tariffs, or even wages. Instead, the focus is on when daily life is disrupted as result of government action. In all three examples, the intrusion backfired and the law of unexpected consequences kicked in. In one case, we resolved the intrusion and moved on. In the other two cases, the disruptions are unresolved and continue to wreak havoc with the social fabric.

PROHIBITION 

The amendment to the Constitution prohibiting the consumption (sale) of alcohol was a longtime coming. For decades people including female evangelical (Methodists) who could not even vote advocated on behalf of prohibition. The action was both at the state level and the national. Elections could be won or lost based on the candidate’s position on the prohibition of alcohol.

State by state, the prohibition forces prevailed until at last the magic number required for ratification was reached. Then at last and to the great joy and satisfaction of the proponents, prohibition became the law of the land.

Prohibition was a different type of amendment. It was not one asserting a right as so many in the Bill of Rights do. It was not some procedural issue regarding elections. In a sense one could say its precedent was the prohibition against slavery, but even that was a legal condition which could be countered by Jim Crow. Prohibition, as befitting its religious origin was more like the apodictic commandments from Sinai: THOU SHALT NOT DRINK ALCOHOL!

This secular commandment reached right into the homes of every American. It touched the lives of people as individuals. And, of course, it did not work. It did not banish alcoholic consumption from American life. Quite the contrary, it forced it underground. From the stills in the backwoods of the rural South to the speakeasies of the urban North, alcohol did not disappear. One result was the growth of organized crime, aka the Mafia, certainly an unintended consequence.

The failings of the prohibition were readily apparent. The result was a reaction against it with a new amendment that was ratified at warp speed. One lesson to be learned was to be very careful when you muck around with the daily lives of individual Americans. It was a lesson not learned.

SCHOOL BUSING

The Supreme Court failed to heed that lesson. The Supreme Court ruling prohibiting separate-but-equal as a guiding principle for schools continues to affect Americans to this very day. On the one hand, the Court made a judicial ruling about a particular doctrine as being unconstitutional. On the other hand, the Court then mandated a remedy to the situation which actually was a form of legislation. The legislative solution was arrived at without public participation. It did not follow the normal political discourse which would have occurred if the Court had turned to Congress with instructions to write a law reflecting the principles of the judicial decision. Instead it decreed a solution. Are we today where the Court wanted us to be when it legislated the solution nearly 70 years ago?

Obviously not.  There are many powerful and moving stories to tell about the positive impact of desegregation. Remember the Titans. There also have been many unintended consequences of the decision to exploit the most vulnerable people in society, children, to achieve some social objection (The Law of Unintended Consequences: From Abortion to Voter Suppression). Suffice it to say that this attempt at social engineering failed just as Prohibition had only three decades earlier. The United States still pays a price for the dislocations and unraveling of the social fabric wrought but this high-minded and poorly thought out intrusion into the homes of Americans.

The decision also changed the position of the Supreme Court in American society. With prohibition, We the People had inflicted the change on ourselves. Therefore We the People were able to remedy the problem ourselves. With school busing, the decision had been made a group of nine people acting in secret and beyond the direct reach of We the People. Now these unelected people could tell us what we could and could not do right in our own immediate lives. Think of all the ways (white) people since developed to negate the ruling (The Law of Unintended Consequences: From Abortion to Voter Suppression). So much effort, energy, and money that was not used to create quality schools in every community.

The current political controversies on CRT and 1619 follow a longstanding fight on the control of local schools from the teaching or not teaching of evolution to how we teach the Civil War of Northern Aggression. The farther removed from our direct political control the decision makers are, the greater the danger of enraging the individuals effected … and the greater the likelihood of unintended consequences when decisions are not openly arrived at by elected representatives. The Supreme Court battles over national legislation in the 1930s now had become localized. With school busing, you did not need someone to explain to you how you would be effected, you could see with your own eyes.

Think of how different America would be today, if the Supreme Court had legislated that every community had the right to quality schools instead of forcing busing. The Court effectively red-lined school districts. There were areas of substandard housing, substandard schools, inadequate parks, inadequate public pools, inadequate libraries, and on it goes. Think of how teachers and principals in the red-lined districts had their careers short-circuited because they now could be overlooked in the new racist configuration. Think of the local role models for the young which were lost. But the Court knew best and it wreaked havoc with America instead.

