Tuesday, February 28, 2017
A Federalist 57 Website
D. R. ZUKERMAN, proprietor

Does the Ninth Circuit plus
“Irreparable Harm” Theory Equal
A Ceremonial President?

 

February 19, 2017 --

The temporary ban by U.S. District Judge James L. Robart (W.D. Washington) on enforcement of President Trump’s executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” rested on the judge’s view that the plaintiffs were “’likely to succeed on the merits’”; would be “’likely to suffer irreparable harm in the absence of preliminary relief’”; had “’the balance of equities’” in their favor; and, “’an injunction is in the public interest’.”

The action was brought by the State of Washington against President Donald J. Trump, and others. Washington State is in the Ninth Circuit. Washington was joined by the State of Minnesota—which does not lie within the Ninth Circuit.

Federalist Paper No. 69 suggests, at least to LPR, that a sitting president is not amenable to legal process. Alexander Hamilton explained that under the Constitution, only after impeachment and removable from office is the former president “liable to prosecution and punishment in the ordinary course of law.” In the Steel Seizure Case, for example, the defendant was the commerce secretary, not President Truman.

Perhaps the case of “U.S. v. Nixon” did away with the constitution’s distinction between a president and a former president impeached and removed from office. (For an argument opposing the standing Judge Robart accorded Washington and Minnesota, see David B. Rivkin Jr. and Lee A. Casey, “The Ninth Circuit Ignores Precedent and Threatens National Security”, Wall Street Journal, February 11-12, 2017.)

For present purpose, LPR will focus on the “irreparable harm” rationale of Judge Robarts. Redeye Radio hosts Eric Harley and Gary McNamara suggested, in the early hours of February 10 that as a result of the action of Judge Robarts, backed by a three-judge Ninth Circuit Court of Appeals panel, judges could now ban a declaration of war by Congress. Indeed.

What would prevent California going to a U.S. district court in the Golden State to assert that a declaration of war against ISIS is liable to cause “irreparable harm” to residents of California in the armed forces of the United States, ordered to risk life and limb in the war on ISIS.

(And can anyone doubt that this war would be deemed by the left as a War on Islam?)

And why limit the theory to terrorism or military conflict? Chief Justice John Marshall, in McCulloch v. Maryland, 4 Wheat. 316 (1819) noted that “the power to tax involves the power to destroy”. It should not take an “ingenious mind” to bring an action seeking an injunction to block tax measures brought by the Republican-dominated Congress, at the behest of President Trump, to a judge in the Ninth Circuit that adds “irreparable harm” to Marshall’s words on the destructive power of taxation.

What is to be done? First, LPR proposes that Congress codify Hamilton’s suggestion in Federalist No. 69 that a sitting president is not liable to legal process. (Perhaps by removing “Donald J. Trump” from the caption of lawsuit – while he is president – would dampen, somewhat, leftist zeal to rush to court to block his actions.) Next, individual state should not be empowered to throw a monkey wrench into the federal system. Wasn’t this a major problem with the Articles of Confederation that the Constitution was intended to correct?

LPR proposes that a majority of states must join in a lawsuit against the federal government resting on the “irreparable harm” theory. Lastly, if presidents are to remain subject to legal process, Congress should remove jurisdiction of such cases from the district and appellate courts and give to the Supreme Court of the United States original jurisdiction on actions brought against the president.

Absent such corrective measures, the “irreparable harm” argument could give the nation Rule by Judiciary, with the president reduced to a figurehead, issuing proclamations announcing holidays like Thanksgiving Day – but perhaps not even left with the power to pardon the turkeys.

 

Red Line

A 2018 Political Prediction From LPR

February 19, 2017 --

Democrats are politically incapable of coming to grips with the lessons of 2016.

(And certainly unwilling to accept the teaching of Richared M. Nixon on the self-destructive power of hate.)

Here and there, as indicated by Frank Bruni’s New York Times column, February 12, 2017, some Democrats realize that a presidential campaign based, in the main, on hating the opponent does not form a political message to rally people around. But only some.

And even they, the Bruni column implies, do not acknowledge that the Democrats not only demonized their opponent, but condescendingly dismissed the plain people as “deplorables,” as well.

Yes, the media will continue to denounce Trump and Trumpers, and play up any indication of anti-Trump protest as a looming Maidan coup – and, in 2018, the plain people of the nation will elect a Senate with 63 Republican members or more, and GOP numbers in the House of Representatives will edge toward 300.

(And by 2020, the Democrats will decline, further, to be the U.S. version of Britain’s Liberal Party.)

