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.

The 2020 Census: I Think We Are Bring Lied To

Yesterday, I posted a short discussion on the US Supreme Court allowing the census to end early. That is despite the slowdowns in counting that the pandemic has caused. Apparently, the president and GOP strategists have concluded that ending the census early helps them to undercount democrats and minorities.

I have become aware of increasing evidence that the Census Bureau is lying to the American people by faking the count data and undercounting housing units in areas that it claims have been 99.9% counted.

Data point 1

The first piece of evidence came from the US Census Bureau itself. The US Census Bureau is reporting that the overall census is 99.9% complete for housing units in the US. Only two states for which data is shown have lower reporting rates, 98.3% for Louisiana and 99.4% for Mississippi. Data is shown for states listed alphabetically through Pennsylvania. Thus states such as Texas and Washington state are not listed. 

What this data does not indicate is how many people are still uncounted. And, why are nearly all states at 99.9% reporting? The data seems as if it is fudged to make the census look more complete than it really is.

Something smells over-ripe fishy. I think the Census Bureau, specifically Trump, is lying to the American people. The data consistency the Census Bureau reports is simply not believable. Data like this cannot be that consistent at 99.9%. This is fake data. This feels like amateurs with no knowledge of statistics or lying about data has faked the data.

Disclaimer: I could be wrong here. My suspicion is based on my decades of research and work with complex biological systems. Complex biological systems, including census counts, are usually noisy and usually rather imprecise at the level of three significant digits (99.9). Is there a statistician in the house? 

Data point 2

The San Diego Union Tribune (SDUT) reports today that the census response rate in some San Diego neighborhoods is less than 50%. The San Diego city population is about 1.1 million and the county population is about 3.5 million. The SDUT writes: 

“Most households in nearly 20 San Diego-area neighborhoods have not responded to the 2020 census and will no longer be able to following a U.S. Supreme Court decision Tuesday to end the once-a-decade count.

According to the U.S. Census Bureau, 20 census tracts in San Diego have a response rate below 50 percent. The northwest corner of Oceanside had the lowest response rate, with just 27 percent of households responding as of Tuesday.

In an area of Mission Beach and Mission Bay Park, about 32 percent of households have responded. 

They’re followed by College West with 33 percent and Borrego Springs with 35 percent.

The U.S. Supreme Court on Tuesday halted the head count to allow the Census Bureau time to produce an accurate count. The ruling is the latest in a roller coaster of decisions on the 2020 census, which lower courts previously argued should continue through the end of October. 

Activists, who have spent the last several weeks encouraging responses from San Diego’s “hard-to-count” communities, say they feel defeated by the court’s decision.

“We are very disappointed, to say the least, with the court’s decision because there’s no reason to stop it,” said Arcela Nuñez-Alvarez, co-director of the nonprofit Universidad Popular, a nonprofit that does census outreach to rural communities. 

Many advocates had hoped to have until the end of the month to continue encouraging people to fill out the census, especially in areas with low response rates, she said.”

Data point 3

Some other information I've seen suggests that the 99.9% response rate is a deflection from the people count to the “household count”, including this map from the US Census Bureau. Note the comment: “But that may not mean the count is complete or accurate.” 

I now believe that we are being lied to.

And, there is the map shown below that the Census Bureau has put out. The map is interactive and you can click on an area to see the accumulated data. It does not always match the Oct. 13 99.9% data. For example, Montana is shown below as 99.7%, not 99.9% as shown under that graphic. Or do such data discrepancies mean nothing? If it wasn’t the Trump administration, the benefit of a doubt might be warranted. But since it is the chronic liar Trump administration, in my opinion a benefit of any shred of doubt is not warranted. The burden is on the Census Bureau to prove their honesty, not on me to prove their dishonesty.

 

What GOP Activists Really Think: It is Very Ugly

Charlie Kirk, 26 year-old GOP radical activist

On the pandemic: “Like, it’s a great thing.”

The Washington Post obtained dozens of hours of taped meetings in February and August among conservative activists. What is in their minds is terrifying and dangerous. The WaPo writes:

.... a fresh-faced Republican activist named Charlie Kirk stepped into the spotlight at a closed-door gathering of leading conservatives and shared his delight about an impact of the coronavirus pandemic: the disruption of America’s universities. So many campuses had closed, he said, that up to a half-million left-leaning students probably would not vote.

“So, please keep the campuses closed,” Kirk, 26, said in August as the audience cheered, according to video of the event obtained by The Washington Post. “Like, it’s a great thing.”