ABORTION

With abortion, once again the Supreme Court decided to make it personal. Again, the Court made a decision on a legal principle, this time the previously unknown right to privacy. It then took it upon itself to legislate how that right was to be implemented. Again it did it all by itself without any public discussion. Again it mandated the implementation.

Even if you accept the idea that there is a constitutional right to abortion, it does not automatically follow that the trimester time frame is the one and only way to legislate the application of a solution. When the Supreme Court selected one particular method to implement its decision, it overstepped its bounds. While the Supreme Court may have monopoly power on deciding judicial principles, it has no legislative power to implement such decisions unless there is one and only one way to do so. If multiple options are possible, then the legislative authority defers to Congress. The issue here is not whether or not the Supreme Court is correct about the Constitutionality of the right to abortion, but whether or not it has the right to legislate a solution. The Court can rule on individual cases involving freedom of speech, freedom of the press, freedom of religion, and the right to assemble; it has no right to write the legislation defining those freedoms. That is for Congress to do.

Right now we are experiencing a case study in the shortcomings of secret decisions secretly arrived at. Look at the reaction to the leaked Alito draft. The responses to it demonstrate the kind of political discussion which can occur when matters are publicly deliberated. Will people be tried for murder? Will people be tried as accessories to murder? Will pregnant women at airports be tracked for their pregnancy when they return? What other presumed rights will be affected? No one knows.

Do you think the Supreme Court discussed/debated the concerns which have been raised in the public arena since the Alito draft was leaked? Doubtful? Now the Supreme Court Judges whether they wanted it or not have had the opportunity to hear the debate on its proposed abortion ruling that it otherwise would have missed. The remaining question is what, if any effect, will it have on them.

Abortion Armageddon: The Post-Alito Apocalypse

Even before the Supreme Court has issued its verdict on the most recent abortion case, its leaked draft already is “Krakatoa, East of Java.” The draft has had an immediate impact in disrupting the political arena as well as the life of untold millions. We are just in the beginning stages of the latest abortion irruption so it still remains to be seen how the decision will unfold. In the meantime, what if anything can be known or suggested about what is to come?

SUPREME COURT FREEDOM OF CHOICE

Speaking as a non-lawyer, my understanding of the choices facing the Supreme Court are/were:

1. Support abortion and claim the Constitution does too
2. Support abortion but claim the Constitution does not address it
3. Oppose abortion and claim the Constitution does not address it
4. Oppose abortion and claim the Constitution prohibits it.

Given these choices, the Supreme Courts have chosen two different options. The original decision by the Court was Option 1. As a result there has been a proclaimed constitutional right to abortion for the past 50 years.

The new Court decision based on the leaked opinion is that the original Court decision for Option 1 was in error and there was not and is not a constitutional right to abortion. Instead the Court has chosen Option 3. The result will be the issue is remanded to the states, all 50 of them, to decide on their own.

For some people, that decision is not enough. They want a nation-wide ban of abortion to be accomplished through federal legislation. Most likely this means that the people who opposed the federal mask mandates:

NO SOCIALISM
NO SLAVERY
NO FASCISM
NO TYRANNY
NO GAZPACHO

now will support an intrusion into the body of a woman that they would not accept on the face of a person. While the prospects of such a law are nil in the present Congress, who knows what the future will bring starting with the next House of Representatives.

BE CAREFUL WHAT YOU WISH FOR

People have a habit of not thinking things through. They go for the immediate short-term gain without considering the consequences. To be fair, sometimes it is difficult if not impossible to recognize all the possible outcomes of a given decision. Science fiction abounds in alternate realities generated by the different possible scenarios derived from a single decision. One of the more common examples is when the magic genie appears to grant you three wishes. No matter how carefully you try, the wish always backfires.

Consider the two very recent examples by the two Trumpican presidential candidate wannabees. In Texas, the Governor has tried to make the border his path to greater political office. He would build a wall there with Texas taxpayer money. He would dispatch Texan military forces to patrol the border. Then he decided on his best stunt ever: he would establish a “blockade” on vehicles (trucks) entering Texas from Mexico.

