By Paul Engel

April 30, 2025

• The Johnson Amendment was passed over 70 years ago.
• It has been used to silence churches, charities, and other non-profits for decades.
• Congress is considering a bill they think will help.

How many of you know about the Johnson Amendment? Because if you’ve ever donated to a church or other charity, you’ve been impacted by it. This limitation on freedom of speech has been in effect for over 70 years. Now the House of Representatives is trying to remedy this infringement.

Johnson Amendment History

To understand what the House of Representatives is trying to do, we have to go back to the beginning, and to one Lyndon B. Johnson. In 1954 incumbent Lyndon Johnson was running for re-election to the United States Senate against Texas State Senator Dudley Dougherty. At the time Johnson seemed to be in a comfortable lead in the polls. Comfortable that is, until a couple of non-profit organizations, backed by extremely powerful leaders, stepped in.

H.L. Hunt had created an organization called Facts Forum in 1951, and Frank Gannett had created the Committee for Constitutional Government back in 1935. Both of these groups were anti-communist and supporting Dougherty in the race for the U.S. Senate seat. Concerned that Johnson was soft on Communism, both of these organization passed out thousands of pieces of literature in opposition to Johnson’s campaign. When these actions started seriously hurting Johnson’s campaign, he sought ways to silence them. Try as he might, Johnson could not find a law that these organizations were breaking.

On July 2, 1954, Johnson presented an amendment to a pending tax overhaul bill. The amendment passed on a unanimous voice vote, the bill was passed, and signed into law by President Eisenhower on August 16, 1954. There were no committee hearings or legislative analysis on the amendment, just a rushed vote. In an interview years later, a staff member stated that Johnson never had churches in mind for the amendment. There was nothing any church had done to warrant this restriction, but they got caught up in this amendment because their tax exempt status is codified in the same section of the law. According to Johnson’s staffer, “This amendment had nothing to do with “separation of church and state.” However, it has been used for decades as a threat to keep churches and ministers from engaging in public debates about so-called “political” issues.

The Johnson Amendment

Let’s start with the law regarding tax exception.

An organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503.

26 USC §501(a)

We start with three sections of the law that will describe tax exempt organizations. That is unless they are denied exception under sections 502 or 503. This includes the most well known section of the tax law, §502(c)(3).

The following organizations are referred to in subsection …

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals,

26 USC §501(c)

While there are several types of organizations, and several purposes that would make them tax exempt, the two most commonly used are religious and charitable organizations. I’m sure most people have a basic understanding of what a religious or charitable organization is, but were dealing with the law and details matter. This is where the Johnson Amendment comes into play.

… no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

26 USC §501(c)

You can be a religious or charitable organization, but if you want your tax exempt status you had better not participate in any political campaign either for or against a candidate. Do you see what Johnson was doing? His campaign was being beat up by charitable organizations, so he used his considerable power as a United States Senator to stop it. Oh, yeah, and you had better not try to influence any legislation or your tax exempt status would be on the chopping block as well.

Notice, this language doesn’t prohibit religious or charitable organization from participating in campaigns, or influencing legislation, it only threatens them with the removal of their tax exempt status. But there’s more. Most organizations I’ve talked to where this topic comes up believe that the mere mention of a candidate or legislation would threaten their status, and the law says they cannot use a “substantial part of the activities” they perform for these purposes. Such is the state of the misunderstanding of the Johnson Amendment.

The Free Speech Fairness Act

Enter the 119th Congress, and The Free Speech Fairness Act. The specified goal of this act is:

SEC. 2. ALLOWING 501(c)(3) ORGANIZATION TO MAKE STATEMENTS RELATING TO POLITICAL CAMPAIGN IN ORDINARY COURSE OF CARRYING OUT ITS TAX EXEMPT PURPOSE.

Free Speech Fairness Act

Isn’t this nice, Congress wants to allow 502(c)(3) organizations to exercise their free speech rights. Maybe that title is just poorly worded. Maybe the language of the legislation will be better.

‘‘(1) IN GENERAL.—For purposes of subsection (c)(3) and sections 170(c)(2), 2055, 2106, 2522, and 4955, an organization shall not fail to be treated as organized and operated exclusively for a purpose described in subsection (c)(3), nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any statement which—

‘‘(A) is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and ‘‘

(B) results in the organization incurring not more than de minimis incremental expenses.’’.

Free Speech Fairness Act

Should this legislation pass both houses of Congress and be signed by the President, we will trade one somewhat vague standard for another. Don’t get me wrong, I love the idea of Congress no longer trying to use the threat of revoking tax exempt status because one Senator was getting beat up by a couple of charitable organizations, but I think this could be better.

For example, the current standard for a religious or charitable organization to express their opinions about legislation or candidates is “no substantial part of the[ir] activities.” Tell me, what constitutes a “substantial part of activities”? Is it the amount of time spent? The amount of money spent? Or just what some bureaucrat thinks is advantageous at the time? This gets replaced with “the ordinary course of the organization’s regular and customary activities.” What are the ordinary course of activities for a religious organization? And who decides what is ordinary and what isn’t? A minister speaking from a pulpit seems like an ordinary activity to me, but what if that same minister speaks at a rally or legislative committee hearing? If a charitable organization serves meals in a building they own or rent, that seems like an ordinary activity, but what if they do so in a public park?

Then there’s the question of “de minimis incremental expenses.” This is a legal term for something so small the law doesn’t care about it. For example, in a million dollar deal, a $10 mistake is considered “de minimis.” So what is a “de minimis incremental expense”? Is it 1% of the organization’s budget or 10%? Is it $100 or $1,000,000?

Once again, it appears Congress wants to pass a vague law and let the executive bureaucracy fill in the blanks. And we’ve seen how that has worked out over the years.

Conclusion

The Johnson Amendment is the very definition of arbitrary and capricious. It was introduced by a United States Senator to protect his own re-election campaign. It was targeted not only at the non-profit organizations, some of whom were impacting Johnson’s campaign, but at religious and other organizations. And the language was so vague as to have allowed decades of churches, charities, libraries, and educational non-profits to work in fear that simply saying the wrong thing could not only deprive them of their tax-exempt status, but the donations that are frequently given because of that status. That alone should be sufficient reason to simply rescind the amendment.

And why should an organization not be allowed to speak their position on a piece of legislation or a candidate as a condition of their tax exempt status? Should a group of people, peaceably assembled for religious or charitable purposes, not be allowed to speak on topics of public interest?

Interestingly enough, to my knowledge, the Johnson Amendment has never been challenged in court. I’ve even heard of organizations that not only encouraged ministers to preach on the subjects of candidates and legislation for the specific purpose of filing a complaint with the IRS. Why would someone do this? Because they believe the Johnson Amendment would not survive a First Amendment challenge in federal court. These organization hope that the IRS would threaten their tax exempt status, which would give them standing to sue. To my knowledge, even though thousands of legitimate complaints have been filed by these organizations, not a single tax exempt status has been threatened or revoked. Could it be that the IRS isn’t as sure about the constitutionality of the Johnson Amendment as many might think?

Rather than getting rid of this bad law, Congress seems to want to tweak around the edges. While not the best solution, I think it would be better than what we have now. This legislation is still in progress. Maybe we can convince our elected representatives to make it better before the final vote.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 18, 2025

• Will you give up your privacy for a promise of safety?
• Do Automatic License Plate Readers violate the Fourth Amendment?
• Should police be allowed to search a license plate database without a warrant?

There will always be tension between our desires for privacy and safety. We’re all for privacy, until we find that an invasion of said privacy could have stopped some terrible event. But are we willing to trade our privacy for safety? As Benjamin Franklin said:

“They who would give up an essential liberty for temporary security, deserve neither liberty or security.” —Benjamin Franklin

In the case of Scholl and Bednarz v. Illinois State Police the privacy question revolves around automatic license place readers (ALPRs) and what makes a search reasonable.

Background

While the term “Automatic License Plate Readers” is pretty self-explanatory, how the case came to be is very important.

Six years ago, United States Postal Service worker Tamara Clayton was fatally shot on the I-57 highway. “This unfortunate expressway shooting sparked a movement within the community, Illinois State Police (ISP), Illinois Department of Transportation (IDOT), local police agencies, and the Governor’s office.” … On January 1, 2020, Illinois enacted the Tamara Clayton Expressway Camera Act to fund the installation of approximately 300 cameras—known as “automated license plate readers” or “ALPRs”—across Cook County expressways. … Two years later, Illinois passed a statute appropriating additional funds and extending the program to twenty other counties. … To date, the Illinois State Police has installed 344 cameras in Cook County, 78 in St. Clair County, and 44 across 17 other counties.

Scholl and Bednarz v. Illinois State Police

As with so many cases, the road to hell is paved with good intentions. I feel for Ms. Clayton’s family, and recognize the desire to be safe. But does our desire to be safe trump our rights or the rights of others? On the other hand, does our right to privacy trump the rights of others to be safe? Maybe there’s something in the details that can help us navigate this conundrum.

This surveillance program works in two steps. Installed on the side of a road, ALPRs photograph (or “detect”) the license plates of vehicles driving by. The system then uploads the photo to the Law Enforcement Archival Reporting Network (“LEARN”) database. This national database compiles and stores billions of license plate photos taken by ALPRs in Illinois and elsewhere.

Scholl and Bednarz v. Illinois State Police

OK, that sounds terrifying. Billions of license plate photos, stored in a national database, that can be used to track where you go. Unfortunately, it gets worse.

Law enforcement agencies across the country flag “hot plates” of vehicles that are targets of investigation—for instance, if the car is reported stolen, is used as the getaway vehicle in a bank robbery, or has expired registration. License plate photos sit idle in the database until there is a “hit”—when an ALPR “detects” a hot plate. When police receive notification of the hit, they can enter the LEARN database to retrieve the license plate photo and associated metadata of when and where the photo was taken. This information allows police to “see what cars passed by that area at the relevant time and to whom those vehicles are registered.” Last month, ALPRs in Illinois recorded 200,161,762 detections and 5,747,483 hits.

Scholl and Bednarz v. Illinois State Police

So all law enforcement needs for the system to start searching this database for plates is to ‘flag’ them? Yes, there are plenty of reasons for law enforcement to legitimately search for a license plate, but there are plenty of legitimate reasons for them to search for anything. However, in this country, those searches must be reasonable. That usually means the government must get a warrant, not for searching the “LEARN” database.

Under the Expressway Camera Act, an Illinois State Police officer may retrieve a license plate photo from the database to investigate “any offenses involving vehicular hijacking, aggravated vehicular hijacking, terrorism, motor vehicle theft, or any forcible felony, including, but not limited to, offenses involving the use of a firearm[.]” … They may also retrieve a photo “to detect expressway hazards and highway conditions; and to facilitate highway safety and incident management.” By statute, “[a]ll images from the cameras shall be deleted” from the LEARN database “within 120 days, unless the images are relevant to an ongoing investigation or pending criminal trial.”

Scholl and Bednarz v. Illinois State Police

Again, if law enforcement has probable cause to search the database, why not get a warrant? Probably because a warrant would limit the scope of law enforcement’s search to the data relevant to the case they were investigating.

Plaintiffs in this case challenge the Expressway Camera Act and Illinois’s warrantless use of ALPRs, claiming they violate the Fourth Amendment’s protections against unreasonable searches and warrant requirements. They asked the court for a preliminary injunction, preventing respondents from accessing ALPR data without a warrant. Defendants moved for dismissal due to a lack of jurisdiction.

