Jurisdiction Stripping to Limit Court Power

US Constitution, Article 3, Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The US Constitution includes a short clause that allows congress to exempt a law it passes from judicial review. Federal courts have jurisdiction to review laws that congress passes with “with such Exceptions and under such Regulations as the Congress shall make.” [1]

Unless I misunderstand because there is a legal authority that defines ‘Exceptions’ and/or ‘Regulations’ in a way I am not aware of, that clause seems to give the president and congress the power to write and pass a law with a provision that states that courts do not have the power to review the law. Thus, for example, congress could write a law that codifies the Roe v. Wade abortion decision and/or the Obergefell v. Hodges same-sex marriage decision as a federal law that is not subject to judicial review for its constitutionality. This tactic is called jurisdiction stripping.

If that is how this can work, one can instantly see the havoc this could wreak on American society and the operation of the federal government. A radical conservative president and congress congress could write and pass laws to restrict voting rights or to expand gun rights and that law could be shielded from judicial review. A liberal president and congress congress could write and pass laws they wanted.

In 1982, a young lawyer and now chief justice of the US supreme court, John Roberts wrote a detailed legal analysis as part of an evolving radical conservative legal strategy to try to undo Roe v. Wade, public school desegregation and other social trends that conservatives hated then and still hate today. Roberts wrote that the constitution contains “clear and unequivocal” language that gives congress the power to shield laws from Supreme Court review. One can now understand why George W. Bush nominated Roberts to be the chief justice on the Supreme Court.

Now that radical conservatives dominate the Supreme Court, liberals are considering using this constitutional clause to shield laws that liberals would like to see passed and protected from endless court battles. Liberal are also considering expanding the supreme court and packing it with liberal judges and imposing term limits on Supreme Court justices, both of which seem to be problematic and will likely further polarize American politics. 

What seems to be happening now

The decades-long radicalism of powerful conservatives and their rigid unwillingness to accept demographic and social change they hate and reject runs deep and powerful. Their desperate, slowly losing fight against modernity and social change has led them to the malicious and deeply immoral political space they now occupy. Many radical conservatives have come to realize that reliance on facts, truth, sound reasoning and reasonable compromise, an honest clean fight of ideas, will not stop the changes they what stopped. They will lose if they play politics fairly, respectfully and transparently. In the process of protecting their version of America, radical conservatism has become dishonest, immoral, authoritarian and opaque. Authoritarianism and opacity is discussed here. 

In reaction to how dirty and nasty the right has played to get us here, the left is now considering some of the same authoritarian tactics the right has considered or used. The difference between the two sides today is that the radical right is mostly an exclusive white minority trying to impose its will on an unwilling majority, while the left is generally trying to rule in the name of the majority. The years of RINO hunts in the GOP has drained that party of ideological diversity and at the same time, racial diversity. In one sense, the GOP is a spent force that is cornered, enraged and extremely dangerous. Its willingness to resort to authoritarianism, immorality, lies, deceit and so forth seem to be provoking at least some similar responses on the left.

In essence, modern mainstream radical conservatism is dragging American society and governance down into dark, immoral places. We may not be able to save civil society, democracy, civil lib or the rule of law.

Information source: Bloomberg Businessweek

Footnote: 

1. Caveat: The preceding phrase,  In all other Cases before mentioned, may somehow limit the kinds of laws that are subject to jurisdiction stripping. 

A Russian October Surprise Has Arrived!

Peek-a-boo!

We all knew it was coming. Well, here it is. Well, at least here is one. The Russians appear to have fabricated evidence about the illegal Biden activity in Ukraine. The Russians used the clueless, corrupt Rudy Giuliani as the conduit to help inject the Russian poison into American politics. The radical right propaganda and lies source, the New York Post ate it up and published the lies.[1] 

Now, the president, and his enablers and supporters can smear Biden with fabricated evidence. It was only a matter of time before the radical right could no longer contain itself and would resort to faked evidence to attack and smear political opposition, especially Joe Biden.  