His stunt immediately blew up in his face. He did not think the issue through. It was a sudden decision devoid of preparation. The results were exactly what anyone who thought about it would have predicted – LINES, LONG LINES, VERY LONG LINES. Long lines involving perishable items. Long lines involving medicine. Long lines involving vehicles running on a limited supply (tankful or less) of gas. Long lines of enraged people. What a great way to prove one’s worthiness to be Commander in Chief. Let’s see if the Governor of Florida can top that!

Sure enough in the “I am the better Trump” contest, the Florida Governor responded with his Disney ploy. As payback for Disney daring to defy the would-be 2024 presidential candidate’s action, the Governor responded in adult fashion with “Oh, yeah! Oh, yeah! Oh, yeah! I’ll show you who is boss.” He thereupon took away Disney’s self-governing status and passed the huge tax-buck onto the surrounding counties which now have to pick up the tab. Fortunately for those counties, the Governor’s action may not be legal since it requires legislative approval. Thus the biggest Florida state tax increase may be averted.

These examples illustrate the truism of unintended consequences. After decades of clamoring for the reversal of Roe v. Wade, the dog chasing the car finally caught it. Now what?

SUPPOSE THE ALITO DECISION HAD BEEN FIRST

First, let’s engage in a hypothetical. Suppose the Alito decision had been the decision of the Court in the original Roe v. Wade case, what would have happened then? Obviously there is no way to know for sure but some actions seem likely.

1. States would have proceeded to pass their own laws much as they have been doing and will do based on the expected ruling.

2. There would have been an effort to pass a privacy amendment to the Constitution. Given the widespread use of surveillance cameras and the intrusions of Big Tech, such an amendment is needed now more than ever. It is not enough to rely on judges inhaling vaporous emanations from the Constitution to pass legislation. We still need such an amendment.

3. Supreme Court ratifications would be more civil. Since the abortion decision had been remanded to the states, the rancor over Supreme Court approvals would have diminished. There would have been no need to hold a vacancy open for months on end. There would have been no need to rush an approval through either. There would have been no need for Senators to carry on like crazy people posturing for the infamous base. Candidates would not have had to lie to Senators. Just think, the reversal is due to three liars and a fourth judge who should have recused himself on 1/6-related cases because his wife is a co-conspirator.

4. People would not have had to hold their nose when voting for a President because of the desire to have the winner appoint judges who would reverse Roe v. Wade.

Politics in the United States would have been much different these last 50 years if so much of it was not viewed through the prism of abortion.

UNINTENDED CONSEQUENCES

The list of unintended consequences is only beginning to emerge.

1. When does child support start?
2. When can you take a child deduction for taxes?
3. Can you deport a pregnant woman or will citizenship be based on where conception occurred?
4. What happens in cases of assault and/or abuse if person-fetus is harmed?
5. What happens in cases of assault and/or abuse if the person-fetus is murdered?
6. What happens if the mother smokes, drinks, or uses drugs and risks the health of person-fetus?
7. What happens in the multiple test-tube fertilizations when the excess is discarded? Who will be charged with murder?
8. What other prohibitions will be sought as medical technology continues to develop alternate means of achieving the same ends of an abortion without technically having one? Will mail be searched or prohibited? Will out-of-state travel be restricted? Will states have to build a wall to prevent travel?

Think of what happened when Covid-is-a-hoax and the vaccine-is worse-than-the-disease people then died of Covid. What happens when unwanted pregnancies occur in anti-abortion families? What happens when the women who men are trying to control have an unwanted pregnancy and decide they want an abortion? To the best of my knowledge there are no state laws asserting that no woman can have an unwanted pregnancy just as the body cannot prevent a pregnancy due to rape. What will those pregnant women then do? Will the first words of the mother upon giving birth be “Where is the nearest fire station?” How much time will be allowed before maternity wards release the unwanted baby? Are fire stations going to be redesigned with drop-off receptacles for the unwanted babies? Will those receptacles be subject to the same security rules and restrictions as drop-off voting bins? So many questions. So few answers.