Standing

In order for a case to be heard in federal court, the plaintiffs or petitioners have to have “standing.” The court explained this in their decision.

Article III “confines” federal jurisdiction “to ‘Cases’ and ‘Controversies.’” … One aspect of the Case or Controversy requirement is the doctrine known as “standing.” Standing requires a plaintiff to “have a ‘personal stake’ in the case.” … This “irreducible constitutional minimum . . . contains three elements.” … Those elements are an “injury in fact, a causal connection between the injury and the defendant’s conduct, and likely redressability through a favorable decision.” … “The party invoking federal jurisdiction bears the burden of establishing these elements.”

Scholl and Bednarz v. Illinois State Police

While this is the standard the court has established, it’s not established by the Constitution. In fact, the very idea that I must actually suffer harm before I can seek redress of a bad law, violates the First Amendment.

Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, Amendment I

When a government entity passes a law that violates the rights of the people, is that not a sufficient grievance? Should I not seek to redress before I jeopardize my future with an encounter with law enforcement?

Privacy

The first request made by the plaintiffs is to prevent the use of ALPRs.

First, plaintiffs seek to enjoin the warrantless use of ALPRs to photograph motorists’ license plates. As alleged, plaintiffs “regularly drive[] on the expressways in Cook County and the surrounding area, almost always using the same personal vehicle, including commuting from [their] home[s] in Cook County to work in the Chicago suburbs, as well as regular other trips by car in areas covered by Illinois’ ALPR system.” … With “some 300 ALPR cameras across every expressway in Cook County,” …, one can reasonably infer that those cameras will photograph plaintiffs’ license plates.

Scholl and Bednarz v. Illinois State Police

The problem with this argument is that when you are in public you have no reasonable expectation of privacy, but that does not mean that the government has a right to collect data about you.

Indeed, courts routinely hold that the subjects of government surveillance have standing to challenge that surveillance. …. “Whether or not such claims prevail on the merits, [plaintiffs] surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them.”

Scholl and Bednarz v. Illinois State Police

So, while courts have recognized your right not to be surveilled on your own property, that does not extend to being in public. If that were true, not only would all security cameras, including the one you may have on your doorbell, would be illegal. That would also preclude you from taking a picture or capturing video in public as well, but that doesn’t mean there isn’t a problem with ALPRs.

Unreasonable Searches

Yes, you can be recorded in public, with or without your permission. What about searching those records though?

Second, plaintiffs seek to enjoin the warrantless use of the LEARN database.

Scholl and Bednarz v. Illinois State Police

After all, the Fourth Amendment is supposed to protect us from unreasonable searches. What is the reasonable justification for an exception to the warrant requirement? Is it just because law enforcement has already collected this data? Once again, the courts place the desires of law enforcement above the rights of the people.

However, the complaint does not allege any facts indicating a “substantial risk” that police will soon retrieve plaintiffs’ license plate information from the database.

Scholl and Bednarz v. Illinois State Police

So it’s OK if the police infringe on your rights, as long as there were no facts presented that there was a substantial risk they’d do so beforehand? I don’t know if the judge was simply obtuse or outright biased, but her explanation of his “substantial risk” is laughable.

Indeed, plaintiffs do not allege that they will soon commit (or be victims of) any of the offenses enumerated in the Expressway Camera Act—namely, “vehicular hijacking, aggravated vehicular hijacking, terrorism, motor vehicle theft, or any forcible felony[.]”

Scholl and Bednarz v. Illinois State Police

The purpose of the warrant requirement is NOT to justify a reasonable search, but to prevent an unreasonable one. I’m sure if the plaintiffs were victims of a hijacking or vehicle theft, they would find it reasonable to search the ALPR database for their vehicle. But what about searches for other reasons? Say an abusive husband or boyfriend trying to track down their victim? Or an officer, on a hunch or vendetta, that wants to surveil a suspect, but cannot get a warrant? Couldn’t they use the ALPR database to grab pictures wherever the suspect’s vehicle travels? After all, couldn’t an officer simply list them as a “hot plate” without any probable cause?

The court went on to make a rather interesting argument about searches.

“The Supreme Court has developed two distinct paths to identify a search[.]” United States v. Tuggle, … First, “[u]nder the property-based approach, a search occurs when an officer enters a constitutionally protected area . . . for the purpose of gathering evidence against the property owner.” … “Alternatively, under the privacy-based approach, courts ask whether a person has a legitimate expectation of privacy in a given situation.” … Because plaintiffs do not argue that the ALPR program involves a physical intrusion on their property, the court will examine their Fourth Amendment challenge under the privacy-based approach.

Scholl and Bednarz v. Illinois State Police

The court, apparently in an attempt to justify this violation of your rights, points out that since ALPRs do not physically intrude on your vehicle, you have no expectation of privacy, as defined by the courts. They seem to ignore the fact that, when an officer enters a “hot plate” into the database, the government is searching for the effects of a private individual for the sole purpose of determining where this person might logically be.

Mass Surveillance

And what about this mass collection of data?

As alleged, defendants are “holding onto . . . mass surveillance data in case one day some police officer decides to target Plaintiffs for specific investigation.”

Scholl and Bednarz v. Illinois State Police

Should the government be allowed to surveil the public without any reasonable suspicion, then hold onto that data in case they want to use it in the future?

While “one day” need not be today or tomorrow, it must be some ascertainable time. See Lujan, 504 U.S. at 565 (explaining that “‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require”). Because their alleged constitutional injuries are not sufficiently imminent, plaintiffs lack standing to enjoin the warrantless use of the LEARN database.

Scholl and Bednarz v. Illinois State Police

What about evidence from the past? The entire purpose of ALPRs is to collect data in case the police need it “some day.” To say that the fact you cannot point to a specific instance in the future when this might happen to a specific person when there is clear evidence that it is happening to people everyday, is as childish as blaming the cat for wetting the bed. Evidence in this very case shows that almost 6,000,000 “hits” were recorded in a single month in the State of Illinois. While a specific individual may be searched “some day,” this case shows that on average someone is flagged almost 200,000 times a day.

Sovereign Immunity

In their defense, the defendants claim they have “sovereign immunity.”

Next, defendants move to dismiss plaintiffs’ claims on sovereign immunity grounds. Sovereign immunity “bars actions in federal court against a state, state agencies, or state officials acting in their official capacities” … Suits against state officials in their official capacity amount to suits against the state itself.

Scholl and Bednarz v. Illinois State Police

Except the entire idea of “sovereign immunity” is antithetical to a nation of laws, not men. People are fond of the idea that no one is above the law, but that is exactly what sovereign immunity claims.

Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch can do no wrong.

Sovereign Immunity – The Free Legal Dictionary

If the sovereign, in this argument the government, can do no wrong, then they are above the law. This not only abrogates the concept of a limited government, but violates the Constitution as well.

This 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;

Supremacy Clause, U.S. Constitution, Article VI, Clause 2

Since the Constitution is the supreme law of the land, not the government of Illinois, they cannot claim to be the sovereign.

SOVEREIGN. A ruler supreme power; one possessing sovereignty. (q.v.) It is also applied to a king or other magistrate with limited powers.
2. In the United States the sovereignty resides in the body of the people.

Sovereign – The Free Legal Dictionary

Since in this country sovereignty resides in We the People, not the government, neither the state nor any of its agents can claim sovereign immunity.

Conclusion

Sadly, it appears once again the courts have placed the desires of the government above the rights of the people.

Defendants’ motion to dismiss, is granted. Because plaintiffs fail to state a claim, they have not demonstrated that they are likely to succeed on the merits. … Thus, plaintiff’s motion for a preliminary injunction, is denied.

Scholl and Bednarz v. Illinois State Police

The only reason the court believes the plaintiffs won’t win is because they have placed their thumbs on the scales of justice by requiring they prove they have already been harmed by this illegal practice.

I agree with the court that vehicle owners have no reasonable expectation of privacy while on public roads, and therefore the license plate readers themselves do not violate the Fourth Amendment. However, allowing the police to search through the effects, arguably the property of those license plates they have captured without a warrant, makes that an unreasonable search. The fact that the court cannot conceive that the police would conduct illegal searches points to the myopic view so many judges have of their fellow government employees.

Personally, I think judge Pacold should be ashamed of herself. While she may have based her decision on the flawed and unconstitutional decisions of her predecessors, she alone is responsible for this violation of justice and basic human rights. I think it’s about time we hire presidents who appoint judges based on their fidelity to their oath to support the Constitution than their political predilections.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 14, 2025

• When laws need an update, who’s responsible for making the changes?
• Can ATF simply rewrite the law because they think it needs an update?
• Why would the same Supreme Court that said agencies could not rewrite law last term, tell the ATF they could today?

I don’t know which of the three branches of government does the most to infringe on your rights. Take, for example, the recent Supreme Court decision in the case Bondi v. Vanderstok, where Mr. Vanderstok challenged the recent regulation from the Bureau of Alcohol, Tobacco, Firearms, and Explosives redefining weapons parts kits as firearms. It seems the Supreme Court has a hard time reading either the law or the Constitution.

Background

While this lawsuit questions the actions of ATF, the events actually starts back in 1968.

The Gun Control Act of 1968 (GCA) requires those engaged in importing, manufacturing, or dealing in firearms to obtain federal licenses, keep sales records, conduct background checks, and mark their products with serial numbers.

Bondi, Attorney General, et al. v. Vanderstok et al.

While the case was filed in 2023, it really begins with The Gun Control Act of 1968. However, what Justice Gorsuch stated in the opinion about the law, is not exactly correct.

(a) It shall be unlawful—

(1) for any person—

(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; or

(B) except a licensed importer or licensed manufacturer, to engage in the business of importing or manufacturing ammunition, or in the course of such business, to ship, transport, or receive any ammunition in interstate or foreign commerce;

18 USC §922

You see, the Gun Control Act only prohibits a person participating in certain forms of interstate and foreign commerce. As defined in the GCA:

(2) The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).

18 USC §921(a)(2)

This is allowed because Congress has the authority:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

The act also defines a firearm as:

(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 USC §921(3)

Why did Congress pass this legislation?

Shortly after the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. stunned the Nation, Congress adopted the Gun Control Act of 1968 (GCA). … Existing gun control measures, Congress found, allowed criminals to acquire largely untraceable guns too easily.

Bondi, Attorney General, et al. v. Vanderstok et al.

Once again, Congress exceeds its Constitutional authority because it saw a “need” and thought it knew better than the Founding Fathers.

In response, Congress adopted a number of new mandates. As a result, many of those now engaged in importing, manufacturing, or dealing in firearms must obtain federal licenses, keep records of their sales, and conduct background checks before transferring firearms to private buyers. 18 U. S. C. §§922(t), 923(a), (g)(1)(A). The Act also requires importers and manufacturers to mark their firearms with serial numbers.

Bondi, Attorney General, et al. v. Vanderstok et al.

Again, the Supreme Court reads into the law language that does not exist. Because that language of the law only impacts “any firearm in interstate or foreign commerce”.

These mandates serve at least two ends. The background-check requirement seeks to keep “guns out of the hands of criminals.”

Bondi, Attorney General, et al. v. Vanderstok et al.

The problem is, just because Congress thinks keeping guns out of the hands of criminals is a good thing, which I tend to agree with, that doesn’t mean they can break the law to do so.

The Gun Control Act

In this midst of this, the ATF promulgated a new regulation.

