Even though an incorrect decision may be the so-called “law of the case” as to the parties actually before the Supreme Court in a particular instance (and unchallengeable by them because no means of appeal is available), it can never constitute infallible legal dogma as to everyone else in all future instances. After all, Article VI, Clause 2 of the Constitution provides that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”—with no mention of decisions of the Supreme Court (or any other judicial tribunal) as being included within “the supreme Law”. Obviously, no such decision can ever qualify as “[t]his Constitution”, one of “the Laws of the United States”, or a “Treat[y] made * * * under the Authority of the United States”. For the Supreme Court itself is a mere creature of and subordinate to “[t]his Constitution”, not its creator or its superior. See U.S. Const. art. III, § 1. The Court’s decisions are not “Laws of the United States”, because “[a]ll legislative Powers * * * granted [by the Constitution] shall be vested in a Congress of the United States”, not in any judicial tribunal. See U.S. Const. art, I, § 1. And all “Treaties” derive exclusively from the President’s “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”, not from any part of the “[t]he Judicial Power of the United States * * * vested in [the] supreme Court”. Contrast U.S. Const. art. II, § 2, cl. 2 with art. III, § 1.
So far, this commentary has focused on Mrs. Clinton’s catalogue of alleged misbehavior, because her shady affairs have received an overwhelming amount of perfervid attention in the domestic and even international media. Yet, in the long run, Mr. Trump must deal with several even more pressing concerns if America is to accept his “Oath or Affirmation” as genuine:
First, on various occasions he has demonstrated a willingness to question what actually happened on 9/11. This indicates his suspicion—which every thinking American shares—that the real culprits have not yet been identified, or if identified not yet brought to justice. See, e.g., Kevin Robert Ryan, Another Nineteen: Investigating Legitimate 9/11 Suspects (Microbloom, 2013). In light of the horrendous harms to persons and property perpetrated on 9/11—and especially the consequences of those crimes with respect to the elaboration of a national para-military police-state apparatus in this country, the systematic curtailment of Americans’ basic civil liberties, and the launching of highly questionable military adventures overseas during the Bush Administration and Mr. Obama’s residence in the White House, all in patent defiance of the Constitution—a refusal by Mr. Trump to “take Care that the Laws be faithfully executed” through an honest and thoroughgoing investigation of the 9/11 Event would provide compelling evidence that he never intended to “take the * * * Oath or Affirmation” of the President truthfully as to that matter, either.
Second, prior to his inauguration Mr. Trump put himself on record as promising that, in his Administration, “[w]e [namely, the government of the United States] will stop looking to topple regimes and overthrow governments”. See [Link] (01 December 2016). This evidenced his belief—again, in which every thinking American along with the rest of the civilized world concurs—that rogue officials within the Bush Administration and among Mr. Obama’s entourage have engaged in such willful, wanton, and reckless aggression on more than one occasion. Again, in patent defiance of the Constitution, as everyone knows or ought to know that “the genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress”—or anyone else—“for purposes of aggression or aggrandizement”. Fleming v. Page, 50 U.S. (9 Howard) 603, 614 (1850). In addition, everyone conversant with these matters knows that the CIA and the Pentagon should be the first rocks Mr. Trump ought to turn over in a search for the chief culprits. So if Mr. Trump now refuses to “take Care that the Laws be faithfully executed” by allowing the miscreants who have been involved in “toppl[ing] regimes and overthrow[ing] governments” to escape justice, it would hardly be amiss to conclude that he never intended to “take the * * * Oath or Affirmation” of the President truthfully as to that matter, as well.
Moreover, Mr. Trump’s failure to take appropriate action as to this particular would demonstrate such imprudence as to draw into question, not only his personal capability (as opposed to his legal eligibility) to serve, but also his likelihood to survive, as President. For, rather than risk the frustration of their complots, the rogue officials who have engaged in “toppl[ing foreign] regimes and overthrow[ing foreign] governments” in the past and who undoubtedly intend to persevere in like endeavors in the future would hardly shrink from “toppl[ing]” and “overthrow[ing]” the Trump Administration—if not in the dramatic fashion their predecessors cut short President Kennedy’s tenure then in some other, but no less effective, manner—if Mr. Trump refused to give them the criminal leeway they desired. See, e.g., JFK and the Unspeakable. Why He Died and Why It Matters (Maryknoll, New York: Orbis Books, 2008; reprinted, New York, New York: Touchstone, 2010).