Remember what happened the last time the wishes of the Evangelicals were fulfilled? For decades, Protestant evangelicals had rallied for the prohibition of alcohol on a national level. It was not enough that alcohol sometimes was prohibited locally or on Sunday. It needed to be banned everywhere for all times … except for medicinal purposes, of course. Those efforts eventually paid off. That time it was not through the Supreme Court but in an amendment to the Constitution. Welcome to the Roaring Twenties. The amendment soon was reversed in abrupt fashion. The fervor of the religious could not overcome the wishes of the majority of the Americans. Once the law went into effect, everybody was confronted with its meaning and impact and eventually the majority prevailed.

The Law of Unintended Consequences: From Abortion to Voter Suppression

Lee Sauer (https://www.medaxiom.com)

The Law of Unintended Consequences is one of the most powerful laws in human society. It is the law that informs us that we are not God or gods. It tells us that we do not know what the future will be even if we try to discern it and especially when we do not even try. It manifests itself quite clearly in the decisions made in Washington which then have unexpected effects for years and decades to come.

In this post, I address some examples of this phenomenon at work.

SCHOOL BUSING

The Supreme Court ruling prohibiting separate-but-equal as a guiding principle for schools continues to affect Americans to this very day. On the one hand, the Court made a judicial ruling about a particular doctrine as being unconstitutional. On the other hand, the Court then mandated a remedy to the situation which actually was a form of legislation. The legislative solution was arrived at without public participation. It did not follow the normal political discourse which would have occurred if he Court had turned to Congress with instructions to write a law reflecting the principles of the judicial decision. Instead it decreed a solution. Are we today where the Court wanted us to be when it legislated the solution nearly 70 years ago?

The Court did not address the following in its school ruling:

1 the continued existence of segregated neighborhoods
2 the continuing disparities in school funding based on local taxes
3 racism.

What the Court did do was to exploit the most vulnerable members of the community, children, by ordering them to be removed from their neighborhoods and communities and bused to neighborhoods and communities that did not want them.

To the surprise of no one who stopped to think about this legislative decision on how to live according to a legal principle, the Court mandate was not well received. Over time, people developed ways to game the system as one should have expected.

1 new primarily white municipalities were created
2 new primarily white private schools were created
3 chartered schools developed as a new concept
4 magnet schools were created to separate white students
5 support for property taxes for public schools declined
6 it was accepted that quality schools in every neighborhood was not a goal.

I am not suggesting that any legislation to end school segregation would have worked. I am suggesting that abandoning the concept of quality schools in every neighborhood contributed to having schools with tainted water, rats and cockroaches, inadequate supplies, and inferior technological resources. While all of this could not be anticipated the Court had the recent experience of Prohibition to remind them of the limits of a law on changing behavior. Imagine how different public education would be if the Supreme Court had mandated standards in the physical infrastructure of neighborhood schools.

CIVIL RIGHTS

By contrast, civil rights legislation including voting occurred in public and not in secrecy. In this case, Congress passed legislation with specific goals in mind. The law of unintended consequences did not apply here. President Johnson knew exactly what would happen once these laws were passed – Confederates would leave the Democratic Party and become Republicans. Johnson was exactly right. Confederates remain Republicans to this very day. Lee is a more revered figure to many in the Republican Party, than Lincoln.

ABORTION

With abortion, the Supreme Court followed the same scenario it had in the school busing decision. The Court made a decision on a legal principle, this time the previously unknown right to privacy. It then took it upon itself to legislate how that right was to be implemented. Again it did it all by itself without any public discussion. Again it mandated the implementation.

This time the outcry was even worse than with school busing. Here we are 50 years later and that Supreme Court decision dominates politics. Off hand, I cannot recall another Supreme Court decision that has had the staying power of the abortion decision to remain so important in the American political arena. It is hard to imagine that when the Judges ruled on abortion decades ago that they thought it would remain a sustaining issue for as long as it hand.

Abortion and school busing share some actions in common.