In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) adopted a rule interpreting the Act to cover weapon parts kits that are “designed to or may readily be converted to expel a projectile,” 27 CFR §478.11, and “partially complete, disassembled, or nonfunctional” frames or receivers, §478.12(c).

Bondi, Attorney General, et al. v. Vanderstok et al.

This is the core of the issue in this case. Do executive agencies have the legal authority to effectively rewrite federal law? As the court points out:

The GCA’s mandates apply to “firearm[s].” … And the law defines that key term broadly. … Thanks to this generous definition, the GCA has long been understood to reach everything from run-of-the-mill rifles to novelty umbrella guns.

Bondi, Attorney General, et al. v. Vanderstok et al.

The GCA may have been understood to reach a lot of different weapons, but only when they are in interstate or foreign commerce. The fact that so many people keep forgetting this has led to more and more infringements.

Recent years, however, have witnessed profound changes in how guns are made and sold. When Congress adopted the GCA in 1968, “the milling equipment, materials needed, and designs were far too expensive for individuals to make firearms practically or reliably on their own.” … With the introduction of new technologies like 3D printing and reinforced polymers, that is no longer true. Today, companies are able to make and sell weapon parts kits that individuals can assemble into functional firearms in their own homes.

Bondi, Attorney General, et al. v. Vanderstok et al.

Yes, things change over time. But who is responsible for making sure the laws keep up with the times, the agencies or Congress? Because it certainly not the courts. Once again, the Supreme Court wants to justify rewriting the rules.

Some manufacturers and dealers take the position that weapon parts kits do not qualify as “firearms” subject to the GCA. As a result, they say, they are free to sell their products without obtaining a federal license, conducting background checks, maintaining sales records, or marking components with serial numbers.

Bondi, Attorney General, et al. v. Vanderstok et al.

To be fair, that is what the law says.

(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 USC §921

The law says nothing about firearm components. The law also says that the prohibitions are against firearms in interstate or foreign commerce. This is where the ATF decided to step in and muck things up.

The New ATF Rule

Since Congress was unable to pass legislation to include gun parts kits, it seems the ATF would step in.

In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives adopted a new rule designed to combat the proliferation of ghost guns. so, the agency invoked authority Congress granted it to prescribe “rules and regulations as are necessary to carry out” the GCA. 18 U. S. C. §926(a).

Bondi, Attorney General, et al. v. Vanderstok et al.

Except that is NOT what 18 U. S. C. §926(a) actually says:

(a) The Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter,

18 USC §926(a)

Not only does §926 not give the ATF the authority to write rules and regulation, it gives the Attorney General that power. Furthermore, the power is to put into effect the provisions of that chapter of the law, not to rewrite that law.

The GCA embraces, and thus permits ATF to regulate, some weapon parts kits and unfinished frames or receivers, including those we have discussed. Because the court of appeals held otherwise, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Bondi, Attorney General, et al. v. Vanderstok et al.

Except the GCA says not such thing and the fact that the court thinks it does shows points to how badly the judiciary has been compromised. At least in this case, not all of the justices are blind.

The Dissents

Justice Thomas disagreed with the court. He summarized his dissent in his opening paragraph, and again in his closing paragraph.

The Government asked this Court just last Term to “ ‘rewrite’ ” statutory text so that it could regulate semiautomatic weapons as machineguns. Garland v. Cargill, 602 U. S. 406, 428 (2024). We declined to do so. The Government now asks us to rewrite statutory text so that it can regulate weapon-parts kits. This time, the Court obliges. I would not. The statutory terms “frame” and “receiver” do not cover the unfinished frames and receivers contained in weapon-parts kits, and weapon-parts kits themselves do not meet the statutory definition of “firearm.” That should end the case. The majority instead blesses the Government’s overreach based on a series of errors regarding both the standard of review and the interpretation of the statute. I respectfully dissent.

Bondi, Attorney General, et al. v. Vanderstok et al.

Justice Thomas points out that, just last term, the court declined to allow the ATF to rewrite the law, then this term they do. The mere fact that the ATF regulations redefines that word “firearm” should end the case. Instead, the court blesses the ATFs overreach, and I’m not entirely sure why. As Justice Thomas stated in his closing paragraph.

Congress could have authorized ATF to regulate any part of a firearm or any object readily convertible into one. But, it did not. I would adhere to the words Congress enacted. Employing its novel “artifact noun” methodology, the majority charts a different course that invites unforeseeable consequences and offers no limiting principle. I respectfully dissent.

Bondi, Attorney General, et al. v. Vanderstok et al.

As Justice Thomas pointed out, Congress could have authorized the ATF to regulate any part of a firearm, but they didn’t. By ignoring the law, the Supreme Court has opened up a myriad of unintended consequences, most of which we won’t know until it is too late.

Justice Alito also wrote a dissent, but for mostly technical reasons.

Conclusion

Once again, it appears the justices of the Supreme Court has substituted their opinions for the law. As the court said in the case Marbury v. Madison:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.

Marbury v. Madison

Except, in this case, the court didn’t expound on the law, but apparently couldn’t even be bothered to read the law. For example, the law clearly states its prohibited actions regard “any firearm in interstate or foreign commerce,” the law grants the Attorney General, not the ATF, the power to write regulations to fulfill the law, and nowhere that I’m aware of, does the law grant others the right to redefine terms defined in the law.

Then there’s the point made by Justice Thomas. The court that seems so concerned with precedent ignored the precedent it had established in Garland v. Cargill in the previous term, a precedent to follow the law as written by Congress, and now decides it’s perfectly fine for unelected bureaucrats to rewrite federal law. Not only has the court gotten it wrong when it decided this case, it completely inverted the legal structure of the federal government. According to this court, the Congress can overrule the Constitution of the United States, executive regulations supersede U.S. law, and the whims of the court supersede all. Is it any wonder that people don’t trust our so-called justice system? This is why I say we do not have a justice system, but “just a system,” and this court just helped prove me right.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 8, 2025

• Whose safety matters more, law enforcement of civilians?
• Does being legally armed automatically make you a danger to society?
• Should officer safety override the Constitution of the United States.

Imagine you are stopped by law enforcement. Maybe you were doing something wrong, maybe not. At this point, when you are in the custody of law enforcement, whose safety matters more: Yours or that of the officer? In the 2017 Fourth Circuit case United States v. Robinson, while not specifically put this way, the question still came up. Does officer safety trump your right against unreasonable search and seizure, against even your own safety?

Background

To understand the decision in this case, we have to start at the beginning.

After receiving a tip that a man in a parking lot well known for drug-trafficking activity had just loaded a firearm and then concealed it in his pocket before getting into a car as a passenger, Ranson, West Virginia police stopped the car after observing that its occupants were not wearing seatbelts. Reasonably believing that the car’s passenger, Shaquille Robinson, was armed, the police frisked him and uncovered the firearm, leading to his arrest for the possession of a firearm by a felon.

United States v. Robinson

After receiving a tip, it appears that law enforcement may have been looking for an excuse to search Shaquille Robinson, and they found one when he drove off without his seatbelt on. Using the anonymous tip about Mr. Robinson being armed as a pretext, the police frisked him and uncovered a firearm. Since Mr. Robinson was a felon, they arrested him for exercising his Second Amendment right after he had lost it for his felony conviction.

The Courts

Was the frisk legal? Did the police violate Mr. Robinson’s right to be secure from unreasonable searches? Mr. Robinson through so.

During his prosecution, Robinson filed a motion to suppress the evidence recovered as a result of the frisk, contending that the frisk violated his Fourth Amendment rights. The officers, he argued, had no articulable facts demonstrating that he was dangerous since, as far as the officers knew, the State could have issued him a permit to carry a concealed firearm. After the district court denied the motion to suppress, Robinson pleaded guilty to the illegal possession of a firearm, reserving the right to appeal the denial of his motion to suppress.

United States v. Robinson

Mr. Robinson has a very interesting point. Why should someone being in possession of a firearm lead to an assumption of dangerousness? After all, for all the officer knew, Mr. Robinson could have been a legal concealed carrier; he might even have had a carry permit. How does that establish reasonable suspicion that a crime was being committed? When that didn’t work at the trial, Mr. Robinson tried again on appeal.

On appeal, Robinson contends again that the information that police received from the tip described seemingly innocent conduct and that his conduct at the time of the traffic stop also provided no basis for officers to reach the conclusion that he was dangerous. He argues, “Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down.”

United States v. Robinson

Mr. Robinson’s argument on appeal gets even better. None of his conduct would lead a reasonable person to believe Mr. Robinson was dangerous unless you assume everyone with a gun is automatically a danger to society. And if everyone who legally carries a firearm is automatically subject to a Terry stop (from the case Terry v. Ohio), then merely exercising your right protected under the Second Amendment could be considered reasonable cause for a “stop and frisk.”

There’s another point that I find important, but didn’t see in the court opinion. The tip was anonymous. Under the Sixth Amendment, you have a right to confront your accuser.

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him;

U.S. Constitution, Amendment VI

If the reasonable assumption that the police used to search Mr. Robinson was based on an anonymous tip, how can he confront his accuser? So if Mr. Robinson cannot confront the person who accused him of carrying a loaded weapon in court, how can that be used for reasonable suspicion? After all, isn’t an anonymous tip hearsay? For all the court may know, the accuser has a personal interested in seeing Mr. Robinson harassed, regardless of his guilt.

We reject Robinson’s argument and affirm, concluding that an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.

United States v. Robinson

If the reasonable suspicion of the possession of a firearm is sufficient for an officer to frisk a suspect, what about the civilian? After all, there is a more than reasonable suspicion that law enforcement is armed. Does that give cause for the civilian to frisk the officer for his or her safety? If only one party is armed, then only one party is a threat to the safety of everyone.

The Fourth Amendment does not “require … police officers [to] take unnecessary risks in the performance of their duties.”

United States v. Robinson

The Fourth Amendment says no such thing. I agree, that police officers should not have to take unnecessary risks in the performance of their duties, but those duties include following the supreme law of the land. That is why their oath of office requires they swear or affirm to support the Constitution of the United States.

… It is also inconsequential that the passenger may have had a permit to carry the concealed firearm. The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession.

United States v. Robinson

Which gets to the root of the problem. If the danger comes from the presence of a weapon during a forced police encounter, regardless of whether or not it is legal, why does it matter which party holds the firearm? If police were as pure as the driven snow, then it would be reasonable for the threat to be one-sided. Then again, that would mitigate the need for police to have internal affairs divisions, and for other law enforcement entities to have inspectors general. While I’m sure the vast majority of law enforcement officers are just trying to do their job, there is plenty of evidence that some of those same officers have abused their position. Not to mention that some of those encounters have led to the assault and battery of the civilian, all while the civilian is defenseless before a government official. Isn’t that why we have a Second Amendment, to make sure We the People aren’t defenseless against a potentially hostile government?

The Traffic Stop

When Mr. Robinson was pulled over, the actions of the officer bring even more questions to this case.

Yes, Mr. Robinson was a felon, but did the officer know that at the time? The “tip” only identified “a black male in a bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket.” Yes, this black male was leaving a high-crime area, which to me may justify the desire to be armed. Yet look how the officer treated what should have been a routine traffic stop.

