Anti-Trump Extremes in the Judiciary
Do These Cases Prove Scalia Right?
Through the lens of a 15 May 2017 The Weekly Standard article by Marc O. DeGirolami, the effects of Trump-hatred within the courts starts to come into focus. Nonetheless, I added emphasis by bolding the key phrases.
“Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to ‘resist’ Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.
Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution. But Trump’s presidency may be even worse, because too many judges now feel called to ‘resist’ Trump and all his works—no matter the cost to the law’s authority and to the integrity of the judicial role.
In one recent deformation, Trump was sued for incitement to riot and assault and battery when, at a campaign rally before he became president, he said ‘Get ’em out of here’ in response to protesters in the audience. Several of these protesters were subsequently pushed and struck by others in the crowd. A Kentucky federal district judge ruled that the case against Trump could proceed because ‘Get ’em out of here’ could reasonably be interpreted as an exhortation to attack the protesters.
It is not possible to explain this jaw-dropping ruling—one that flies in the face of binding Supreme Court precedent—without reference to extra-legal factors: the desire to embarrass the president, for example, or to create mischief for him, or to signal opposition to him. That Trump had previously ‘condoned violence’ is irrelevant to whether he incited a riot at this rally. It is highly relevant, however, if one’s purpose is grandstanding to injure a political opponent.
An even more appalling specimen of fake law has been generated by Trump’s executive order restricting entry into the country by nationals of six foreign countries for 90 days and suspending refugee admission for 120 days. In one court order, a Hawaii federal district judge rejected the government’s claim that the six nations posed special security threats (on this, the Trump and Obama administrations are aligned) and concluded that the order violated the establishment clause. Relying principally on obscure dicta from Justice David Souter’s opinion for the Supreme Court in McCreary County v. ACLU (2005), the court held that the ‘unique,’ ‘remarkable’ ‘historical context’ of the order, ‘full of religious animus, invective, and obvious pretext,’ tainted it with anti-Muslim bias and therefore evidenced a purpose to make a law respecting an establishment of religion.
The court pointed to campaign statements by Trump that ‘Islam hates us’ and by his ‘surrogate’ (a media term appropriated by the judge) Rudy Giuliani’s description of a campaign conversation with Trump about a ‘Muslim ban’ to justify its holding. This executive order was narrower than its predecessor—but somehow that counted against the government. In reaffirming its decision in a preliminary injunction, the court erupted in sanctimonious disgust: ‘The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.’
And unreasonable observers have unreasonable ones. Put to one side that the Supreme Court has never yet applied the establishment clause to foreign claims—a fact not even acknowledged by this judge. What makes the Hawaii court ruling so absurd—and such a clear example of fake law—is the district judge’s use of campaign statements by people without any lawmaking power when they were made to identify the order’s purpose.
A large part of the blame for this abomination falls on the Supreme Court. It was only a matter of time before the hollowness of its favored establishment clause test—which focuses on impure motivations, perceived slights, and the hurt feelings of political exclusion—would be exposed in the patently unreasonable use of irrelevant and illimitable ‘context.’ The reasonable observer, it seems, is not the judge who faithfully applies the law but the politically motivated judge who swells the scope of the establishment clause and wears his contempt for the president like a medal.“
(Read more at The Weekly Standard)
While the judicial rulings regarding the immigration pause from lands nearly impossible to vet and the enforcement of existing immigration law provided good examples of the whimsical (rather than precedent-based) nature of the judges’ decisions, they seem to illustrate even more that we all have been living in a kritarchy for quite a while. To further illustrate that, we might consider the cumulative 50 million who voted across multiple states to support the traditional view of marriage and then the 5 lawyers in black robes overrule the 50 million votes. After mulling over that massive example of judicial overreach, consider the overreach involved in redefining Obamacare into its tax status (rather than the penalty Obama insisted the ACA had at its heart).
Would it then be an overreach to think that Justice Antonin Scalia might have had a prescient moment when he wrote in the dissenting opinion to Obergefell v. Hodges:
|Washtenaw County Board of Commissioners|
Reaction Against Enforcing Immigration Law or Reaction Against Republicans?
In a 6 May 2017 OneNewsNow article, the extents to which some liberals will go to thwart the rule of law using taxpayer funds in the effort. From a county that wants to provide taypayer-funded legal representation to illegal aliens to governors who want to establish sanctuary states to members of the Muslim Brotherhood in American government, this article pieces together a frightening tapestry.