1 The trimester and busing solutions pronounced were not necessarily the one and only way to fulfill the legal principles enunciated in the case – when more than one solution is possible, the resolution should be done through the legislature and not the court.
2 The solution was decided upon in secret without public participation.
3 Opponents have tried to game the system ever since it was rendered.

It also is highly unlikely that Supreme Court Judges anticipated the change in technologies which have occurred. It is highly unlikely that Supreme Court Judges anticipated debating the merits of 6 weeks versus 15 weeks versus 24 weeks as a legal issue. Is that really why they went to law school?

Even with the Supreme Court ruling(s), the options available vary widely from state to state.

In addition, there is more and more awareness now that the issue for many abortion opponents is not about the sanctity of life but the control of women.

OBAMACARE

The effects of Obamacare extend far beyond healthcare. It is comparatively easy to determine the number of people who have benefited from the enlarged health care provisions. The difference is especially notable when contrasting states which have accepted the Medicaid expansion and those which have not. There is no doubt that strictly from a healthcare perspective, Obamacare rates as a positive piece of legislation.

However life is not all healthcare. Imagine for a moment that the legislation had been passed not in 2009 but in 2011 or 20213 or 2015. See the difference? Johnson foresaw the political consequences of the passage of civil rights legislation; Obama did not foresee the political consequences of passing the health care legislation. The political consequences of that legislation continue to disrupt American politics to this very day and likely will until 2030 if not beyond.

The reason is 2010. A census was conducted in 2010 just as it was in 2020. Based on the census, the number of Congressional electors is reallocated among the states. Within each state, the federal and state legislative districts are then redrawn as well. It is a time of gerrymandering where political parties slice and dice the electorate to maximize their control of the legislature. For Democrats, the 2010 elections were a disaster of catastrophic proportions. While all the results cannot be attributed to Obamacare, there is no doubt that the 2010 election greatly aided the Republican Party in asserting its control over many state legislatures. Democrats can still win state-wide elections for Governor or Senator in those states, but it would take a tsunami to end Republican control in the state legislatures.

How do you measure the cost of the benefit of healthcare versus the loss of state legislatures? Johnson knew the Democrats were going to lose and decided the merits of civil rights outweighed the political loss of the Confederate vote. Would Obama still have supported Obamacare right out the box (while Ted Kennedy was still alive), if he had known the political consequences?

Unfortunately for Democrats, the situation is even worse for Democrats following the 2020 census. Despite the changes in population and the demographics, Republicans rule in more state legislatures than Democrats. It is becoming increasingly more difficult to have battleground Congressional districts. They still exist but their numbers dwindle.

What makes the situation worse for Democrats, is that the rules of the game have change. It is not just about gerrymandering now. There is voter suppression. There are compliant Secretaries of State who are obedient to a candidate and not to the Constitution or the rule of law. There are changes in voting rules empowering state legislatures to select electors instead of leaving it to the people. The list of restrictions to determine the desired outcome continues with even more laws promised in 2022 to ensure that only Trumpican candidates prevail with there being little the Democrats can do about it. The changed environment means the country is on 2010 with steroids. Democratic governors are fighting state legislatures that have had non-Democratic majorities since 2010. This too is part of the cost of Obamacare.

We may not even have to wait for 2024 to have electoral chaos.

I don’t know if the math exists to calculate the benefits from Obamacare versus the costs of Donald Trump.

Soon there will be another round of unintended consequences. The decades long quest by the anti-abortion forces finally will prevail just as the Temperance movement eventually had an amendment passed. What will happen then?

On January 6, Trumpican insurrectionists said if they could not rely on the Supreme Court then they had no choice but to take matters into their own hands. By 2024, both sides in America’s Third Civil War may feel the same way.

A Tale of Two Countries: December 9, 2019

A Tale of Two Countries (https://www.ancient-origins.net)

Report Debunks Anti-Trump Plot in Russia Inquiry (NYT, December 10, 2019)

Deep state in deep legal jeaopardy (sic) (Sean Hannity on Foxnews.com)

In which country do you live?

Do you live in the country that sees the Inspector General Report as one which asserts there is no Deep State and no political assault on Donald Trump? Or do you live in a country that sees the Inspector General Report as one which validates that every claim made against the Deep State is true and the perpetrators of the single biggest abuse of power in American history are in deep legal jeopardy?