After calling in the stop, Officer Hudson approached the driver’s side of the vehicle with his weapon drawn but carried below his waist and asked the driver for her license, registration, and proof of insurance. He also asked the male passenger, the defendant Robinson, for his identification but quickly realized that doing so was “probably not a good idea” because “[t]his guy might have a gun[,] [and] I’m asking him to get into his pocket to get his I.D.” Instead, Officer Hudson asked Robinson to step out of the vehicle.

United States v. Robinson

I am not an attorney, and I’m not familiar with West Virginia law, but is a passenger in a vehicle who is not wearing a seatbelt issued a citation, or just the driver? If not, what reasonable suspicion does Officer Hudson have that Mr. Robinson has committed, is committing, or is about to commit a crime? That is the requirement for a Terry stop and search. The only thing the officer knows is that the passenger is likely armed, that is, assuming this is the vehicle reported by the tipster. Based on this, Officer Hudson approaches the vehicle with his weapon drawn, giving those in the vehicle reasonable fear that their life is in imminent danger. I believe that is the trigger in all 50 states for a person to use lethal force to defend themselves. Remember, those in the car have no idea who the officer is or what his intentions are. All they know is that an armed person in uniform is approaching, and possibly that he has drawn his weapon.

Look at Officer Hudson’s reasoning. He asked the passenger for his ID, then realizes that this was “probably not a good idea.” Why? Because “[t]his guy might have a gun.” Now look at this from the other point of view. They know the officer has a gun. They may even be aware that he has drawn his gun. I wonder how Office Hudson would have reacted if Mr. Robinson, knowing he was dealing with an armed law enforcement officer, drew his weapon because he knows the officer is armed?

Who has a more reasonable, articulable, suspicion that their life might be endanger? Is it the officer, who is approaching a vehicle with unknown occupants and the knowledge that traffic stops go bad? Or is it the passengers who have an unknown armed officer approaching and a knowledge that some officers abuse their position, something especially known to happen to black civilians? Either way, we have a potentially tense situation made worse by the presence of firearms on both sides, and the escalation of Officer Hudson drawing his firearm.

Then, Captain Roberts enters the picture.

At this point, Captain Roberts arrived and opened the front passenger door. As Robinson was exiting the vehicle, Captain Roberts asked him if he had any weapons on him. Instead of responding verbally, Robinson “gave [Roberts] a weird look” or, more specifically, an ” ‘oh, crap’ look[ ].” Roberts took the look to mean, “I don’t want to lie to you, but I’m not going to tell you anything [either].”

United States v. Robinson

So Mr. Robinson exercises his right to remain silent, but Captain Roberts sees “a weird look”? Then Captain Roberts begins reading minds. There could be many reasons why Mr. Robinson would have a “weird” or “oh, crap” look. He was in a vehicle stopped by law enforcement, asked for his ID, even though I’m not sure he could be cited for the offense of not wearing a seatbelt, asked to exit the car, then asked about weapons. That could easily bring an “oh crap” look to someone’s face. Remember though, even if Mr. Robinson is armed, the police have yet to establish a reasonable suspicion that Mr. Robinson is committing a crime.

At this point, Captain Roberts directed Robinson to put his hands on top of the car and performed a frisk for weapons, recovering a loaded gun from the front pocket of Robinson’s pants. After conducting the frisk, Roberts recognized Robinson, recalled that he had previously been convicted of a felony, and arrested him.

United States v. Robinson

Only now, after Mr. Robinson has been targeted for an act that was most likely perfectly legal, stopped, asked for ID, asked to exist the vehicle, and frisked, does law enforcement have a reasonable suspicion that Mr. Robinson was committing a crime? Not because he was carrying a firearm, but because Captain Roberts, after conducting the frisk, recognizes Mr. Robinson as a convicted felon. Which means the ID and frisk of Mr. Robinson was conducted before police had reasonable suspicion of a crime. That is unless carrying a firearm is assumed to be a crime until proven otherwise.

Conclusion

I have a lot of concerns regarding this case. Yes, Mr. Robinson was in the act of committing a crime by being a felon in possession of a firearm, but no one other than Mr. Robinson knew that until after he was frisked. Yes, the stop was legal, since the officer observed the occupants driving without their seatbelts on. (The constitutionality of seatbelt laws is a question for another day.) But how does a seatbelt violation become a reasonable suspicion to frisk the passenger? Yes, there was a tip that the passenger was armed. That was an anonymous tip though, meaning there was no way for law enforcement to follow up and validate the tip without violating the rights of Mr. Robinson. And since it is legal in West Virginia to carry a loaded firearm, with certain restrictions, how is the tip reasonable suspicion of a crime? According to court records, Mr. Robinson was only identified as a “black male,” so there was no way for police to search his record and identify him as a felon, which would be necessary to reasonably lead them to believe Mr. Robinson was committing the crime of a felon in possession.

I understand the bias to find against Mr. Robinson; after all he was found to be a felon in possession of a firearm. But do the ends justify the means? What’s to prevent law enforcement from stopping you, or another innocent person, simply because they were observed in the perfectly legal act of loading a firearm and concealing it on their person? There are some places where I am not allowed to carry my firearm, so I lock it in my vehicle. When I exit, I check my firearm, then put it back in its holster. Should someone observe me doing this be sufficient for me to be frisked by law enforcement? Especially in Tennessee, where permit-less carry is legal? Is that not being considered guilty until proven innocent?

The courts might have had an easier time finding the frisk unreasonable if Mr. Robinson hadn’t been a felon. Then again, hindsight is 20-20. At the time of the stop, Officer Hudson and Captain Roberts had no reasonable, articulable suspicion that Mr. Robinson was a felon, or that he did not have a carry permit. So, under the precedent of Terry v. Ohio, the police had no reasonable, articulable suspicion that Mr. Robinson was committing a crime, making the frisk an unreasonable search, violating the Fourth Amendment and Mr. Robinson’s rights. This violation of Mr. Robinson’s rights was compounded by both the District and Circuit courts who heard his case.

I guess, under current federal jurisprudence, the ends to justify the means, and gun owners are considered guilty until proven innocent

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 2, 2025

• Does your state have a “duty to inform” law?
• Many point to a violation of the Second Amendment.
• Did you realize these laws violate the Fourth and Fifth Amendments as well?

As a lifelong gun owner, I understand the awesome responsibility of owning a weapon. After getting my concealed carry license many years ago, I came to understand the great responsibility of having a deadly weapon on my person. Now, as a constitutional scholar, I’ve come to realize just how badly states are infringing on our rights, simply because we decide to exercise one of them.

Today, I want to talk about “duty to inform” laws. After all, if the presence of a firearm is a threat to officer safety, than the officer’s firearm is a threat to my safety.

Duty to Inform

In this article “duty to inform” means the legal requirement that a person, when they are contacted by law enforcement, is to inform them that they are armed. Based on my research, currently 47 out of 50 states have some form of “duty to inform” law. Most states have a requirement that you inform law enforcement if you have a firearm only if you are asked. However, thirteen states require you to inform law enforcement of the presence of a firearm even before you are asked. A “duty to inform” law is described by Concealed Nation as:

Duty to Inform laws are crucial regulations that concealed carriers must understand to ensure both their safety and compliance with local statutes during encounters with law enforcement.

Successful Duty to Inform: Essential Knowledge for Concealed Carriers – Concealed Nation

I’ll talk about compliance with local statues later, but there is some logic in helping to ensure safety both for you and for law enforcement.

The Duty to Inform law exists to maintain a clear line of communication between armed civilians and law enforcement officers. It aims to:

• Enhance officer safety: Knowing that an individual is armed allows officers to adjust their approach to ensure their safety and the safety of others.
• Reduce misunderstandings: By disclosing the presence of a firearm, a concealed carrier can prevent a scenario where an officer might unexpectedly discover the firearm, potentially leading to defensive actions.
• Foster transparency: These laws encourage honesty and openness in interactions between armed citizens and police, fostering an environment of mutual respect and understanding.

Successful Duty to Inform: Essential Knowledge for Concealed Carriers – Concealed Nation

I do want to enhance safety, but not just for law enforcement, and I’ll talk about that more later as well. Yes, the assumption is that all law enforcement is armed, so I can understand them wanting to know if they have a tactical advantage in such a situation or not. But if the idea that an armed citizen is a threat to officer safety, then an armed officer is a threat to citizen safety. After all, if a citizen draws a gun on law enforcement it’s a crime, but if an officer draws their gun on a civilian, it’s their job.

Yes, we should want to reduce misunderstandings, but that only works when both sides are open and transparent. Why should the presence of a firearm lead to defensive action only when in the possession of a civilian? Don’t civilians have the same right to defend themselves as law enforcement? Do we not have a right, protected by the Constitution of the United States, to be armed? The constitutions of most of our states recognize that all power is inherent in the people. Shouldn’t we be able to exercise that power without fear that a government actor has legal protections if they overreact to that fact? If states wish to foster transparency, why do they allow their officers to lie to citizens, then claim it’s a crime for citizens to lie to officers. That does not foster transparency, but suspicion.

Laws and Statues

With the law, details matter. Take for example my home state of Tennessee. When I started researching this article I found several websites that claim that Tennessee has a duty to inform law. Well, that’s not exactly what I found. As I stated above, like most people, when I hear “duty to inform,” I think of a legal requirement to inform law enforcement if you are in possession of a firearm. However, when I dug into the Tennessee law these sites were referring to, I found something different.

The permit holder shall have the permit in the holder’s immediate possession at all times when carrying a handgun in a location or manner that would be prohibited if not for the person’s status as a concealed handgun carry permit holder and shall display the permit on demand of a law enforcement officer under such circumstances.

Tenn. Code Ann. § 39-17-1366(e)

So the Tennessee Code Annotated that’s cited as a “duty to inform” law, actually only requires a permit holder to display the permit when demanded by law enforcement, and only if they are in a location where they are required to have a permit to be in possession of a firearm. (Tennessee is a permit-less carry state, so in most locations, a permit is not required to carry a firearm.) Under this law, there is no time when a person is required to inform law enforcement that they are actually in possession of a firearm.

There is a more important consideration with these laws: Violations of Constitution of the United States. Sure, there’s the Second Amendment issue, but do these laws violate the Fourth and Fifth Amendment as well?

Unreasonable Search

Most of you are probably aware that the Fourth Amendment protects you against unreasonable searches and seizures, but when are you being searched and when are you being seized? And what makes them reasonable? In Terry v. Ohio, the Supreme Court said:

Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person within the meaning of the Fourth Amendment.

Terry v. Ohio, 392 U.S. 1 (1968)

So when you are stopped by the police, you have been seized and you are in custody, which requires reasonable suspicion. That means for law enforcement to stop you, they must be able to articulate a reasonable suspicion of your participation in a crime, either past or future.

Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.”

Terry v. Ohio, 392 U.S. 1 (1968)

Does this logic not extend to having to admit that you are armed? If an officer must have a reasonable suspicion of a crime to stop you, shouldn’t they need a similar reason to ask if you are armed? And since this is a right protected by the Constitution of the United States, shouldn’t the state also be required to show reasonable suspicion before demanding you speak? After all, the law enforcement officer who has stopped you is armed, and by the logic of this case, may be presently dangerous to you. Why should a level playing field between citizen and law enforcement be considered a problem?