“In a reported attempt to spite President Donald Trump for being tough on immigration, officials in Washtenaw County gave their initial approval to forward new immigration policies designed to welcome criminal aliens, illegal migrants and other immigrants through resolutions – one of which gives taxpayer-funded legal aid to illegals facing deportation … for free.
The leftist county – which is home to the University of Michigan – is looking to become the ultimate sanctuary of sanctuaries for illegals.
‘Washtenaw and its main city of Ann Arbor are already sanctuary jurisdictions, but now they are expanding and codifying their policies that give all sorts of favorable treatment to refugees and immigrants – regardless of legal status,’ WND reported.
Payback for Trump … at taxpayers’ expense
The motivation behind the aggressive immigration reform move is reportedly payback to Trump for seeking to increase deportations and augment law enforcement’s crackdown on illegal immigrants.
‘As an act of resistance to President Donald Trump’s agenda and in solidarity with the county’s immigrant community, the County Board of Commissioners voted 5–2 at its Ways and Means Committee meeting Wednesday night, May 3, to give initial approval to new immigration policies,’ Mlive.com announced regarding the three-resolution package, which could receive its final approval on May 17 – the date of the next full board meeting.
Through the use of inclusive rhetoric, the various pro-immigration reform policies seek to manufacture new rights for illegal immigrants at taxpayers’ expense – while paying no heed to the increased risks incurred by legal residents who could suffer the deleterious economic and safety effects of having criminal aliens in their communities.
‘One resolution asserts the county’s support for the immigrant community, another affirms the county as a welcoming community that respects the innate dignity of all people and the final resolution adopts a policy governing the solicitation of immigration status by Washtenaw County public servants,’ the local Michigan news outlet informed.
It is anticipated that the resolutions introduced by Commissioner Conan Smith (D-Ann Arbor) allocate an exorbitant amount of taxpayer funds toward helping illegal immigrants continue to break the law by staying in the country illegally – money that is reportedly needed by law-abiding and legal county residents.
‘There’s an expectation the county will be putting taxpayer money toward programs to aid immigrants – including undocumented immigrants facing deportation or otherwise affected by federal immigration enforcement,’ Mlive.com’s Ryan Stanton explained. ‘Commissioners decided against including specific dollar amounts in the resolutions, though a memo accompanying the package states the board’s actions would result in appropriations of about $135,200 from the general fund’s cash reserves for one-time expenses.’
Forget sanctuary cities … let’s talk ‘sanctuary state’
In his bid to make history and become the United States’ first Muslim governor in the 2018 election, Democratic candidate Abdul El-Sayed is working to make Michigan a ‘sanctuary state’ for undocumented immigrants in a reported act of retaliation against Trump for his push to deport illegals and increase the enforcement of immigration laws.
‘El-Sayed pitched the ‘sanctuary state’ concept in a new policy platform outline his campaign released Monday,’ The Detroit News reported. ‘The former Detroit health director and son of Egyptian immigrants also proposed a public health insurance program for Michigan residents, a minimum wage increase and universal pre-school access.’
The Muslim politician claims that no national reform exists to give illegal immigrants any viable path to citizenship, insisting that illegal immigrant families should be protected by the state, which should recognize the role illegals play in the economy – by providing farmers with cheap illegal labor.
‘This is a bold, progressive approach to the very real and very serious problems that our state faces right now,’ El-Sayed told The Detroit News while on the campaign trail in Grand Rapids, Michigan. ‘[Sanctuary status would mean] the state is not going to invest its own dollars, its own police force, its own corrections money equipping and empowering what seems to be questionable – and often dispassionate – enforcement of laws and policies that are unclear at best.’
More red flags …
Heightening the national security threat even further, it is noted that El-Sayed has ties with an internationally identified Islamic terrorist group – the Muslim Brotherhood.
‘He is the former health director for the city of Detroit and graduated from University of Michigan, serving during his time on campus as the president of the Muslim Student Association,’ WND’s Leo Hohmann divulged. ‘The MSA is a front group for the Muslim Brotherhood, as documented by the FBI in evidence presented at the terror-financing trial prosecuted in 2008 against the Holy Land Foundation.’
El-Sayed is reportedly on board with the global agenda to Islamize the West – a movement championed by an ardent backer of the Muslim Brotherhood, former President Barack Obama.