The Washington Post writes: 

"The intelligence agencies warned the White House late last year that Russian intelligence officers were using President Trump’s personal lawyer Rudolph W. Giuliani as a conduit for disinformation aimed at undermining Joseph R. Biden Jr.’s presidential run, according to four current and former American officials.

The agencies imparted the warning months before disclosing publicly in August that Moscow was trying to interfere in the election by taking aim at Mr. Biden’s campaign, the officials said. Mr. Trump and Mr. Giuliani have promoted unsubstantiated claims about Mr. Biden that have aligned with Russian disinformation efforts, and Mr. Giuliani has met with a Ukrainian lawmaker whom American officials believe is a Russian agent.

The warning, the second former official said, was prompted by a meeting on Dec. 5 between Mr. Giuliani and Andriy Derkach, a Ukrainian member of Parliament who takes pro-Kremlin positions. The Treasury Department recently labeled him “an active Russian agent for over a decade,” disclosing that he maintained ties to Moscow’s intelligence services as it imposed sanctions on him in September.

Mr. Derkach has been releasing tapes of the former vice president’s conversations with Ukrainian officials. American officials said those tapes had been edited in misleading ways.

Mr. Giuliani has made multiple trips to Ukraine to gather material that is damaging to the Biden campaign, and his December visit came as he tried to shift the political conversation from impeachment proceedings against Mr. Trump to unsubstantiated claims about Mr. Biden’s wrongdoing.

Mr. Giuliani’s work seized attention in the presidential race again this week when The New York Post published articles about Mr. Biden and his son based on material Mr. Giuliani provided. The Biden campaign rejected the reports, and Facebook and Twitter deemed them so dubious that they limited access to them.

The New York Times has not been able to verify the information that Mr. Giuliani furnished to The Post, which he said came from a laptop left at a Delaware repair shop. The owner of the shop has given conflicting accounts to reporters, and Mr. Giuliani’s acquisition of the laptop has raised questions about the material on it.

In August, the Office of the Director of National intelligence said in a statement that Mr. Derkach was spreading disinformation about Mr. Biden. The C.I.A. later issued a more detailed classified warning in its Worldwide Intelligence Review, a secret document read by members of Congress and the administration."

Time will tell if this attack on Biden is based on real or fake evidence. Given the disregard for truth that Giuliani has shown in his loyalty to the president, it is reasonable to think that (i) this is a Russian disinformation ploy, and (ii) Giuliani is a stooge the Russians are using to undermine Biden's campaign.

Footnote: 

1. The NYP article includes this sleaze: 

"Other material extracted from the computer includes a raunchy, 12-minute video that appears to show Hunter, who’s admitted struggling with addiction problems, smoking crack while engaged in a sex act with an unidentified woman, as well as numerous other sexually explicit images.

The customer who brought in the water-damaged MacBook Pro for repair never paid for the service or retrieved it or a hard drive on which its contents were stored, according to the shop owner, who said he tried repeatedly to contact the client.

The shop owner couldn’t positively identify the customer as Hunter Biden, but said the laptop bore a sticker from the Beau Biden Foundation, named after Hunter’s late brother and former Delaware attorney general."

Political profiling…

 

I know (at least I believe) it’s morally wrong to racially/ethnically/sexually profile, and I am especially aware to try not to do that.  But is it also morally wrong to politically profile?  Because I will admit, right or wrong, I do that. :(

REPUBLICANS

I see the designation “Republican” and I immediately think things like: Money-oriented, less empathetic, more self-centered/selfish, less science-oriented, short term benefits over long term benefits.

DEMOCRATS

I see the designation “Democrat” and I immediately think things like: Civically-oriented, more empathetic, more other-centered/selfless, more science-oriented, long term benefits over short term benefits.

Granted, there are always exceptions to judgment-type (non-data driven) rules, but I am speaking/defining in generalities here.

*          *          *

So let’s start building some working lists.  Then we can challenge each other’s claims:

-Please list as many Republicans as you see fitting under my Republican definition above.