The gathering in Northern Virginia was organized by the Council for National Policy, a little-known group that has served for decades as a hub for a nationwide network of conservative activists and the donors who support them. Members include Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Leonard Leo, an outside adviser to President Trump who has helped raise hundreds of millions of dollars from undisclosed donors to support conservative causes and the nominations of conservative federal judges.

The videos, recorded by CNP to share with its members, show influential activists discussing election tactics, amplifying conspiracy theories and describing much of America in dark and apocalyptic terms.

“This is a spiritual battle we are in. This is good versus evil,” CNP’s executive committee president, Bill Walton, said on Aug. 21, addressing attendees at the Ritz-Carlton in Pentagon City. “We have to do everything we can to win.”

Tom Fitton, president of Judicial Watch, told attendees that same day that the left is “war-gaming” a plan to delay the election tally until Jan. 20, 2021, and enable House Speaker Nancy Pelosi (D-Calif.) to become acting president. “This is kind of like crazy talk” among political people, Fitton said. But he added: “This is not an insignificant concern.”

Tom Fitton, president of Judicial Watch, told attendees that same day that the left is “war-gaming” a plan to delay the election tally until Jan. 20, 2021, and enable House Speaker Nancy Pelosi (D-Calif.) to become acting president. “This is kind of like crazy talk” among political people, Fitton said. But he added: “This is not an insignificant concern.”

Expressing concern about voter fraud and disenfranchisement, Fitton called on the audience to find a way to prevent mail-in ballots from being sent to voters. “We need to stop those ballots from going out, and I want the lawyers here to tell us what to do,” said Fitton, whose organization is a tax-exempt charity. “But this is a crisis that we’re not prepared for. I mean, our side is not prepared for.”

In an interview with The Post, Fitton elaborated on his remarks. “The left has war-gamed this out,” Fitton said. “And it could cause civil war.”

Brent Bozell, a CNP executive committee member and founder of the Media Research Center, another tax-exempt charity, told attendees at one of the August sessions that he believes the left plans to “steal this election. .... And if they get away with that, what happens?” he said. “Democracy is finished because they usher in totalitarianism.”

At the February meetings, attendees discussed plans for seeking an advantage in the upcoming vote. Two said the right will begin “ballot harvesting,” a controversial technique that involves the collection and delivery of sealed absentee ballots from churches and other institutions.

At the time of the meeting, Trump, his campaign officials and other Republicans were blasting the practice as an abuse by Democrats. “GET RID OF BALLOT HARVESTING, IT IS RAMPANT WITH FRAUD,” Trump tweeted this spring.

But Ralph Reed, chairman of the nonprofit Faith & Freedom Coalition, told the CNP audience that conservatives are embracing the technique this year.

“And so our organization is going to be harvesting ballots in churches,” he said. “We’re going to be specifically going in not only to White evangelical churches, but into Hispanic and Asian churches, and collecting those ballots.”

J. Christian Adams, a former Justice Department official and the president of the Public Interest Legal Foundation, a charity, described mail-in voting as “the number one left-wing agenda.” Adams urged the activists not to worry about the criticism that might come their way. “Be not afraid of the accusations that you’re a voter suppressor, you’re a racist and so forth,” Adams said. In response to questions, Adams wrote in an email: “I stand by what I said because it is accurate.”  

Two tax law specialists who viewed hours of video at The Post’s request said some of the remarks and planning on the videos could be improper for the groups that are registered with the IRS as charities.

“What was jarring was that it was pretty clear to any reasonable observer that the entire purpose of the panel was to help the Republican Party win in November, up and down the ticket,” said Roger Colinvaux, director of law and public policy at Catholic University’s law school, referring to a panel about health care.  

Marcus Owens, a lawyer who led the Exempt Organizations Division at the IRS from 1990 to 2000, told The Post that participants’ comments on the videos raise potential issues of compliance with election laws and charity rules. “I’ve never seen anything like it on videotape and live,” Owens said, referring to the overt partisan coordination among the nonprofit leaders. “It’s almost like a movie.”

This is absolutely amazing and terrifying at the same time. The right sees impending totalitarianism if democrats win elections. But at the same time, they are 100% blind to the real threat of a demagogic dictatorship that the president is seriously trying to build in America right now. Incredibly, the radical right does not consider massive voter suppression to be authoritarian. The hypocrisy and lies are staggering.

The extent to which the GOP and apparently most conservative elites have swallowed the decades of radical right propaganda and lies is clear and undeniable. These people really are living a dangerous and aggressive Christian authoritarian fantasy. This is more evidence that any means, legal or not, justify sacred white Christian ends for what probably most GOP elites are willing to lie, slander and break laws to achieve.