Indeed, they have already set out on this nefarious course, by floating in the media the fantastic assertions that “Russian hacking” exerted a decisive improper influence in favor of Mr. Trump’s election, that Mr. Trump himself is subject to blackmail by Russia, and that he is even a “dupe” or “useful idiot” working (albeit perhaps unconsciously) in Russia’s interests—by means of those canards casting a pall over the legitimacy of his Administration at its very inception. Although some observers fear that these and like tar brushes may have painted Mr. Trump into a corner, in reality they have provided him with an uniquely propitious opportunity to sweep out the responsible agencies with an iron broom. For if such charges are actually nothing more than “old grey mares”—that is, false narratives concocted by rogue operatives in “the intelligence community”—then the officials responsible for propagating them are arguably engaged in an attempt to overthrow the legitimate government of the United States through a coup d’état to be waged by Mr. Trump’s enemies in Congress and the bureaucracy, in the ever-hostile “mainstream media”, and in a gaggle of subversive NGOs intent upon applying within the United States their extensive experience in rigging “régime change” in various foreign countries. Inasmuch as the plotters of this coup must be aware that it could never be brought to completion absent the application of force at some stage (for instance, through the fomentation of violent civil disturbances on a massive scale), and therefore must already have included such operations in their plans, they have exposed themselves to serious charges. See 18 U.S.C. § 2384. Mr. Trump certainly enjoys both the authority and the ability to turn the tables on these conspirators. See 10 U.S.C. §§ 332 and 333. But whether he can muster the gumption to do so remains to be seen.
Third, prior to his election, Mr. Trump expressed skepticism—also embraced by millions of Americans whose heads are not buried in the sand—as to whether Barack Obama was ever actually “eligible to the Office of President” as “a natural born Citizen”. See U.S. Const. art. II, § 1, cl. 4. Mr. Trump knew or should have known then, and knows or should know now, that inter alia:
(i) No report of an official, full-scale inquiry into Mr. Obama’s purported eligibility has ever been made public (or perhaps even conducted behind closed doors)—whether by Congress when it had the opportunities to do so, as I first explained in my NewsWithViews commentary “In the Shadow of Nemesis” (8 December 2008); or by law-enforcement agencies such as the FBI; or by the courts of either the United States or any State.
(ii) Mr. Obama’s parentage and the place of his birth, and their effects on his citizenship, continue to be the subjects of controversy.
(iii) The provenance and authenticity of Mr. Obama’s “birth certificate” (or whatever name should be attached to the document his minions caused to be publicized with his apparent approval) have been impugned through the research commissioned by former Arizona Sheriff Joe Arpaio, without adequate rebuttal from Mr. Obama’s camp.
(iv) Mr. Obama’s status as a citizen of Indonesia, resulting from his mother’s reported second marriage to an Indonesian and his subsequent translation to and sojourn in that land as a child, is still opaque.
(v) Whether, upon his return to the United States from Indonesia, Mr. Obama took the steps required at the time to reassert or to secure American citizenship has yet to be established in any public forum.
(vi) Whether, during Mr. Obama’s years in colleges and law school in this country, he claimed benefits or otherwise identified himself as a “foreign” student remains undetermined, because he has refused to release the relevant records.
(vii) Challenges have been leveled against the authenticity of both Mr. Obama’s purported registration with the Selective Service and his supposed Social Security card. And
(viii) Widely publicized statements emanating from Mr. Obama himself, from Michelle Obama, and from certain of Mr. Obama’s relatives over the years have cast doubts upon his citizenship.