-Please list as many Democrats as you see fitting under my Democrat definition above.

-Please list as many politicians that do not fit under my profiled definitions above.  (I.e., D’s that “behave” like R’s, R’s that “behave” like D’s.)  Prove me wrong and help me find exceptions to my admittedly biased rules.

Thanks for posting and recommending.

Insider Trading Opportunities for Trump Supporters

Larry Kudlow (director of the National Economic Council) lied to the 

American people in February, falsely telling them the

 coronavirus was contained in the United States 

and that “it’s pretty close to airtight”

Back in February, when the Trump administration was lying to the American people about the pandemic being cully contained and under control, administration officials were privately telling board members of the radical conservative Hoover Institution that they were worried that the pandemic would spin out of control. This information  leaked to some Wall Street traders and they traded on the information. 

The New York Times described the response of one trader like this: “‘Short everything,’ was the reaction of the investor, using the Wall Street term for betting on the idea that the stock prices of companies would soon fall.”

The NYT writes about how traders were informed that the situation was potentially far worse than the American people were being told:

“On the afternoon of Feb. 24, President Trump declared on Twitter that the coronavirus was “very much under control” in the United States, one of numerous rosy statements that he and his advisers made at the time about the worsening epidemic. He even added an observation for investors: “Stock market starting to look very good to me!”

But hours earlier, senior members of the president’s economic team, privately addressing board members of the conservative Hoover Institution, were less confident. Tomas J. Philipson, a senior economic adviser to the president, told the group he could not yet estimate the effects of the virus on the American economy. To some in the group, the implication was that an outbreak could prove worse than Mr. Philipson and other Trump administration advisers were signaling in public at the time.

The next day, board members — many of them Republican donors — got another taste of government uncertainty from Larry Kudlow, the director of the National Economic Council. Hours after he had boasted on CNBC that the virus was contained in the United States and “it’s pretty close to airtight,” Mr. Kudlow delivered a more ambiguous private message. He asserted that the virus was “contained in the U.S., to date, but now we just don’t know,” according to a document describing the sessions obtained by The New York Times. 

The consultant’s assessment quickly spread through parts of the investment world. U.S. stocks were already spiraling because of a warning from a federal public health official that the virus was likely to spread, but traders spotted the immediate significance: The president’s aides appeared to be giving wealthy party donors an early warning of a potentially impactful contagion at a time when Mr. Trump was publicly insisting that the threat was nonexistent. (emphasis added)

Interviews with eight people who either received copies of the memo or were briefed on aspects of it as it spread among investors in New York and elsewhere provide a glimpse of how elite traders had access to information from the administration that helped them gain financial advantage during a chaotic three days when global markets were teetering.

But the memo’s overarching message — that a devastating virus outbreak in the United States was increasingly likely to occur, and that government officials were more aware of the threat than they were letting on publicly — proved accurate.”

A couple of points merit comment. First, the Trump Administration wants to protect wealthy republicans. Last February, it did that by giving those people inside information that they could trade on to protect themselves in advance of the stock market drop the pandemic caused. Second, some or most of those informed people did not hesitate to use that information to protect themselves and make money at the expense of people who did not have the same information. There was no moral qualm about illegal insider trading. In general, stock traders do not have any moral values other than profit.

Now, in October, there is almost no possibility that any person who traded on this non-public information will be prosecuted for insider trading. The Trump Administration will protect its own one way or another. Most likely, this little incident of corruption and moral sleaze will simply be dismissed as not insider trading, even though that is exactly what it was. If it was legal, that raises this question: Why limit this to elite radical conservatives? Why not tell all Americans that the government believed the pandemic could easily spin out of control and cause massive economic damage? 

When it comes to the corrupt, morally bankrupt Trump Administration, there is no reason to accord it the benefit of any doubt about sleaze like this. The track record of corruption, lies and deceit is clear and undeniable.

This is an example of how the rule of law now fails to work when applied to republican elites and probably wealthy people in general. The rest of us are still required to obey the rule of law, while the elites can do whatever they want, legal or not.