Self Witness

If we’re going to talk about speaking, we have to include the Fifth Amendment. One of the constitutional protections that I see often misquoted comes from the Fifth Amendment.

nor shall be compelled in any criminal case to be a witness against himself

U.S. Constitution, Amendment V

Notice, it is your right to not be a witness against yourself, whether it would incriminate you or not. You may not be criminally charged when you encounter law enforcement, but if these laws make it a crime to not inform law enforcement, then that would make it a criminal case. So how can the state require me to witness against myself in what may become a criminal case? The Fifth Amendment protection is not against self-incrimination, but self-witness. If you are required to tell someone you are in possession of a firearm, you are witnessing against yourself, especially if you were carrying concealed. That makes these laws a violation of the Fifth Amendment.

Conclusion

I think I’ve shown that these “duty to inform” laws violate both the Fourth and Fifth Amendment to the Constitution. Yet each and every day, people are told they have to allow these violations of their rights as a condition of exercising a right protected by the Constitution.

Remember, the Supreme Court believes that, to establish reasonableness to detain and search a person, law enforcement must first be able to articulate a reasonable suspicion of a crime. Searching you for a firearm, even verbally, is unreasonable without such suspicion, and therefore violates your rights protected by the Constitution. It does not matter if your alleged duty requires the officer to ask, without reasonable suspicion, that is a violation of the Fourth Amendment.

Demanding that you witness against your self is a violation of the Fifth Amendment. Again, if law enforcement has a reasonable articulable suspicion that you have or are about to commit a crime, they’ve established a reasonable search, but your right against self-witness is not based on reasonableness like your right to not be searched.

For these reasons, along with your right to remain silent, I do not see how the state can demand that you identify whether or not you are armed. Even if there are state or local laws that require this violation of the Constitution, you can always point to the Supremacy Clause:

This 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2

That said, there are situations where, both for your safety and the safety of other innocent people who may be in proximity, I think it would be a good idea to let law enforcement know that a firearm is present. For example, if you are getting out of a car, or being “patted down” while armed, or if you are reaching for something where a gun is being stored, I think it would be a good idea to inform the officer of the presence of a gun rather than allowing them to discover it for themselves. It’s not that the officer can legally compel you, but for your safety, since you do not know how any specific officer may react to the discovery of a legally possessed firearm.

What I find most concerning is the ongoing attempt by government actors and our elected representatives to create a disparity of power where We the People are expected to be subjects to the governments we created. This ongoing attempt to make law enforcement rulers over the people they have sworn to protect and serve is not only antithetical to the constitutional republic, but to a free people. It is also a violation of federal law:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;

18 USC §242

That is why I urge you to contact your state representatives and urge them to rescind these “duty to inform” laws. In this country, we are not only to be assumed innocent until proven guilty, but we have the right to both be secure from unreasonable searches and to not be forced to witness against ourselves. Since these rights are protected by the Constitution of the United States, those laws are already void. Shouldn’t those who represent us fulfill their oath to support the Constitution’s of both their state and the United States? Shouldn’t they do all they can to avoid the confusion that can reduce the safety of officer and citizen alike? Because these laws merely make the citizen a defenseless potential victim of law enforcement hubris.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 26, 2025

• What is the proper remedy to past discrimination?
• Is it present discrimination, as Ibriam Kendi says?
• Or is reverse discrimination just as evil as the discrimination it claims to remedy?

Ibriam Kendi is often quoted as saying “The only remedy to past discrimination is present discrimination.” Is that true? Above the main entrance to the Supreme Court is a promise chiseled into the marble façade: “equal justice under law”. How can we have equal justice under law if one side is always discriminating against another?

Enter the case of Ames v. OH Dept. of Youth Services, where Marlean Ames claims she was discriminated in her job because of her sexual orientation. What makes this case uniques is Ms. Ames is heterosexual, and the Sixth Circuit claimed that meant she had a higher burden of proof than a homosexual.

Arguments for Mr. Wang for the Petitioner

We start with oral arguments from Mr. Xiao Wang, attorney for Ms. Ames. Mr. Wang begins by describing the situation that led to the lawsuit.

1. WANG: Mr. Chief Justice, and may it please the Court:

Marlean Ames has worked for the Ohio Department of Youth Services for over two decades, and in 2018, her year-end performance review described her as being very competent in her — in her role, a pleasure to have on the team, and always willing to assist others.

But, in 2019, she experienced two adverse employment actions. First, she sought a promotion to Bureau Chief for which she was qualified, for which she applied, and for which she interviewed. But neither she nor the two other heterosexual employees who applied and interviewed got the job. Instead, the job was held open for eight months before going to a gay employee who neither applied nor interviewed for the position.

And second, Ms. Ames lost the job that she was in, and she lost it and was replaced by another gay employee who also did not apply or interview for the position.

Ames v. OH Dept. of Youth Services – Oral Arguments

The situation described by Mr. Wang certainly does seem to show discrimination. First, three heterosexual applicants for a job are denied, then the job is left open for months until a homosexual employee was given the job, even though they never applied nor interviewed for the position. Then Ms. Ames lost a job for which she had been given excellent performance reviews, only to have the vacancy filled by yet another homosexual person who neither applied nor was interviewed for the position. Seems pretty cut and dried, both to me and the Sixth Circuit Court of Appeals.

Based on these facts, the Sixth Circuit held that Ms. Ames had satisfied the usual requirements for stating a — for stating a prima facie case of discrimination under Title VII, but she could not proceed because of the background circumstances rule, which the Sixth Circuit described as an additional showing unique to majority-group plaintiffs.

Ames v. OH Dept. of Youth Services – Oral Arguments

Wait, Ms. Ames stated a prima facie case of discrimination (A fact presumed to be true unless it is disproved. — The Free Legal Dictionary), but because she wasn’t a minority, she needed to prove more?

The narrow question before the Court today is whether this judge-made rule is consistent with Title VII. And we submit that it is not. It’s not because this Court has said that Title VII aims to eradicate all discrimination in the workplace.

But the background circumstances rule doesn’t do that. It doesn’t eradicate discrimination; it instructs courts to practice it by sorting individuals into majority and minority groups based on their race, their sex, or their protected characteristic, and applying a categorical evidentiary presumption not in favor of but against the non-moving party based solely on their being in a majority group, however you define it.

Ames v. OH Dept. of Youth Services – Oral Arguments

Title VII was created to get rid of discrimination, yet this “background circumstances rule,” something made up by courts and is not law, actually tells the court to discriminate? Again, this is not based on a law passed by Congress, but by a “rule” established by one or more judges, in violation of the law.

But that’s not consistent with the statute that tells us that we are supposed to protect all individuals from individual discrimination based on the individual case. And it’s not consistent with McDonald versus Santa Fe Trail, where this Court says that all individuals, whether in majority or minority groups, are protected by Title VII under the same terms and the same standards.

For these reasons, we urge the Court to reverse the judgment of the Sixth Circuit.

I welcome the Court’s questions.

Ames v. OH Dept. of Youth Services – Oral Arguments

Questions for Mr. Wang

It took no time at all for the justices to start their questions. Justice Thomas starts off with a question about precedent.

JUSTICE THOMAS: What do you do with Respondent’s argument that this is merely an application of our precedents?

1. WANG: I don’t think it is an application of this Court’s precedents, Your Honor, and — and, Justice Thomas, it’s because this Court’s precedents in McDonnell Douglas lays out a framework, and then McDonald versus Santa Fe Trail says they apply to the same terms and same standards.

But the background circumstances rule isn’t the same term. It’s not the same standard. The Sixth Circuit says it’s an additional burden. And in prior cases, it says it’s a difficult and more demanding burden on majority-group plaintiffs. So I don’t think it’s consistent with this Court’s precedents.

Ames v. OH Dept. of Youth Services – Oral Arguments

So Mr. Wang doesn’t think the Sixth Circuit’s decision followed Supreme Court precedent by adding the greater burden to majority-group plaintiffs. Next, Chief Justice Roberts puts the question in another context.

CHIEF JUSTICE ROBERTS: What if you have a situation where, say, 60 employees in the company, say, you know, a half dozen African Americans, an African American is — applies for a job, there’s an opening, he doesn’t get it, it remains open for, you know, a couple of months?

Does that satisfy the prima facie case if he said it was because of discrimination?

1. WANG: Assuming that they are qualified and —

CHIEF JUSTICE ROBERTS: Yeah, yeah. Yeah.

1. WANG: Yes.

CHIEF JUSTICE ROBERTS: Okay. Now — I’m sorry. Is that — that’s a yes?

1. WANG: Yes, that — that — that is true.

CHIEF JUSTICE ROBERTS: Okay. Now let’s say it’s the same thing, but the applicant is white, exactly the same facts, and she says: I was discriminated — I lost the job because of discrimination on the basis of race. Does that start — state a prima facie case?

1. WANG: I think it states a prima facie case, but I think it goes in — perhaps, Your Honor, it goes to the idea of getting employers to come forward with an explanation and then providing sort of a legitimate non-discriminatory reason, which I don’t think is a high burden at all. I think, as Reeves, as Burdine, as Furnco have made clear, they just have to provide some sort of legitimate non-discriminatory reason to answer or to rebut the prima facie case.

Ames v. OH Dept. of Youth Services – Oral Arguments

So what appears to be an obvious case of discrimination can be stopped if the employer simply shows there was a non-discriminatory reason for the action.

Justice Barrett dealt with a claim that, should the court agree with petitioner, it would open almost any case where someone did not get a job to claims of discrimination.

JUSTICE BARRETT: Counsel, what do you have to say to the Department’s contention that this is just going to throw the door wide open to Title VII suits because now everybody can say, hey, this was discrimination on the basis of race, gender, et cetera?

1. WANG: Well, I don’t think that contention is well taken, Justice Barrett, and for two reasons. The first is this is an evidentiary question that arises at summary judgment. So they’ve already have gotten past a discussion with EEOC, plausibility under Iqbal and Twombly, a motion to dismiss. So I think, if there were a floodgate issue, that would be sort of more — more on the pleading standards.

I think the second point is — is merely sort of an empirical question. And, as we lay out and as Judge Kethledge lays out in his concurrence, about more than half the circuits don’t apply the background circumstances rule. We don’t see those circuits having some sort of flood of litigation.

And I don’t think there’s a huge delta between those circuits that apply it and — and those circuits that don’t apply it, which I think goes to the narrow question that’s before the Court today.

Ames v. OH Dept. of Youth Services – Oral Arguments

Other circuits do not use the “background circumstances rule,” and they do not have a problem. Neither does the EEOC. So there’s no reason to believe removing the rule from all circuits would make much of a difference.

Justice Kavanaugh wanted to know what Mr. Wang wanted from the court.

JUSTICE KAVANAUGH: So — so all you want for this case is a really short opinion that says discrimination on the basis of sexual orientation, whether it’s because you’re gay or because you’re straight, is prohibited, and the rules are the same whichever way that goes?

1. WANG: That — that’s right, Your Honor. And I —

JUSTICE KAVANAUGH: That’s all we need to say, right?

1. WANG: I — I think that would be something — well, I think you’d also have to say reverse or vacate.

(Laughter.)

1. WANG: I want to look out for my client here a little bit.

But — but, certainly, as to the reasoning, yes, I — I entirely agree. I think that this is a narrow question, and it’s a question of is there an added burden.

And — and if the answer, I think, under McDonnell and under Title VII’s text is no, then — then this goes back to — to the lower courts to resolve.

Ames v. OH Dept. of Youth Services – Oral Arguments

A simple ask of the court: Make sure that every case before the court is treated the same, regardless of whether they are part of some “protected class” or not.

Arguments of Ashley Robertson, as Amicus Curiae

Ms. Robertson, Assistant to the Solicitor General of the United States offered her arguments in support of vacating the lower court decision.

