Looking Back: July 2014 on JimsJustSayin

He's George Takei and It's Okay ... For Him to Be Wrong 

Ensign Sulu, I won't tell you how the Enterprise slipped into a worm hole, and you don't tell me  how the Free Exercise Clause and Religious Freedom Restoration Act work.

A False Claim and A True Bill 

Like all sensible folk, I wasn't watching the Sunday morning talk shows when UN Ambassador Susan Rice appeared on all FIVE network shows.  So, until it was reported later that day and in subsequent days, I did not know that the Administration was asserting that the attacks on our Benghazi compounds resulted from a spontaneous response by people of Islamic faith who were offended by a YouTube video deemed blasphemous of Islam.

Boehner's Boner: Ineffectual Parenting of the Boyking 

If Boehner wants to do his job, he needs to forget about suing the President. Even if he can get every Republican in the House to authorize the suit, the federal courts will, ultimately, throw the suit out (a) because of lack of legal standing to sue, or (b) as presenting a non-justiciable political controversy.

Devising a Code of Conduct for the Supreme Court? 

Adopting yet another federal law -- the resort of scoundrels as a general rule -- rather than deploying the law as it exists now, is not the answer.  It is, however, in keeping with the temper tantrums of our times.  Rather than proceeding on Articles of Impeachment, the proposed solution is to adopt a statute.

DREAM Act Birds Come Home to Roost 

We are three days past Independence Day.  I hope, nonetheless, that you will recognize that usurpation of legislative authority by King George III constituted the principal basis for our rebellion against English tyranny.  Obama's tyranny is no less offensive to the republican self-government to which our Declaration aims, our State Constitutions frame, and our National Constitution commits.

Stolen Page from the Obama Diary, July 9, 2014 

Dear Diary, I visited the border today.

Why Having Two White Parents That Remain Together Through Life Is Sucky 

The fact is, having one black parent is good enough to make Barack Obama America's first "black president."  So what that he didn't know his father?  So what that his father bedded and illegally wedded Barack's mother?  So what that his father's influence in his life is an after the fact construct for a book ghost written for a future president by a past domestic terrorist?

Bob Goodlatte vs. Alexander Hamilton: Why Obama Can Be Impeached 

That Goodlatte believes that the basis for impeaching Obama does not exist leaves me with a dread sense that the one truly representative body of our federal government is captained by the ignorant or the damned.

Senate Prefers Pandering Over Responsibilities of Office 

Not heard in the background of that noise are the soft crunching of gravel under boots as American service members walk into, through and beyond dangers on virtually every continent.  Ignored in the press to do this entirely sophistric act of legislative Kabuke theater are the pleas of communities along the southern border to act to reduce the tidal wave of illegal entries into the United States, along with the warnings of those with reason to know that the flood is not just of those seeking a better life here, but also includes, or is at risk of including, those who meld into the flood, so that, on entry into the best and brightest hope of mankind on earth, they can bring terror to the people whose interests have been sacrificed in the Senate in the interest of partisan politics.

A Tale of Two Courts 

With news of federal appeals court decision out of Washington, DC, in the morning on July 22nd, I thought, "this is the best of times."  By the time the day had ended, and word came of another appeals court's decision on the same issue out of Richmond, Virginia, I thought "this is the worst of times." 

A Modern Fable

The Fable of the Lazy Security Guard 

A man stood outside the bank.  He had a gun, and a handwritten note demanding 100,000 dollars in small, nonsequentially number bills. An alert security guard stood inside the bank, behind a locked door. Having been alerted to the pending robbery attempt, he had locked the door.  He refused to open it.

The would-be robber's presence came to the attention of a bystander, who heard the robber banging on the bank door and demanding admittance to the bank.

"What's going on," the bystander asked.

"This darn security guard," replied the would-be robber, tucking his gun into his waistband to avoid detection, "he won't open the darn door and let me in.  I want to make a withdrawal!"

The bystander, thinking he correctly perceived the circumstance as being one in which the unbeknownst to him would-be robber was, he thought, a valued customer of the bank, became belligerant and directed his loudly projected voice at the door and the security guard behind it.  "Open the door, damn it all to hell, people have business in there, and you need to start doing your job!"

A crowd gathered.

They saw the bystander taking up the cause of the robber, and heard him chastening what now seemed to be, to their perception, the indolent, shiftless, lazy security guard for "failing to do his job."

Finally, seething with indignity, the bystander took a crowbar, prized open the door of the bank whereupon the would-be-robber became a robber in fact.  As it happened, he was able to clean out the vault at the bank, including all the safety deposit boxes.

