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I hate to be the bearer of bad news, but Donald Trump’s executive order this week cutting federal funding to sanctuary cities might be unconstitutional. New York’s Mayor de Blasio has already threatened suit.
One objection is that Trump cannot demand that state and local officials be used to enforce federal law. That would be what’s called ‘commandeering’. The late Justice Antonin Scalia articulated the anti-commandeering doctrine in the 1997 case Printz v. United States. People on our side of the ledger have cited the doctrine to prevent the federal government from commandeering state employees to implement Obamacare. But now the shoe is on the other foot, and Trump’s order raises state’s rights and federalism issues. Another problem is that the federal government cannot place conditions on federal grants unless Congress explicitly states those conditions in a statute. Few, if any, federal grants are expressly conditioned on the statute outlawing sanctuary cities. For presidents to make up new conditions on their own and impose them on states without congressional authorization raises separation of powers issues. We may like Trump’s order, but imagine these powers in the hands of your worst political enemy. What if a future President Michelle Obama tried to force state employees to implement federal transgender rules in schools, or lose all their federal education funding? I am not deciding the case here tonight, merely flagging the issue for you. I’ll put the link the wrap-up if you want to explore the subtleties and nuances further. Whatever fate the sanctuary order meets, it will likely not be the end of the story. I anticipate Trump would find with some other way to deal with sanctuary cities – perhaps slow-walking grant applications without giving a reason, or cutting sanctuary cities out of his infrastructure plans. I don’t know precisely what he would do, but I do know Trump is a fighter and not likely to give up after the first round. The cities might end up regretting raising constitutional objections to Trump’s first order. They may like the actions that follow even less. Meanwhile, a sharp reader sent in an interesting footnote to last week’s Constitution Minute regarding the controversy over a statue of Chief Justice Roger Taney who wrote the Dred Scott decision. The footnote bears on current events. It turns out that President Andrew Jackson first nominated Taney to be Secretary of the Treasury. The Senate rejected him, so Jackson nominated him for Associate Justice of the Supreme Court. The opposition party responded by blocking the vote and moving to abolish the seat entirely. The seat was held open for a year and was eventually filled by someone else. Another seat came up when Chief Justice John Marshall died. Again, Taney was nominated, this time for Chief Justice, and both seats were filled on March 15, 1836. The reader asks: What if the Senate rejected Jeff Sessions for Attorney General? Would Trump nominate him to the Supreme Court? This little footnote to the Taney story shows how messy the nominations process can be. Links “Why Trump’s executive order on sanctuary cities is unconstitutional” https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/26/constitutional-problems-with-trumps-executive-order-on-sanctuary-cities/?utm_term=.e73f9c8fb3bf&wpisrc=nl_volokh&wpmm=1 NYC Mayor de Blasio threatens suit over Trump's sanctuary cities order http://www.politico.com/states/new-york/city-hall/story/2017/01/de-blasio-response-sanctuary-cities-exec-order-109048 Printz v. United States (U.S. Supreme Court, 1997) Taney story - https://en.wikipedia.org/wiki/Roger_B._Taney - https://en.wikipedia.org/wiki/Philip_Pendleton_Barbour#United_States_Supreme_Court_appointment “American Studies Professor: My Field is Now About Anti-Americanism” http://www.truthrevolt.org/news/american-studies-professor-my-field-now-about-anti-americanism “George Washington University Drops U.S. History Requirement — for History Majors!” http://bwcentral.org/2016/12/george-washington-university-drops-u-s-history-requirement-for-history-majors/ Texas radio station bans all Madonna songs for her “un-American sentiments” at the women’s march http://bwcentral.org/2017/01/madonna-gets-nasty-surprise-after-womens-march-speech/  Constitution Minute
from Tea Party Patriots January 22, 2017 There was an article this week about controversies in Maryland over statues of Roger Taney, the Chief Justice of the Supreme Court who wrote the opinion in the notorious Dred Scott case. Many consider the 1857 case the worst decision the Supreme Court ever made. It is remembered for upholding slavery. One part of the decision held that descendants of African slaves were not citizens and thus had no standing to sue in court. It went on to say that states that had abolished slavery could not free any slaves that made it to their territory because that would deprive slaveholders of their property rights. Dred Scott and his family were freed shortly after the decision anyway, but he died just 18 months later. A statue of Chief Justice Taney sits in front of the Maryland State House in Annapolis. It’s about double life-size. Taney is seated, with his arm resting on a book inscribed ‘The Constitution’. A bill was introduced last year to remove the statue and put it in storage. An architect in Annapolis, however, has proposed turning it into a teachable moment by placing a statue of Frederick Douglass, another Marylander, eyeball-to-eyeball with Taney. Douglass blasted the Dred Scott decision the day it came down. Next year is the 200th anniversary of Douglass’ birth. Likenesses of Taney are also causing controversies in Baltimore and Frederick, Maryland. Another bust of Taney is in the Great Hall of the United States Supreme Court in Washington. Links “Controversy Dogs a Late Chief Justice's Monument” http://www.nationallawjournal.com/home/id=1202776955920/Controversy-Dogs-a-Late-Chief-Justices-Monument?mcode=1202615432728&curindex=1&slreturn=20170022093541 Wikipedia page on the Dred Scott decision https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford Early Progs justified minimum wage as eugenics, to weed out the ‘unfit’ and keep them out of the work force https://fee.org/articles/how-to-get-progressive-students-to-understand-the-minimum-wage/  One of the reasons we have a Constitution is to ensure the Rule of Law. During his confirmation hearings, Senator Jeff Sessions said a number of times he would uphold the Constitution and follow the law as enacted by Congress and signed by the President.