‘There are more than 300 sanctuary cities and counties now operating in the U.S., following the dictates of the United Nations’ New Urban Agenda, which is the implementation plan for the U.N. 2030 Agenda for Sustainable Development,’ Hohmann continued. ‘The document incorporates for the first time the rights of migrants into U.N.’s 17-point plan for global development, which was adopted by 193 heads of state, including President Obama and Pope Francis, at the U.N. in New York in September 2015.’ “
(Read the rest at OneNewsNow)
So, according to the liberal side of this story — even though laws that liberals don’t like have been passed and though politicians that liberals don’t like have been elected — liberals can
- Just ignore those pesky laws,
- Fund their actions out of the public coffers, and
- Set up groups supported by ousted liberal leaders in ways that those groups can discriminate in favor of the small (but growing) group.
However, as known by many conservatives, when a liberal sets up a bureaucracy or creates a law — those rules and laws must be observed. Just ask Baronelle Stutzman, Melissa Klein, Elaine Huguenin, Cynthia Gifford, Jack Phillips, Crystal Dixon, Mary O’Reilly, or Betty Odgaard. Additionally, if you want to know about the intolerant left, talk to Kevin O’Connor, Trish McGrath, or Edie Delorme.
As you review all the linked cases of intolerance, do these liberal bureaucracies and unchecked liberal campaigns only seem to target Christians? They do. However, we couldn’t expect a gay baker to create a cake covered with Bible verses, could we?
Anti-Religious Left – Will They Allow Religious Freedom?
Of the commentaries that I have read on president’s executive order concerning religious freedom, the following 11 May 2017 assessment by the National Catholic Register provides the best overall review of all sides of the issues involved. (Ellipses mark sections where I removed text. Except for the headings in this article, the emphasized text was bolded by me.)
“When President Donald Trump introduced his May 4 executive order on religious freedom, members of various groups were on hand at the White House, including prominent Catholic leaders.
Cardinal Wuerl’s assessment explained why Church leaders attended the White House event. After years of battling the Health and Human Services’ contraceptive mandate and other rules that compromised religious freedom, Trump signaled a fresh approach to church-state relations.
Yet Cardinal Wuerl did not suggest that the executive order had resolved all the religious-liberty issues that stirred alarm during the Obama years, such as rules that barred federal contractors from discrimination on the basis of gender identity or weak enforcement of conscience protections for opponents of abortion.
Rather, he pointed to the likelihood of incremental change that would steadily ease the pressure on religious believers and church-affiliated institutions.
‘Once you start moving in the right direction, there is more you can correct,’ he said.
Other religious leaders and commentators have echoed the Washington archbishop’s positive, nuanced reaction to the release of Trump’s long-awaited executive order, and they say their position reflects a clear-eyed judgment of the weakened status of religious freedom.
But the document has also prompted anger and concern from social conservatives who describe its language as ‘vague’ and ‘woefully inadequate.’
The executive order directs federal agencies to consider issuing new rules to address conscience-based objections to the HHS mandate, which requires employers to offer health insurance plans that fund contraception, sterilizations and some drugs that can cause early abortions.
It also calls for a relaxation of the IRS’ enforcement of the Johnson Amendment, which prohibits ministers from endorsing political candidates from the pulpit to retain their church’s tax-exempt status.
Some prominent evangelical Protestant pastors, like Franklin Graham, president of the Billy Graham Evangelistic Association and Samaritan’s Purse, welcomed Trump’s stance on the Johnson Amendment. Franklin has said that his organizations were audited by the IRS after he spoke out against same-sex ‘marriage.’
But the repeal of the Johnson Amendment has never been a top priority for most Christian or Catholic churches. In contrast, faith-based resistance to same-sex ‘marriage’ and to accommodations for gender-identity issues has sparked litigation. Yet the executive order offered no reprieve on such matters — in contrast to provisions that appeared in an early draft of the executive order leaked in February.
‘The president’s order is a huge disappointment,’ Gerard Bradley, a law professor at the University of Notre Dame, told the Register.
‘The first part, which is directed at the so-called Johnson Amendment and the tax-based limits upon political expression by churches, is already rarely enforced.’
‘The second, which was probably aimed most of all at the HHS ‘contraception’ mandate, promises nothing concrete. Besides, the Supreme Court has already directed the federal government to negotiate a new approach to that mandate,’ said Bradley, in a reference to the high court’s order in Zubik v. Burwell, a consolidated HHS mandate case that includes the Little Sisters’ lawsuit.
‘The president has retreated, massively, from the positions his administration staked out in a leaked and widely disseminated draft of the order. Most pointedly, it surely appears that the Trump administration is unwilling to help believers beat back imposition of the ‘LGBT’ agenda upon them.’
HHS Mandate Commitment
Legal scholars say that two key Trump appointees — U.S. Attorney Jeff Sessions and HHS Secretary Tom Price — both strong advocates of religious freedom, will likely approve rule changes that will benefit plaintiffs in legal challenges to the contraceptive mandate.