The next week, a hue and cry arose as account holders began to receive notices that their payments were being reversed for NSF (insufficient funds).  A few were further dismayed when they discovered the loss of important personal valuables, even items they planned to bequeath to their children, now long gone from the vault.

The Moral of the Story:

Sometimes, doing "nothing" is doing your job.  Sometimes, bystanders who criticize others for doing "nothing" are blithely ignorant of duty and honor.  And sometimes, when you think that someone has a valid moral claim on the property of others, they do, in fact, not have such a claim.

Obama's Cookin Up Trouble in the Constitution Kitchen, Boehner is No Gordon Ramsay

For some, Kitchen Nightmares is a show they love to hate; for others, it is a show they hate to love. The premise is simple:  a restaurant is falling apart, chef Gordon Ramsay comes to the rescue after receiving a videotape from the owner or others describing the current decline (and sometimes the former glories) of an eatery.

Ramsay arrives on the scene, samples the fare (I am fairly sure that I have never seen him compliment a single dish served at this point in the drama), meets owners and staff, and then watches a prime service, whether it is the dinner service, or Sunday brunch or the like.  All hell breaks loose.  A chef becomes indignant, or an owner, or an owner-chef.

Rat droppings are found aplenty.  Molded food is found in the cold storage.  A commercial kitchen stove only works half the time.  And to top it all off, either the decor crawled out of the belly of a sick animal, or the atmosphere is a confusing mishmash of cutesy homeyness and uncomfortable seating.

In the end, Ramsay cajoles the angered chef or owner back inside, gains a tearful commitment to progress and change, and then rub-a-dub-dub, the place gets a scrub, a make over, and an updated menu!  By the hour's end, we have the impression that all can actually be well again.

So, look, if you don't like the Constitution, you can do the Kitchen Nightmare approach.  In constitutional terms, the Gordon Ramsay treatment for the US Constitution is to amend or repeal it. Doing so is as formulaic as Kitchen Nightmares.

That's the kind of thing pro-lifers have been hearing for years, ever since Harry Blackmun invented the right to dismember your own child while it is alive inside of you.  So here we are, living under a Constitution.  One that gives Congress NOT THE PRESIDENT plenary power to regulate migration into the USA.  So, if Obama wants to wrest that power from Congress all he has to do, and the only thing he has to do, is amend the Constitution.

Now as a "professor of constitutional law," I'm sure that was perfectly understandable for Professor Obama.  So, when Congress did NOT enact the DREAM Act -- a proposal that would have deferred deportation action for applicants brought to the US before their 16th birthday that had continued their education, gotten work, and avoided serious criminal law issues -- Obama could have said, "I'm tired of Congress not doing its job ... let's amend the Constitution so that I have the power to enact laws without Congress."

He didn't do so.

Instead, he issued an Executive Order on DACA, Deferred Action on Childhood Arrivals.  That Executive Order simply adopted key features of the DREAM Act as regulations. VOILA!  Just add Obama, no Congress necessary.  Now there isn't even any need for cooks in the kitchen.

When a madman enters your kitchen and begins cooking up mudpies and grass soup, you have a few options for addressing the situation.  And when a President enters a field belonging solely to Congress, it has a few options for addressing the situation.  For the trespassory Sham Chef, the solutions include calling the police to remove him, removing him yourself, and letting him run the kitchen.  For the trespassory president, there are the options of embarrassing him through the public exposure of oversight hearings, hamstringing him by the discipline of a restricted budget, or impeaching him.

So, when the Executive Chef of the House kitchen, John Boehner, tells America that tossing the Sham Chef out (impeaching him) is not on the table, but that suing the Sham Chef is a best option, you need to think about hiring a new Executive Chef.  After all, the Sham Chef is cooking away in the kitchen, creating havoc reminiscent of the scene In "Close Encounters of the Third Kind" where Richard Dreyfuss is pulling up hedges and dirt and throwing them into his kitchen to make his mud mountain rendition of Devil's Tower.

After Thursday evening, perhaps Boehner is giving thought to passing his jaunty Chef's cap along to another.

On Thursday evening, House leaders cancelled a vote on an emergency bill to fund activities responding to the border immigration crisis that has been much in the news of late.  CANCELLED.  Some headlines suggest that the House is in disarray.  The AP report explained that Representative Peter King, of New York, among others, laid the blame squarely at the feet of ... Senator Ted Cruz.  Strange, isn't it, that a man who doesn't have the privilege of the floor in the US House, a man who chairs no committee in the House, is made to be the conquistador of House Republicans.

So what was it that Senator Cruz did?

He invited House Republicans over for pizza.