 
"A vote that represents free will is never wasted"
-- David Zukerman
 

Red Line

Should We Re-read
“Seven Days in May?”

February 19, 2017 --

Lately, leftists have been promoting novels that warn about the end of democracy in America. To LPR’s knowledge, there has been silence over suggestions from the left that a military coup will be needed to save the country from Trumpism. LPR, therefore, would suggest that patriots re-read “Seven Days in May, ” by Fletcher Knebel and Charles W. Bailey II – or get the film version, starring Burt Lancaster and Kirk Douglas.

For present purpose, LPR will just note Ariel Dorfman’s opinion piece, in the February 12 “Sunday Review” section of The New York Times, asserting, so wrongheadedly, that the United States “ is now governed by men who would [rule by] repression rather than persuasion…. “

Retired Professor Dorfman concluded his reflections with these words: “…if we are brave enough, resourceful enough, imaginative enough, then nothing in this miraculous world is impossible.” Indeed so –ergo: President of the United States Donald J. Trump.

On the Ruling, Reeling, Elite

From Michael Goodwin, New York Post, February 12 --

"[T]he hysterical hateful reaction in many quarters to everything Trump says and does is absolute proof that the ruling elite deserved a comeuppance.

The establishment was drunk on power, political and cultural, and never yielded an inch voluntarily or had the decency to admit error. Its rage reflects its sense of entitlement."

Goodwin went on to comment: "Modern liberals' contempt for others is essential to their sense of superiority and justifies violence in the streets, threats and simple rudeness."

 

Red Line

Presenting Tricky
Senator Charles E. Schumer

February 19, 2017 --

The fiercely anti-Trump Senator Charles E. Schumer wrote an opinion piece for the fiercely anti-Trump New York Times, February 12, expressing great annoyance that the president’s nominee to the Supreme Court, Judge Neil M. Gorsuch, refused to tell the senator that he would rule on cases according to leftist wishes.

This, of course, is the import of the tricky senator’s comments. Specifically, the senior New York senator and Senate Democrat leader pretended to agree that “a judicial nominee should not prejudge how he or she would rule in a specific case to come before the court…” And then the tricky senator said he asked Judge Gorsuch “whether an unambiguous Muslim ban would be constitutional.”

The tricky Schumer is apparently annoyed that the judge would not answer that improper question, nor would the nominee agree with the tricky senator’s apparent views that the “Citizens United” ruling should be overturned and that the president is threatening to “undermine our democracy.”

LPR to Tricky Senator Schumer: just go and vote against the nomination and cut the trickiness.

And by the way, in his column, “We Won’t Be Fooled Again, the tricky Senate Democratic leader claimed that as nominee to the Court, Chief Justice John G. Roberts Jr. “duped” Mr. Schumer into believing he would be “unbiased by both ideology and politics,” when, according to the tricky senator, Justice Roberts had ruled to shift “the power structure toward the privileged and away from the average American.”

Tricky Senator Schumer slams the chief justice by unwarranted attack; now what about the chief justice’s ruling in favor of Obamacare?

 

Red Line

LPR to President Trump

February 19, 2017 --

Recommend that you and your administration boycott “Meet the Press.” Why? Please read the following hugely insulting attack from Senator Sanders, joined in by Chuck Todd, copied from the February 12 program:

SENATOR BERNIE SANDERS:

Well, I say two things, right now we are in a pivotal moment in American history. We have a president who is delusional in many respects, a pathological liar, somebody who is trying to --

CHUCK TODD:

Those are strong words.

SENATOR BERNIE SANDERS:

-- divide us up.

CHUCK TODD:

Can you work with --

SENATOR BERNIE SANDERS:

Those are strong words.

CHUCK TODD:

Can you work with a pathological liar?

 

 
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Red Line

LPR Photo Observations

February 5, 2017 --

The Bronx on February 9th.
Lenox on February 9th.

 
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February 19, 2017 --

Correcting a Typo and other NYT matters ...

Previously, at LPR, the name of James Bennet , editorial page editor at The New York Times got garbled in “Disinformation, As LPR Saw It.” LPR regrest the garble, but not its conclusion.

And by the way, have you noticed that The New York Times did not have the editorial words to denounce the destructive demonstration at Berkeley that prevented the speaking appearance of a conservative?

LPR has “high confidence” that NYT’s silence at this act of leftist intolerance indicates its support for the masked thugs who make clear their understanding that free speech does not extend to those who oppose leftist views. Today’s left apparently takes its lead from O’Brien, Winston Smith’s torturer in Orwell’s “1984” -- “’Whatever the Party holds to be truth is truth.’"

 

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