But analysts still argued that the executive order lacked teeth.
‘The attorney general’s guidance is likely to be pretty religion-friendly, but … this order in itself does nothing,’ said Douglas Laycock, a specialist on religious freedom at the University of Virginia Law School. ‘[There is] nothing here about gay rights, about federal contractors or about federal employees. ‘
Some commentators have gone further, dismissing the executive order as a shallow political ploy that delivers nothing of value to beleaguered churches under pressure to conform to new sexual orthodoxies.
‘Moved in the Right Direction’
Yet, even as Dreher vented his fury at the Trump White House, he also admitted that things could be much worse if the real estate mogul had lost the presidential election.
‘[W]e would have seen active attacks on religious liberty by President Hillary Clinton. If Trump is doing no good for us, at least he’s not doing active harm,’ said Dreher. ‘There’s something to be said for that. I’m not kidding.’
R.R. ‘Rusty’ Reno, the editor of First Things, suggested that Catholics should not be surprised by the limited scope of the executive order.
‘During his campaign, Trump made it clear that he was not interested in challenging the sexual revolution and gay movement,’ Reno told the Register. ‘The executive order reflects that stance. At this point, the Trump administration is offering religious believers a stance of non-aggression rather than laying down firm principles to protect religious freedom.’
‘This is an obvious improvement on the approach taken by the Obama administration, but falls short of a clear affirmation of religious freedom,’ he added.
Reno, the author of Resurrecting the Idea of a Christian Society, wants religious believers to push hard for a more comprehensive White House policy on religious freedom.
‘These efforts need to include ensuring that Trump’s judicial appointments inject a First Amendment rigor into the courts,’ he said.
Earlier this week, the White House announced 10 nominees to fill openings on the lower courts, with more needed for an additional 110 empty seats. Carrie Severino, a conservative activist and a veteran of Supreme Court confirmation battles, welcomed Trump’s choices.
The news offers further evidence that Trump intends to fulfill his campaign pledge ‘to appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans,’ Donald McGahn II, the White House senior counsel, told the New York Times.
Looking ahead, Trump’s nominees could help secure protections for religious freedom as an increasingly secular culture parts ways with organized religion and biblical teachings on marriage and sexual ethics.
At the same time, the heated debate over Trump’s religious-liberty executive order has also deflected attention from legislative action that could either beef up conscience rights, or, say some, strike a balance between religious freedom and ‘LGBT’ rights.
‘When it comes to LGBT and marriage-related issues, there are those who want Trump to do something quite aggressive and are disappointed that he did not,’ said Schultz. ‘Others would say, ‘No, better to save our political capital for future legislative engagement.’’
‘An executive order is, by definition, a short-term policy change,’ he added. ‘If the choice is between short-term and nothing, short-term might be preferable, but most would like to see policy changes that will outlast this administration, and that is going to involve legislation of some kind.’
As the debate over the executive order and the evolving priorities of the Trump White House continues to simmer, Church leaders acknowledge that churches must also do more to register their own support for ‘the first freedom.’
Cardinal Wuerl said he also has found inspiration in Pope Francis’ ability to bypass the secular filter of global media and bring Jesus Christ and his teachings to ordinary people.
The New Evangelization asks each ‘follower of Christ to become an evangelizing disciple,’ the cardinal said.
‘Statements from the bishops’ conference or pastoral letters won’t touch individual believers’ hearts. You have to be the voice for those values.’ “
On the whole, I have to agree with the author on several accounts:
- This is not the best executive order in regard to protecting our religious freedoms; however, conditions would have been much worse under Clinton or Obama.
- This executive order does not protect Christians from the ongoing onslaught from the LGBT community. However, in light of the judicial activism tying the travel pause and sanctuary city executive orders, perhaps we should consider the entire legal landscape as we move forward.
- Of course, we should try to secure greater protections of our freedoms since they have been so completely eroded during the Obama administration.
- We need to fill the judicial landscape (both the Supreme Court and all the lower courts) with as many conservative jurists as we can.
- We should always be ready to give an answer for the hope that we hold. While we must challenge the wrong that appears around us, we also don’t need to act offensively when offended.
The Johnson Amendment Not Applied to Democrat Strongholds
As pointed out in an August 2016 post in this blog, Democrats have ignored the requirements of the Johnson Amendment since it was created. However, that should not be a surprise since the law was forced through Congress by then-Senator Lyndon Johnson after conservative churches almost cost him an election.
In light of this inequal application of the law, why don’t we just get rid of it?