While this is not a guarantee, it sure was nice to hear a nominee for Attorney General express fidelity to constitutional principles. Senator Ted Cruz, in his questioning, pointed out that the Holder/Lynch Justice Department has breached the Rule of Law in numerous instances – Fast & Furious (with Eric Holder defying a Congressional subpoena), the IRS targeting case (even putting an Obama donor in charge of the investigation), Operation Choke Point, sanctuary cities, releasing criminal aliens, supporting pen & a phone changes to Obamacare, and arguing in favor of unconstitutional recess appointments in court. In response, Senator Sessions said none of these actions were appropriate and all were corrosive to our Constitutional Republic. He actually said that – “Constitutional Republic”. Pinch me. Throughout the hearings, Sessions was asked a number of times if he would follow the law regardless of his personal feelings. He said he would with respect to abortion, access to abortion clinics, background checks for gun purchases, bulk collection of phone data by the government, birthright citizenship, and hate crimes legislation, among other things. Also, he would not commit to continuing the current practice of not enforcing federal marijuana laws, indicating that Congress should get rid of those laws if that’s where the country is at the moment. Sessions emphasized his fidelity to the Rule of Law by saying he would resign if President Trump asked him to do something unconstitutional, pointing out that, if confirmed, he would be the NATION’s lawyer, not the President’s lawyer. Sessions also talked about how the Constitution separates power among the three branches of government, and limits federal power through the Tenth Amendment. So, the man who is likely to become the nation’s lawyer said numerous times during his confirmation hearings that he would faithfully execute the law. There’s a good chance he will. It seems to be in his DNA. At one point, he said, “I’ve always loved the law. It’s the very foundation of the country.” Links “Rule of Law: The Great Foundation of Our Constitution” by Matthew Spalding www.firstprinciplesjournal.com/articles.aspx?article=1434g College students now offended by golf, ‘Happy Holidays’, and Uncle Sam posters – oh, the HORROR! http://www.campusreform.org/?ID=8607 Emory professor says ‘microagression’ should be dumped as unscientific; no evidence group members all react the same way. http://www.campusreform.org/?ID=8633  Constitution Minute
from Tea Party Patriots January 8, 2017 An article appeared recently urging that Donald Trump’s nominee for the Supreme Court be asked about their views on the Ninth Amendment to the Constitution. The Ninth Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I’m aware of two ways to read the Ninth Amendment. First, as a fountain of all kinds of new rights, all sorts of new mischief. People who read the Ninth Amendment this way argue that the Bill of Rights does not contain all the rights that We the People have, so they put in the Ninth Amendment to head off any argument that people don’t have any rights beyond those listed in the Bill of Rights. The problem with this interpretation is that there are no limits on it. One could argue that people have a right to free healthcare, longer vacations at work like FDR wanted, all kinds of things. This is the kind of thinking that gave us the made-up constitutional right to privacy in the birth control and abortion cases (Griswold v. Connecticut and Roe versus Wade). But there’s another way to read the Ninth Amendment that makes more sense. The government has certain enumerated powers under the Constitution. If what the government proposes cannot reasonably be related to one of those enumerated powers, the government can’t do it. The people retain the right to be free from governmental action that is not specified in the Constitution. This discussion is drawn from a book about the Bill of Rights and I’ll put the citation in the wrap-up. There’s more to be said about the Ninth Amendment – how it expresses the philosophical core of the American Idea and how it may or may not apply to state governments, but we’ll leave all that to another day. Let me mention two things briefly, to finish up. First, Robert Leming of the We the People program, who was on our webinar in December, will be speaking to the Bloomington Indiana Tea Party on January 26th. I am grateful to this audience and to the Bloomington group for taking such an interest in the We the People program for middle and high schoolers. It really is a fine program. Lastly, I want to bring to your attention a free e-book by Richard Viguerie and Mark Fitzgibbons - The Law that Governs Government: Reclaiming the Constitution from Usurpers and Society’s Biggest Lawbreaker, i.e. the government itself. Richard Viguerie invented the direct mail revolution that helped Ronald Reagan get elected. Mark Fitzgibbons is a constitutional lawyer in Virginia who works with Viguerie. The book suggests ways we constitutional conservatives can reclaim the Constitution from a government that’s out of control. I’ll put the link in the wrap-up. Links Ninth Amendment article: “Bill of Rights at 225: Securing all the liberties of We the People” http://www.philly.com/philly/opinion/20161221_Bill_of_Rights_at_225__Securing_all_the_liberties_of_We_the_People.html The Bill of Rights: Original Meaning and Current Understanding (Eugene W. Hickok, Jr., ed.)(see Chapters 28 and 29 on the Ninth Amendment) The Law that Governs Government: Reclaiming the Constitution from Usurpers and Society’s Biggest Lawbreaker (free e-book by Richard Viguerie and Mark Fitzgibbons) http://reclaimtheconstitution.com/download Turning Point USA professor watchlist draws comments, pro and con
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