1. ROBERTSON: Mr. Chief Justice, and may it please the Court:

The court of appeals applied a different and more difficult standard to Petitioner because it considered her a member of the majority, but Title VII draws no distinctions between plaintiffs based on their race, religion, sex, or other protected characteristic.

That alone is reason to vacate the decision below, that the Sixth Circuit’s test would have been wrong if applied even-handedly.

Ames v. OH Dept. of Youth Services – Oral Arguments

Ms. Robertson gets right to the point. While the court of appeals applied a standard, it was not based on the law, but their own apparent desire to discriminate against what they see as the majority. That alone should be enough to vacate their decision.

But Ms. Robertson goes further, claiming that, even if the court had applied their test even-handedly, it would have been wrong.

The Court required evidence, reason to suspect an employer usually discriminates against a group, that the statute does not, and it required more evidence to make out a prima facie case than this Court has held is necessary, including in McDonnell Douglas itself.

That heightened standard risks screening out cases with merit and complicates litigation by focusing on whether to shift a burden of production that Ohio had already met in this case.

The Court should vacate and remand for the court of appeals to apply the proper standards in the first instance, including to consider Ohio’s alternative arguments for why summary judgment might still be proper.

I welcome the Court’s questions.

Ames v. OH Dept. of Youth Services – Oral Arguments

The goal of the court should not be to screen out cases which may have merit, especially because of some “protected class”.

In response to a question from Justice Jackson, Ms. Robertson brings up an interesting point. Does a lack of evidence of discrimination against a group mean there cannot be discrimination against an individual?

So what the Sixth Circuit did here, for instance, by asking for a reason to think that an employer usually discriminates against a group, requires evidence that a plaintiff wouldn’t need to establish liability under the statute because, of course, even if an employer generally treats a group well, if a plaintiff has evidence that the employer discriminated against her, she should be able to proceed.

Ames v. OH Dept. of Youth Services – Oral Arguments

Later, in response to a question from Justice Alito, Ms. Robertson pointed out how she believes the Sixth Circuit got it wrong.

1. ROBERTSON: I think it’s important to distinguish between two ways that a court might take race into account. The first is the way that the Sixth Circuit did, which is tell me your race and I will tell you how much evidence you need to — to produce, or you’ll — or I’ll apply a different standard. That would be wrong at any stage in the proceeding.

JUSTICE ALITO: Okay.

1. ROBERTSON: That’s not to say that race is irrelevant in a race discrimination case or that sex is irrelevant in a sex discrimination place. …

Second, courts can consider a plaintiff’s identity to help them draw inferences from the evidence in the record. So comments that look neutral in a vacuum might take on a different valence when directed at a certain group.

Ames v. OH Dept. of Youth Services – Oral Arguments

In other words, it’s not that race doesn’t matter in discrimination cases, but that your burden of proof should not be based on race, sex, or any other grouping.

1. Elliot Gaiser, Solicitor General of Ohio, for the Respondents

The final attorney to speak was Mr. T. Elliot Gaiser, Solicitor General for the State of Ohio. As you might expect, Ohio sees the facts of the case differently.

1. GAISER: Mr. Chief Justice, and may it please the Court:

Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics. But that is not what happened in this case.

When Governor DeWine took office in January 2019 and appointed a new cabinet-level director of the Ohio Department of Youth Services, the state’s juvenile corrections system, Petitioner was an unclassified civil servant, effectively an at-will political appointee.

She claims the Department took two adverse actions against her in the first five months of the administration, denying her a promotion and demoting her because of her sexual orientation.

But, after discovery, she could not establish that anybody was motivated by sexual orientation or even knew her sexual orientation, nor the orientation of the unclassified political appointees, Ms. Frierson and Mr. Stojsavljevic, that she points to as comparators.

Ames v. OH Dept. of Youth Services – Oral Arguments

Wait a second. Doesn’t the premise of a “majority group” include the assumption of membership in that group unless there is evidence to the contrary? Wouldn’t it be the assumption that Ms. Ames, Ms. Frierson, and Mr. Stojsavlijevic are heterosexual?

In other words, she failed to make out a prima facie case under the first step of McDonnell Douglas that should apply to every Title VII plaintiff. She didn’t provide evidence that, to quote Furnco, “if otherwise unexplained, raises an inference of discrimination.”

Ames v. OH Dept. of Youth Services – Oral Arguments

I suppose that would be true, if the people who were chosen to fill these two positions had applied for the job like the others, had interviewed for the job like the others, and were at least as qualified as the others. Then again, since neither person applied for the job, why were they chosen? One distinguishing factor is their sexual orientation. And since the fundamental assumption of majority groups is that most people are part of them, that seems to be a prime facia case to me.

Whether that evidentiary standard is framed as background circumstances, as in Parker, or circumstances which give rise to an inference of unlawful discrimination, as in Burdine, this Court has said a prima facie case under Title VII must be complete enough for the court to enter judgment for the plaintiff before the burden shifts to the employer.

Because the best reading of the Sixth Circuit judgment applies that standard, this Court should affirm.

Ames v. OH Dept. of Youth Services – Oral Arguments

Remember this statement, because it will become very important during the justices’ questioning.

If this Court nevertheless holds Petitioner made out a prima facie case on these facts, then McDonnell Douglas has effectively two prongs, and the Court will have made Title VII that unusual statute that presumes liability for employers and swallows what remains of at-will employment.

I welcome the Court’s questions.

Ames v. OH Dept. of Youth Services – Oral Arguments

That seems to be the logic of Mr. Gaiser’s argument is we got the answer we want, so please don’t overturn it. During questioning, I think Mr. Gaiser really stepped in it when he answered a question from Justice Kagan

JUSTICE KAGAN: Mr. Gaiser, I mean, you can say, well, there’s language. I mean, I think that that’s the absolutely critical language in this opinion. Because Ames is heterosexual, she must make a showing in addition to the usual ones for establishing a prima facie case.

And then it says, you know, Ames’s prima facie case would have been easy to make had she belonged to the relevant minority group, here, gay people.

So, I mean, this is what the Court did.

Ames v. OH Dept. of Youth Services – Oral Arguments

The Sixth Circuit Court clearly stated that Ms. Ames’ case would have been easily made if she were part of the relevant minority class. Meaning, because she was not gay, she had a higher burden to prove her case had merit. This is where Mr. Gaiser had to back-peddle.

1. GAISER: Well, and we can’t retreat from what the Court here said, but we think the best way to construe that language is consistent. But, nevertheless, I think that —

JUSTICE KAGAN: Well, the best way to construe that language is, like, as the language says.

1. GAISER: Well, Justice Kagan, yes, the Court said what it said. The important point is the prima facie step this Court has laid out needs to be complete enough before the employer has any burden under Title VII to show an inference of discrimination.

Ames v. OH Dept. of Youth Services – Oral Arguments

So according to Mr. Gaiser, the question before the court, if the Sixth Circuit erred, doesn’t matter. When the Sixth Circuit denied to review the case, even though they admitted Ms. Ames had made her prima facia case because she was heterosexual, is not the point. So, did she make the prima facia case? The court clearly stated she did.

JUSTICE KAVANAUGH: You — you agree that those passages are wrong?

1. GAISER: We’re not defending the exact language there. This — this per curiam, we asked for oral —

Ames v. OH Dept. of Youth Services – Oral Arguments

So let me get this right. Ohio is defending the case, but not the language the court used in the case? I’ve heard this before, from my own lips, but this is a different situation.

JUSTICE KAGAN: I mean, the exact language or you’re defending something like that language? I — I mean, it’s a little bit of a peculiar situation, isn’t it, because this is what the court said. And you’re up here, and I don’t know exactly what to make of this, that — are — do you think that that’s right, or do you think that it’s wrong?

1. GAISER: I think the idea that you hold people to different standards because of their protected characteristics is wrong. And if there’s any upshot from this case, let reverse discrimination completely fall out of the Federal Reporter.

Ames v. OH Dept. of Youth Services – Oral Arguments

If the State of Ohio believes reverse discrimination is wrong, why are they fighting to prevent a case about reverse discrimination from continuing? I agree this argument just doesn’t make sense.

JUSTICE KAGAN: — I — I — I guess my reaction to a lot of what you’re saying is this: You say you agree with your friends on the question that we took this case to decide. The question presented is whether a majority-group plaintiff has to show something more than a minority-group plaintiff, here, whether a straight person has to show more than a gay person. Everybody over here says no. You say no too. That was the question that we took the case to decide.

And now you’re asking us to opine on various other aspects of how the McDonnell Douglas test works, what we should think of the first step as doing, then what we should think of the second and third steps as doing, that are, you know, really not intertwined at all with that question.

Whatever McDonnell Douglas does, it does for majority-group plaintiffs and minority-group plaintiffs alike is all that we have to say. Why shouldn’t we approach the case in that way?

Ames v. OH Dept. of Youth Services – Oral Arguments

And attorneys wonder why people hate them. Here you have a simple question presented to the court.

Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Ames v. OH Dept. of Youth Services – Petition For A Writ Of Certiorari

A question where all the parties to the case agree the answer should be no, but Mr. Gaiser, representing the State of Ohio, doesn’t want reversed? This idea of the ends justifying the means is what so many American find disgusting about the legal profession.

1. GAISER: Well, I think there are two responses to that, Justice Kagan.

First of all, while we all agree that everyone should be treated equally, we don’t agree about what that prima facie step actually looks like when we do that.

JUSTICE KAGAN: Yes, I know. That’s exactly what my — my — my point is. But that’s — that’s — that’s orthogonal to the question we took. So, I mean, why would we use this case, which is about the — whether a majority-group plaintiff has an extra burden, to opine on a range of things that have nothing to do with that question?

1. GAISER: Well, so what the Sixth Circuit did here, that’s — this is my second reason, Justice Kagan, if the first one doesn’t satisfy you — is exactly what we think every court should do: ask for enough evidence to raise an inference of discrimination.

And simply going through those four prongs, copy/pasting McDonnell Douglas with subbing out racial minority for any particular protected group, doesn’t do that. It doesn’t satisfy what this Court said in Reeves and Burdine in Footnote 6 and 7.

And so our thought is the Court should still affirm because what the Sixth Circuit’s judgment did here is what we ask every court to do at the first step of McDonnell Douglas even if we agree that’s saying that an additional burden is a mischaracterization of what this Court has said in the past.

Ames v. OH Dept. of Youth Services – Oral Arguments

In short, we agree that the Circuit Court should not have dropped the case because it is unfair, but the State of Ohio doesn’t want the Supreme Court to reverse, because Ms. Ames hasn’t made the case that she has not had a chance to argue yet.

I’m sorry, but I find Mr. Gaiser’s argument disgusting.

Mr. Wang’s Rebuttal

Since Mr. Wang represents the petitioner, and therefore argued first, he gets a chance to rebut the other arguments.

1. WANG: Thank you, Mr. Chief Justice. I’ll be very brief.

I — I just want to conclude, I think, with several members of the Court have talked about this theme, and it’s actually something that — that my co-counsel, Mr. Gilbert, and I talked about when entering the Court this morning, which is, I think, what this case is all about, and those are the four words on the side of this building: equal justice under law, equal justice under law.

Ames v. OH Dept. of Youth Services – Oral Arguments

“Equal justice under law.” Is that too much to ask from the Supreme Court? Was it too much to ask the Circuit, or even the District courts? If everyone agrees that should be the goal, then why is the State of Ohio fighting so hard against it?