Should Comey be taking a victory lap on the Fake News talk shows or is Duped-Again-by-Hannity right to warn him about doing exactly that?

There is only one Inspector General Report but according to the President of the United States the current Director of the FBI must have received a different one then he had. Putting aside the obvious fact that the President of the United States lacks the mental necessities to read the report and is relying on what his Attorney General told him, the comment nonetheless goes to the heart of the matter. The response to the Inspector General Report documents that we live in two countries within a single political entity. Now we are engaged in a great civil war, testing whether that political entity or any political entity so conceived, and so dedicated, can long endure.

As I listened to the two factions in the Civil War, I was struck by the difference in tone. The Fake News talk shows were relatively measured in their tone. The word “debunk” frequently was used. The texts related to the lack of political bias were quoted often. Ironically, people in the past who have objected to how easily the FBI could open an investigation now deployed that shortcoming to solidify the argument that no political bias was involved. In this regard, the report confirmed what many already feared about the broad powers of the FBI to launch an investigation even as it showed the Trump investigation was a legitimate one.

Obviously, the cool, calm, and collected mature President was having none of it. Instead he launched a hissy fit tirade against the report, the very report that Duped-Again-by-Russia Hannity said vindicated everything he had said about the Deep State. In the show following his, the host practically had steam coming out of her ears such was her fury about the report. She demanded that action be taken so there could never be an abuse of power by the Deep State again.

The President’s new Michael Cohen promised to fix things. The new Michael Cohen declared that the conclusion of the report made clear that the FBI investigation into the candidate was fraudulent from the start and never should have occurred. The Trump-appointed Attorney vowed not to relent in his pursuit of the truth until he had a report he wanted. It would exonerate the President and indict the Deep State. No matter how long it takes as long as it is before the elections so the voters will see the truth, there would be a report. Nunes the crooked clown hadn’t produced the goods, Horowitz hadn’t produced the goods. The Durham Bull would.

What does this all mean for the Third Civil War? Right now the President is all-trash talk all the time. His seventh-grade smart-aleck dumb aleck self will be on display nonstop from now until the election if not afterwards. He will be joined by Duped-Again-by-Russia Hannity who cannot refer to Adam Schiff by name without adding the pejorative “compromised, corrupt, congenital liar.”

The needle will not move.

Minds will not be changed.

The intensity of emotions will ratchet up.

At some point it will boil over.

At this point, it is not exactly clear when the war of words will go to the next level. The question is not whether or not we will become Hong Kong, Lebanon, Iraq, or Iran but when. There are any number of potential explosive points.

Impeachment and the Senate trial will not be one of them. Everybody on both sides has known for weeks how it will end so there will be no surprise when it does end without removing this President from office. Therefore it will not be a catalyst for widespread demonstrations that lead to violence.

In case you think I am over-reacting, consider this line from The New York Times on December 8 written even earlier and therefore before the Inspector General Report or Articles of Impeachment:

…the poll also revealed that Americans feel deeply pessimistic about the nation’s future and fear that worse political conflict is coming. Some military analysts and historians agree and put the odds of a civil war breaking out in the United States frighteningly high.

What might trigger the demonstrations?

One possibility is the President of the United States will openly defy a Supreme Court ruling. So far he has only openly defied Congress and declared that check and balance void. There easily could come a time when he will do the same to the Supreme Court. It may not come to that, but it should be recognized as a possibility that such defiance will a flashpoint, the straw that breaks the camel’s back leading to demonstrations that result in violence that cannot be controlled or stopped.

For example suppose, the Court rules that Congressional subpoenas are valid and that people have to testify. If the current President of the United States defied that ruling how would the Supreme Court enforce it? Not much has changed in that regard since Andrew Jackson. Do you think any of the Trumpicans would testify in defiance of the President because their loyalty to the Constitution trumps their loyalty to this President? And then tell the whole truth and nothing but the truth? Are you serious?

Suppose instead the current President of the United States decided to comply with the Supreme Court ruling, what would his people say under oath? There are four possible responses to any questions posed to them.