The necessity for Mr. Trump to pry open this can of worms cannot be overstated—
(a) Although America has finally awakened from the long national nightmare of Mr. Obama’s residence in the White House, his “legacy” will continue to fester. If unmasked as ineligible for the office he pretended to hold, however, every measure he inflicted on this country while impersonating “the President” could and should be set aside as void ab initio. This would not unavoidably result in an hopelessly chaotic situation, if (for example) in good time and in a systematic fashion certain of the “Bills which shall have passed the House of Representatives and the Senate” during the period of Mr. Obama’s imposture Congress saw fit to “be presented [anew] to [Mr. Trump as] the [real] President of the United States” for him to “sign” or to “return * * * with his Objections”. See U.S. Const. art. I, § 7, cl. 2. Also, equivalent corrective steps could be taken to deal with those of Mr. Obama’s purported “executive” actions which Mr. Trump did not desire to adopt anew under his own authority; as well as with many judicial decisions predicated upon Mr. Obama’s unconstitutional handiwork, through (say) the Trump Administration’s invocation of the doctrine of Hazel-Atlas Glass Company v. Hartford-Empire Company, 322 U.S. 238 (1944). And if these measures did raise problems both complex and costly to resolve, the blame would not lie on Mr. Trump, but instead on the parties in official positions who refused to address the question of Mr. Obama’s ineligibility when it first arose.
(b) Exposure of Mr. Obama’s imposture (if such it was) would strike a crippling blow at the neo-Bolshevik “color revolution” now being organized by the Marxist intelligentsia in the suites of NGOs funded by renegade billionaires for the purpose of defaming, frustrating, sabotaging, and finally demolishing the Trump Administration. Deprived of Mr. Obama as its figurehead, neo-Bolshevism in this country would collapse in the confusion of internal struggles for power which would render it an impotent political force for years to come, if not destroy it altogether. Most important,
(c) Proof of Mr. Obama’s ineligibility would preserve the United States from the “precedent” of once having acquiesced in an usurper’s seizure of the White House. To be sure, purported “precedents” which violate the Constitution de facto do not change the Constitution de jure. For the Constitution of the United States is not cut from the same ill-woven cloth as the “constitution” of England, which throughout history has been altered by one successful “precedent” after another (even though many of them were patent usurpations). Nonetheless, it is one thing to suffer a thoroughly corrupt political figure (such as Mrs. Clinton is alleged to be) to escape prosecution—for that does not set a “precedent” which can immunize all such individuals in the future. It is one thing to cover up a “false flag” operation in which rogue officials in some “intelligence agencies” have participated (such as many Americans believe the 9/11 Event to have been)—for that, too, does not set a “precedent” which can exonerate all such miscreants in years to come. And it is even only one thing to countenance wars of aggression fomented by renegades within America’s “military-industrial complex” and “national-security” apparatus (such as this country’s on-going military adventures in the Middle East)—for that does not set a “precedent” capable of overruling the fundamental principle of the Nuremberg Tribunal. See Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression (Washington, D.C.: United States Government Printing Office, 1946), Volume 1, Article 6, at 5. But usurpation of “the Office of President” for eight years by someone not eligible for that office in the first place, while almost everyone else in public life looked the other way and worked hand-in-glove with the usurper, is another thing altogether.
For if that is taken as an effectively binding “precedent” because it remains uncorrected when the evidence cries out for its correction, then Article II, Section 1, Clause 4 of the Constitution becomes a dead letter. And with it the Constitution as a whole—because, his tenure in the White House being utterly lawless in its inception, a faux “President” labors under no duty to, and surely will not, “take Care that the Laws be faithfully executed”, the Constitution first and foremost among them.
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In sum, as President Mr. Trump is not free simply to ignore these matters, if “the Deplorables” (and all other sensible Americans, for that matter) are to take his “Oath or Affirmation” seriously. Should he fail in this regard, then rather than becoming “great again” this country will soon find that its condition warrants the lugubrious prognosis put forward as a general rule of civilizational devolution by Oswald Spengler in his study Der Untergang des Abendlandes. Although this title is usually translated as The Decline of the West, the German noun Untergang can also be rendered, more ominously, as “downfall”, “ruin”, or “destruction”—which in this country’s case will be a fitting epitaph.
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