Now I know that sometimes we don’t fulfill that promise. I understand that. But, at the heart of this case, at bottom, all Ms. Ames is asking for is equal justice under law. Not more justice, not more justice, but certainly not less and certainly not less because of the color of her skin or because of her sex or because of her religion.

We’re simply asking for equal justice under law because I think that’s what Title VII says, and I think that’s consistent with what this Court has held in numerous cases, and it’s consistent with Congress’ intent in passing a civil rights law to protect the civil rights of all Americans.

Ames v. OH Dept. of Youth Services – Oral Arguments

Conclusion

As those words on the facade of the Supreme Court state, equal justice under law. Is that too much to ask? Is it too much to be judged on the merits of the case, rather than the color of someone’s skin or their sexual preferences?

I know it’s the job of an attorney to represent his client to the best of his abilities, which makes me wonder how someone like T. Elliot Gaiser could argue such a case. How can you claim “we all agree that everyone should be treated equally,” yet oppose a decision to treat all people equally? If, as Mr. Gaiser claimed in court, Ms. Ames did not present a prima facia case, a claim flatly denied by the Sixth Circuit Court of Appeals, then let her have her day in court and show she is wrong.

Personally, I don’t know how someone could look at the facts of the case and not see the strong possibility, even the prima facia case, of discrimination. Then again, I’m not an attorney, I’ve never played one on TV, and even if I had, I hope I would never sell my soul to argue against such injustice.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 22, 2025

• Why does the Supreme Court go gaga just about every time abortion comes before them.
• Coalition Life sued the city of Carbondale, Illinois, claiming a the city violated their rights protected by the First Amendment.
• This time, the Supreme Court wouldn’t even take the case.

Free speech jurisprudence has rested on shaky ground for decades in this country. Looking back at cases like Hill v. Colorado, Austin v. Reagan National Advertising of Austin, and Dobbs v. Jackson Women’s Health have left a confusing and contradictory morass of precedence, most if not all of it contradicting the Constitution of the United States. With the recent case Coalition Life v. City of Carbondale, Illinois, the court had the opportunity to set the record straight once and for all. Instead, the court whiffed, and declined to even hear the case.

Background

As always, the best place to start is at the beginning.

Petitioner Coalition Life is a Missouri nonprofit that organizes sidewalk counselors to counsel, educate, pray, display signs, and distribute literature outside abortion clinics. Their goal is to engage in “one-on-one conversation in a calm, intimate manner,” as they find that approach most effective. Complaint in No. 3:23–cv–1651, p. 3, ¶10. The organization prohibits its counselors from engaging in intimidating or threatening behavior.

Coalition Life v. City Of Carbondale, Illinois

Sounds like a simple example of exercising the right to peaceably assemble to me, but if it were that simple, I wouldn’t be writing about it here.

Until the passage of Ordinance No. 2023–03, Coalition Life counselors engaged in sidewalk counseling outside abortion facilities in Carbondale. But, the new ordinance “severely hinder[ed]” their ability to do so. Id., at 11, ¶48. The newly enacted 100-foot buffer zone meant that Coalition Life counselors were forced to stand far away from those with whom they wished to speak. In some cases, sidewalk counselors had nowhere to stand but in the middle of busy roads, rendering intimate counseling activities effectively impossible.

Coalition Life v. City Of Carbondale, Illinois

Imagine being told that you cannot come within 100 feet of a location simply because you disagree with its stated purpose and wish to discuss that fact with their customers. Again, we aren’t talking about intimidating behavior, that was prohibited by Coalition Life. And if someone prevented someone from entering said business, I believe that would be criminal as well. But according to the complaint, none of that ever happened with members of Coalition Life.

Coalition Life sued the city of Carbondale, alleging, among other things, that the ordinance violates the First Amendment.

Coalition Life v. City Of Carbondale, Illinois

Problem number one for Coalition Life, is this ordinance cannot violate the First Amendment because it wasn’t passed by Congress. The First Amendment reads…

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,…

U.S. Constitution, Amendment I

Since Congress didn’t make this law, it cannot violate the First Amendment, but that doesn’t mean the act was constitutional.

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty;

Colo. Const. Art. II, Section 10

Since this is a violation of the state Constitution, it’s not within the jurisdiction of the federal judiciary. However, that isn’t the only violation of the United States Constitution.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;  nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV, Section 1

Since Colorado made and enforced a law that abridged the right of freedom of speech, and deprived people of the liberty to engage in conversation with others without due process, it is a clear violation of of the Fourteenth Amendment.

The complaint may have mentioned other violations, but it appears only the First Amendment question was brought to the court.

Needless to say, the city of Carbondale wanted this suit to go away.

When Carbondale moved to dismiss the suit under Hill, Coalition Life responded that over the years Hill has been eroded, but it nevertheless conceded that its claims were foreclosed insofar as Hill remains good law.

Coalition Life v. City Of Carbondale, Illinois

When the city moved to dismiss the suit, they pointed to a Supreme Court decision known as Hill v. Colorado. This leads us to the second problem with for Coalition Life’s case: The belief that the previous decision of the court is “law.” It is not. Hill is precedent, showing how the court had previously decided a similar case. The importance of this will become evident as we get into the dissent.

The District Court dismissed the suit on the ground that Hill and binding Seventh Circuit precedent controlled. Coalition for Life St. Louis v. Carbondale, 2023 WL 4681685, *1 (SD Ill., July 6, 2023). The Seventh Circuit affirmed on the same ground, acknowledging the plaintiffs’ assertion that Carbondale’s buffer zone was “‘modeled after and nearly identical’” to the one upheld in Hill. 2024 WL 1008591, *1 (Mar. 8, 2024). Because Hill was the exclusive basis for both decisions below, this case clearly and cleanly presents the question of Hill’s viability.

Coalition Life v. City Of Carbondale, Illinois

So this whole case was decided because it matched the case Hill v. Colorado, but was that case rightly decided?

Thomas Dissent

This history of this particular violation of people’s rights goes back to the Hill case from the year 2000.

In Hill v. Colorado, 530 U. S. 703 (2000), this Court upheld a state law restricting peaceful speech within 100 feet of abortion clinics.

Coalition Life v. City Of Carbondale, Illinois

What made this law restricting free speech special? Why did the Hill court uphold the law?

Hill’s abortion exceptionalism turned the First Amendment upside down. As Hill’s author once explained, the First Amendment reflects a “‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 913 (1982) (majority opinion of Stevens, J.). That principle applies with perhaps its greatest force to speech that society finds “offensive” or “disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Yet, Hill manipulated this Court’s First Amendment jurisprudence precisely to disfavor “opponents of abortion” and their “right to persuade women contemplating abortion that what they are doing is wrong.”

Coalition Life v. City Of Carbondale, Illinois

Justice Thomas makes a couple of very important points. The court has used abortion as an excuse to ignore not only the First Amendment, but their oaths and duty as justices. As the author of the Hill opinion, Justice Stevens I believe, wrote, the First Amendment reflects a profound national commitment to debate on public issues. Yet the Hill court, along with the District and Circuit courts in this case, ignored that commitment, apparently for one reason and one reason only: To stifle debate about abortion.

To be sure, this Court has not uttered the phrase “we overrule Hill.” For that reason, some lower courts have felt compelled to uphold Hill-like buffer zones around abortion clinics. See, e.g., Vitagliano v. County of Westchester, 71 F. 4th 130, 141 (CA2 2023). This case is another prime example of that trend, and “[o]ne can hardly blame [lower courts] for misunderstanding” when “[w]e [have] created . . . confusion.” Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from denial of certiorari). We are responsible for resolving that confusion, and we should have done so here.

Coalition Life v. City Of Carbondale, Illinois

In 2000, the State of Colorado passed a law intentionally restricting speech. While this may seem to be an obvious constitutional violation, the Hill court got it wrong.

It was clear at the time that Hill’s reasoning “contradict[ed] more than a half century of well-established First Amendment principles.” Id., at 765 (Kennedy, J., dissenting); see also id., at 742 (Scalia, J., joined by THOMAS, J., dissenting). A number of us have since described the decision as an “absurd,” “defunct,” “erroneous,” and “long-discredited” “aberration” from the rest of our First Amendment jurisprudence.

Coalition Life v. City Of Carbondale, Illinois

However, it wasn’t just the Hill court that got the First Amendment wrong, but Justice Thomas.

We have long stopped applying Hill. See, e.g., City of Austin, 596 U. S., at 76. And, a majority of this Court recently acknowledged that Hill “distorted [our] First Amendment doctrines.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 287, and n. 65 (2022).

Coalition Life v. City Of Carbondale, Illinois

It seems the court long ago saw a problem with their Hill precedent, specifically distorting their First Amendment doctrine. Did you notice that? Justice Thomas didn’t say that Hill distorted the First Amendment, but the courts’ doctrines did. That arrogance did not end there.

Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill’s defunct status. I respectfully dissent.

Coalition Life v. City Of Carbondale, Illinois

Don’t get me wrong, I agree with Justice Thomas that the court should have taken the case, but not for the same reason. He appears to want to establish a new precedent, while I want to restore the Constitution to its rightful place as the supreme law of the land.

Thomas’ Justification

When Coalition Life petitioned for their writ, the court declined to hear the case. Justice Alito said he would grant the petition, but Justice Thomas issued a dissent. Let’s look at Thomas’ view on Hill in more detail.

Hill involved a 1993 Colorado statute that established “buffer zones” around abortion clinics. The law made it a crime for any person, within 100 feet of any “health-care facility” entrance, to “knowingly approach” within 8 feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” Colo. Rev. Stat. §18–9–122(3) (2024). Put another way, Colorado’s law—still in effect today—prohibits unconsented “sidewalk counseling” within 100 feet of abortion clinics.

Coalition Life v. City Of Carbondale, Illinois

Colorado enacted what is commonly called a “buffer-zone” law. Actually this is a double-buffer, since within the 100 ft buffer of a health-care facility you are not allowed within the eight foot buffer of someone else, but only if you wished to exchange information.

Shortly after the law’s enactment, a group of self-described sidewalk counselors who sought to peacefully “educate” and “counsel” “passersby about abortion and abortion alternatives” challenged the law under the First Amendment. Hill, 530 U. S., at 708, 710 (internal quotation marks omitted). This Court upheld the law as a content-neutral time, place, and manner restriction.

Coalition Life v. City Of Carbondale, Illinois

This is one of the free speech violations that courts have adopted. As I pointed out, the Constitution of Colorado protects freedom of speech. Yes, you can be held accountable for the abuse of that right, but how is approaching someone to engage in that right abuse? The real question that should be asked is: Who has the responsibility to stop someone’s speech? Imagine if freedom of speech everywhere was treated the same way as Colorado treats it around health-care facilities. “Excuse me, is it OK if I wave and say hello to you?” “Do I have your permission to return the set of keys you just dropped?” “I’m sorry, is it OK if I drive past you with a sign on my truck?” But the court claimed that the state could abridge the freedom of speech as long as it wasn’t based on the content of that speech.