While I'm certain the pizza was delicious (what pizza isn't?), I doubt that Senator Cruz doped the pizza and drugged his guests.  I'm thinking, and it is a guess, that what Senator Cruz did was meet with those Representatives who shared his concerns about executive overreach by Obama, about violation of Congress' sole prerogative regarding immigration.  In that meeting, he pitched to them the idea that no emergency border funding legislation should pass the House unless it expressly DEFUNDED Obama's lawless and unconstitutional Deferred Action for Childhood Arrivals activities.

Such a quid-pro-quo would make sense.  It applies budgetary discipline short of impeachment to a crass and clumsy overreach by Obama into an area of plenary congressional authority.  It gives the Administration funds to deal with the mess that the Administration has created by lax enforcement of borders and by enticing children to America with the Pied Piper promise of Deferred Action.

Apparently, Chef Boehner would have none of it, and without the DACA defunding provision, his sous chef Republican majority refused to cook up a dish that only the Democrats could ingest with pleasure.

DREAM Act Birds Come Home to Roost

This post is not on the question of whether America is better off or worse for its sieve-like southern border.  It's not about whether all persons not lawfully in the US should be rounded up and deported. It is about the dangerous condition in which our Republican House of Representatives has left the Nation by ignoring President Obama's decision to usurp the exclusive power of the Congress to provide a uniform law of naturalization.

Obama's imposition of the provisions of the DREAM Act -- by executive order because Congress did not approve it -- should have resulted in impeachment. Instead, Congress sits idly by, leaving the States to the various depredations that will follow.  This blog post is about one of those depredations:  a decision by the US Court of Appeals for the Ninth Circuit holding that Arizona is likely violating the equal protection rights of individuals who have obtained deferred action under Obama's unconstitutional Executive Order.

In an appeal from a trial court's decision refusing to interfere in Arizona's enforcement of its motor vehicle licensing laws, the US Court of Appeals for the 9th Circuit has concluded that Governor Jan Brewer and the State of Arizona are likely violating the equal protection rights of individuals granted deferred action status under Obama's executive adoption (i.e., unconstitutional adoption) of the DREAM Act.

The equal protection violation results from the State's decision, based on the Governor's Executive Order, not to issue motor vehicle operator's permits to individuals whose proof of legal status in the US is based on the documents evidencing the federal government's grant of deferred action.  The State of Arizona does grant motor vehicle operator's licenses to individuals whose proof of legal status consists of documents showing the grant of deferred status under other (congressionally adopted) (constitutional) deferred action programs.

Set aside the question of what to do about unregulated migration into the United States.  Set aside the dispute over so-called anchor babies.  Set aside the question of whether the States should all kowtow to federal standards for their issuance of motor vehicle operator's permits (a peculiarly State function).

Here we have a President that has decided to act like Congress has passed a law that it hasn't.  There is no law on the book adopting the proposed terms of the DREAM Act.  If Congress chose to enact the DREAM Act, the Constitution's terms make Congress's judgment about naturalization beyond the purview of the President.  Congress hasn't enacted the DREAM Act.

Instead, Obama, whose behavior as unitary Executive/Legislative/Judiciary of the United States, has simply issued an executive order directing that ICE and DHS act as though Congress had enacted the DREAM Act.

From that unconstitutional act, we proceed to the preposterous decision of the 9th Circuit.  Arizona refuses to pretend that Obama's Executive Order has the force and effect of federal law.  So it concludes for itself that the use of documents proving deferred action under the unadopted DREAM Act does not satisfy Arizona's standards for proof of lawful presence in the United States.  On  this determination, the 9th Circuit bases its conclusion that Arizona likely violates the Equal Protection rights of those residing in Arizona that have obtained deferred action status from this Administration.

Did you follow all that?

Summed up:  Obama imposed an executive order (unconstitutionally) in an area of federal law and policy that belongs exclusively to Congress (naturalization).  Arizona, which, like each State, has the public health and safety justification to impose licensing requirements and does so, has established a standard for proving lawful presence in the US that does NOT accept the exercise in unconstitutional power undertaken by Obama.  The 9th Circuit then concludes, not that Obama is acting illegally and Arizona is not bound by his unconstitutional actions, but that Arizona is likely violating the rights of those whose legal presence in the United States has not been obtained by Act of Congress.

We are three days past Independence Day.  I hope, nonetheless, that you will recognize that usurpation of legislative authority by King George III constituted the principal basis for our rebellion against English tyranny.  Obama's tyranny is no less offensive to the republican self-government to which our Declaration aims, our State Constitutions frame, and our National Constitution commits.