1. I refuse to participate in this witch hunt.
2. I refuse to participate in this hoax.
3. I claim executive privilege.
4. I plead the 5th.

In fact they might even ask questions of their own.

1. Where’s Adam?
2. Where’s the whistleblower?
3. Where are the Bidens?

In short, Jonathan Turley was completely wrong. A delay in the impeachment vote would not produce any additional information from the co-conspirators.

Then what about the tax returns? Suppose the Court orders the tax returns to be released to Congress, would the current President comply? Obviously not. Would that lead to riots and demonstrations because the current President placed himself above the law? No.

Suppose in an act of civil disobedience, someone in the IRS releases the tax returns following the Court ruling and Presidential defiance? It would led to a fury of legal actions but probably not to any demonstrations.

Suppose the tax returns reveal that this President had been laundering money for the Russian mob? Would the Department of Justice take action against this President? Obviously not? Would Congress take up new articles of impeachment? Obviously not.

What all this means is the flashpoint for in-the street action will be the presidential election itself. At this point it is too early and uncertain to know how that will play out in the Electoral College, the popular vote, and in the legal proceedings following the election.  It will be an apocalyptic battle between the forces of light and darkness. It will lead to tens of millions of people being traumatized. It will be a time when people take matters into their own hands. It will be Putin’s finest moment.

Civics and the Citizenship Test in the Time of Trump

www.heraldextra.com, June 11, 2016

Naturalized Americans unlike native Americans are obligated to demonstrate mastery of civics. To do so applicants take an exam covering American history, government, and ideals. It is a multiple choice question exam. This means that as with the SAT, it is possible for the tester to measure the results on the questions: which questions do applicants tend to get right and which ones do they answer incorrectly. Presumably the results enable the testers to better formulate questions for the next round of tests.

On July 4, 2019, the New York Times printed the article “Citizenship Test to Beat All Citizenship Tests: Thousands of Immigrants Pass a Difficult Rite to Take the Oath of Allegiance. Could You Do the Same?” It identified the ten questions most likely to be answered incorrectly from a 2011 study. This blog will address two questions and do so based on the present.

#2. Which of these is something Benjamin Franklin is known for?

A. He was the first person to sign the Constitution
B. He discovered electricity
C. He was the nation’s first postmaster general
D. He was the nation’s second president

The officially correct answer is “C.” Yes Franklin was our first postmaster general. How many people who are not students of American history or who do not live along a mile marker on the Boston Post Road as I do know this? What is Franklin best known for? Answer: Flying a kite…in a storm…that was hit by lightning…which was electric. True, that does not mean he discovered electricity. What he did discover was the lighting was electric and could be “encouraged” to strike a metal object thrust up to the heavens, hence the lighting rod. The real problem with this question is in its wording and not in the ignorance of the applicants. It needs to be revised.

The second question to be addressed poses other problems that are quite current not only today but as I am typing this blog.

#4. Which statement correctly describes the “rule of Law”?

A. The law is what the president says it is
B. The people who enforce the laws do not have to follow the law
C. No one is above the law
D. Judges can rewrite laws they disagree with

Again the officially correct answer is “C.” I imagine even as you were reading the choices you were chuckling or gasping at the options. Was one supposed to answer based on the real world or “on paper”?  Judges are routinely criticized by people on all sides for rewriting or concocting laws to fit their preferences. Congress routinely exempts itself from the laws it passes to apply to We the People. As for choice “A”, think of what is going on right now.

This article appeared on page 12 on the left side of the printed paper. On page 13 on the right side of the paper, the above-the-fold article was “After Navy SEAL’s Acquittal, Fears That War Crimes Will Go Unreported.” The article was about the acquittal of Edward Gallagher in a court martial for war crimes committed in Iraq in 2017. The charges included stabbing a wounded captive to death and shooting unarmed civilians. Gallagher was convicted and demoted on the charge of posing for inappropriate photos with the captive corpse.

What did this ruling mean for the answering of the question?

The SEALs who reported these actions chose option “C”, no one is above the law.

The President of the United States personally intervened in the case to have the accused released from pretrial detention. After the verdicts were announced, he tweeted congratulations and said “Glad I could help!”

Gallagher himself then appeared on “Fox and Friends,” no surprise there, and said:

To future Navy SEALs, loyalty is a trait that seems to be lost, and I would say bring that back. You are part of a brotherhood. You are there to watch your brother’s back, he’s there to watch your back ⸺ you just stay loyal.

By contrast, the SEALs who reported the actions felt otherwise.

Maybe I was naïve to think that justice would be served.

Based on option “C”, loyalty to the law and the Constitution trumps loyalty to the band of brothers. Here we have a live example of “A Few Good Men” where Jack Nicholson triumphs and Tom Cruise is defeated with the applause of the President of the United States. So why should an immigrant seeking to be naturalized answer “C” on the exam when obviously it is incorrect.

Want more? Turning to page 21 of the very same issue of paper on July 4, there was an article “’Bridge Scandal Posing a Threat to Legal Lanes.” According to the article legal experts were surprised by a Supreme Court decision that potentially would weaken the ability to prosecute politicians for political malfeasance. What was once considered to be illegal is increasingly regarded as normal political behavior. Actions like shutting lanes on the George Washington Bridge as retribution against a mayor who did not support the governor was just politics regardless of the disruption to the people. Given this view that what is political is not illegal, the recent gerrymandering verdict should be no surprise. Of course, since the rule of law no longer applies to politics, all political parties and politicians can now claim their double “O” license to politic without considering the rule of law.

Still think option “C” is the correct one? Let’s turn to the citizenship question and the census. That article was on page 14 of the same day, beginning as the lead article on the front page. Before turning to it, I would like to remind you of what I first wrote on September 7, 2018, about the Supreme Court and the President about his leaving the White House after 2020 elections if he loses.

There may be a preview of the 2020 crisis with his tax returns. Individual #1 will not voluntarily release his tax returns. It does not matter how the Democrats submit their requisition, he will not honor it. If his court rules in his favor, then the issue ends there. If the Supreme Court also has a traitor and the ruling is against Individual #1 he will not honor it. Instead he will claim Executive Privilege and that the Court has no authority over him. What will the Supreme Court do then? Or to update Andrew Jackson: “John Roberts has made his decision; now let him enforce it.”

I repeated it on May 6, 2019, following Michael Cohen’s testimony that Individual #1 would not voluntarily vacate the White House.

The article on July 4 reported the surprise of the Justice Department officials on the census case. They were “blindsided” by the comments that an effort was underway to put the citizenship question back in the census despite the Supreme Court ruling. Claims that the President had acceded to the ruling were tweeted as “fake news.”

The next step was the attempted removal from the case of these government lawyers who had defended the census question inclusion. The reporting referred to this action as “unprecedented” and again used the term “blindsided” to refer to how the lawyers learned about the shift in decision from acceptance to defiance. The removal appears to have occurred because the lawyers chose option “C” while the Attorney General and President chose option “A|”: the law is what the president says it is. According to the article these lawyers regarded themselves as professional or apolitical who like school debaters can vociferously advocate for whatever side they are assigned in the competition. What they cannot do is reverse themselves from what they had just argued or defend statements that they know not to be true. Therefore, as a matter of principle they declined to pursue the case after the Supreme Court ruling. The search for replacements was underway as was the issue of whether or not the judge would even allow the change in the lawyers midstream for no satisfactory reason.

Then after exhausting all options to defy or circumvent the Supreme Court, the battle ended. There actually does seem to be a line he will not cross.

In the meantime, Nancy Peolosi has threatened a vote in the House to subpoena the relevant documents. They would demonstrate that the true purpose of the census citizen question was to depress the population count in Democratic districts and thereby undermine the redistricting process. Obviously such a subpoena would be defied. Then the Department of Justice would decline to prosecute the people who had defied the court order to comply with the subpoena.

Still think option “C” “No one is above the law” is the correct answer? In your dreams. Not in this reality.

PS Since July 4 there has been Jeffrey Epstein, Alexander Acosta, and Donald Trump. Option “C” is the only wrong answer.