Hill’s errors were numerous. Whether Colorado’s law applies to a given speaker undeniably turns on “what he intends to say.” Id., at 742 (Scalia, J., dissenting) (emphasis in original). “A speaker wishing to approach another for the purpose of communicating any message except one of protest, education, or counseling may do so without first securing the other’s consent.” Ibid. Nevertheless, the Court deemed the law content neutral on the theory that it does not prohibit a particular viewpoint or a particular subject matter. Id., at 723. But, this Court had never—and since Hill, has never—taken such a narrow view of content-based speech restrictions. Buffer zones like the one at issue in Hill are “obviously and undeniably content based.” Id., at 742 (Scalia, J., dissenting); accord, id., at 767 (Kennedy, J., dissenting).

Coalition Life v. City Of Carbondale, Illinois

Which brings us to the idea of content based discrimination. It’s one thing to establish rules for conduct in public areas that are content neutral. The use of bullhorns or demonstrations that obstruct traffic, for example, but that is not what the Colorado law did. Rather, it determined that if the content was “oral protest, education, or counseling” and if that content was expressed outside of a “healthcare facility,” that speech was restricted.

Justice Scalia could identify only one explanation for the majority’s anomalous decision: “[T]he jurisprudence of this Court has a way of changing when abortion is involved.” Id., at 742. Hill reflects “the ‘ad hoc nullification machine’” that this Court “set[s] in motion to push aside whatever doctrines” happen to “stand in the way” of abortion.

Coalition Life v. City Of Carbondale, Illinois

Yes, this was content-based restrictions on free speech. If the content was pro-abortion, no problem, but if it was anti-abortion, Colorado wanted to censor it, at least outside “health-care facilities,” which was generally used as a euphemism for abortions clinics.

Conclusion

As Justice Thomas noted, at the court things change when abortion is in the mix. What we have here is another case of courts placing their opinions above the supreme law of the land.

This Court has received a number of invitations to make clear that Hill lacks continuing force. Some of those invitations have arisen in cases with thorny preliminary issues or other obstacles to our review. See, e.g., Bruni, 592 U. S. ___ (opinion of THOMAS, J.). But, no such obstacles are present here. It is undisputed that Carbondale’s ordinance is identical to Colorado’s law in all material respects. It is likewise undisputed that both the District Court and the Seventh Circuit dismissed Coalition Life’s suit exclusively on the ground that those courts felt bound by Hill. This case would have allowed us to provide needed clarity to lower courts.

Coalition Life v. City Of Carbondale, Illinois

I guess I’d call that a swing and a miss. Once again the court had a chance to fix a mistake from a previous court and didn’t. In Dobbs they fixed their decision in Roe, but here they failed to fix their mistake in Hill.

Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty. “We are responsible for the confusion among the lower courts, and it is our job to fix it.” Gee, 586 U. S., at 1059 (opinion of THOMAS, J.). I would have taken this opportunity to explicitly overrule Hill. For now, we leave lower courts to sort out what, if anything, is left of Hill’s reasoning, all while constitutional rights hang in the balance. I respectfully dissent.

Coalition Life v. City Of Carbondale, Illinois

Yes, the Supreme Court has failed to “provide clarity” in regard to their previous decision, but the fault is not all theirs. After all, the judges in the District and Circuit courts took oaths to support and defend the Constitution of the United States, not the opinions of other judges. If either of those courts in this case had bothered to look beyond precedent, they may have seen the Fourteenth Amendment violation. Since our law schools apparently do not teach the Constitution, placing precedent as their primary concern, it’s not really a surprise that the product of their education is so flawed. Perhaps one day we’ll find someone who will bring a truly constitutional argument to a case like this. Who knows, maybe such a well founded argument could even turn the heads of the justices of the Supreme Court. We can always hope and work toward that day.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 1, 2025

• The Fourth Amendment protects us from unreasonable searches and seizures.
• This includes the unreasonable use of force by law enforcement.
• Shouldn’t law enforcement be as responsible for their actions as any other citizen?

Most of us are aware of the Fourth Amendment’s Unreasonable Search and Seizure Clause. While definitions of what is “reasonable” have been argued since the Bill of Rights was ratified, it is pretty much agreed that the Fourth Amendment’s prohibition against unreasonable searches and seizures includes the use of unreasonable force during an encounter with law enforcement. What responsibility does law enforcement have in the initiation and escalation of a dangerous, possibly life threatening situation? That was the question in the case Barnes v. Felix.

Background

In the case before the Supreme Court of Barnes v. Felix, the question is not so much what is reasonable, but what evidence can the court consider when determining reasonableness.

The Fourth Amendment prohibits a police officer from using “unreasonable” force. …, this Court held that reasonableness depends on “the totality of the circumstances.” … But four circuits—the Second, Fourth, Fifth, and Eighth—cabin Graham. Those circuits evaluate whether a Fourth Amendment violation occurred under the “moment of the threat doctrine,” which evaluates the reasonableness of an officer’s actions only in the narrow window when the officer’s safety was threatened, and not based on events that precede the moment of the threat. In contrast, eight circuits—the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits—reject the moment of the threat doctrine and follow the totality of the circumstances approach, including evaluating the officer’s actions leading up to the use of force.

Barnes v. Felix – Petition for Certiorari

What standard should be used to evaluate law enforcements contribution to a situation where force may be warranted? The question of use of force has been of particular interest to me for many years. In every state in the union, a person has the right to use lethal force when there is an imminent threat of death or serious bodily injury to themselves or another innocent party. The one exception to this general rule is the person using lethal force cannot have initiated or escalated the situation that led to the threat.

On an April afternoon in 2016, Ashtian Barnes was driving his girlfriend’s rental car on the Sam Houston Tollway outside of Houston, Texas. That same afternoon, Officer Roberto Felix, Jr. was patrolling for toll violations. Through no fault of Barnes, there were toll violations associated with the rental car’s license plate, and Felix initiated a traffic stop. Felix asked Barnes for his license and the rental car’s insurance paperwork. Barnes indicated that the paperwork may be in the trunk, and Felix instructed Barnes to get out of the vehicle. A dash camera recorded what happens next: The car starts moving slowly forward, and Officer Felix jumps onto the door sill of the vehicle. In the same instant, Officer Felix begins shooting inside the vehicle, striking Barnes twice. Officer Felix then holds Barnes at gunpoint until he bleeds to death in the rental car.

Barnes v. Felix – Petition for Certiorari

The question before the court is not was the stop reasonable, or even was the officer’s shooting reasonable, but what evidence should the courts look at to establish said reasonableness?

Nathaniel A.G. Zelinsky – Attorney for the Petitioner

Oral arguments started with Mr. Zelinsky, attorney for Ms. Janice Hughes Barnes and the estate of her late son Ashtian.

1. ZELINSKY: Mr. Chief Justice, and may it please the Court: We are here today because Ashtian Barnes was shot and killed on the side of a Texas highway after being pulled over for unpaid tolls. The question before this Court is how to determine whether Ashtian’s Fourth Amendment rights were violated.

The Fourth Amendment prohibits unreasonable seizures. Justice Scalia was no fan of a totality-of-the-circumstances test, but, in Scott, Justice Scalia made clear that courts must “slosh through the fact-bound morass of reasonableness.”

In this case, the district court and the Fifth Circuit didn’t do that. Instead, they applied the “moment of the threat” doctrine.

According to the Fifth Circuit decision below, “we may only ask whether Officer Felix was in danger at the moment of the threat,” and “any of the officer’s actions leading up to the shooting are not relevant.”

This kind of legal amnesia is incompatible with precedent, conflicts with common law, and defies common sense.

Barnes v. Felix – Oral Arguments

How do we determine if Officer Felix’s actions were reasonable? Was it simply that at the instant he started shooting, his life was in danger? Or should the courts consider the officer’s actions, including jumping onto the sill of the vehicle, when it considers the reasonableness of his actions? The two doctrines the court talks about are “moment of the threat” and “totality of the circumstances.” The Fifth Circuit applied the “moment of threat” doctrine, meaning they gave no consideration to how Officer Felix’s actions may have contributed to the threat he felt at the time he used lethal force. While both the District and Circuit courts found the actions of Officer Felix reasonable, at least one of the judges wrote in his concurrence that the officer acted unreasonably.

Finally, as Judge Higginbotham underscored in his concurrence, the facts show that Officer Felix acted unreasonably. But this is a court of review, not of first view. The Court should rule for Petitioner on the sole question presented and remand for the lower courts to apply the correct constitutional standard.

I welcome this Court’s questions.

Barnes v. Felix – Oral Arguments

After his opening statement, Mr. Zelinsky answered questions from the justices.

JUSTICE THOMAS: Under your approach, what would that correct standard look like and how would it be applied here?

1. ZELINSKY: Justice Thomas, we think the standard is the “totality of the circumstances” standard that this Court articulated in Graham and Garner, Scott, and Plumhoff. In this particular case, it would require looking at more than just the two seconds in which Officer Felix was on the moving vehicle. It would require asking was there a reason for Officer Felix —

Barnes v. Felix – Oral Arguments

You will find this “two seconds” rule referred to often in this case. It’s related to the timeframe in which Officer Felix jumped on the moving vehicle and him discharging his weapon. Do we only consider the situation when Officer Felix is standing on the vehicle or the situation that put him there?

JUSTICE THOMAS: How much more than the — than the last two seconds?

1. ZELINSKY: Justice Thomas, if you include an extra three seconds, then you would look at the seizure in its totality.

I think that this Court shouldn’t be drawing bright-line rules on exactly how much of the seizure should or shouldn’t come in. That’s what Justice Scalia underscored in Scott. There are no rigid rules.

And courts can apply ordinary principles of relevancy and proximate cause to determine the — the reasonableness of a seizure.

Barnes v. Felix – Oral Arguments

So the plaintiff’s weren’t looking for a bright-line rule, meaning you can look back 2 seconds, or 5, 10, 30, etc. Rather they wanted courts to look both at the relevancy and proximity to the cause to determine if the actions of law enforcement were relevant.

JUSTICE KAVANAUGH: Was it reasonable to — for the officer to jump on the side of the car?

1. ZELINSKY: So, Just — Justice Kavanaugh, we don’t think it was in this particular case, but that’s precisely the issue that the lower courts couldn’t evaluate because they applied this legal amnesia and only look at the fact that the officer was on the moving vehicle. Judge Higginbotham, in his concurrence, looked to the totality of the circumstances and said: I think it was unreasonable in this case.

We want the opportunity for a court to be able to look at that and for us to be able to litigate that core claim.

Barnes v. Felix – Oral Arguments

I noticed during the oral argument that the justices frequently detoured from the question at hand: Should the court have used the “moment of threat” or “totality of circumstances” standard to evaluate the reasonableness of the officer’s actions? It seems the justices were very interested in whether or not Officer Felix’s actions were reasonable. Mr. Zelinsky was not the only person to attempt to bring a justice back to the question at hand. This really isn’t a surprise, since the topic of what is reasonable is so often argued in court.

JUSTICE ALITO: The — the reason for the question is to probe whether you are using the term “unreasonable” in a sense that’s different from the sense in which the Fourth Amendment prohibits unreasonable searches and seizures. So “unreasonable” has a particular meaning when the Court has to decide whether there was a Fourth Amendment violation. But, in lay speech, “unreasonable” could go to whether the action was prudent, whether it was a violation of best police practices or the practices of a particular police department.

Those are not necessarily the same thing. In fact, it seems that they’re probably different. So you are eliding these two different meanings of “reasonable.” Now maybe that’s — maybe that’s sound. Maybe that’s unsound.

1. ZELINSKY: Justice Alito, what we’re asking for is the standard that this Court has applied in Garner, Graham, and Scott and Plumhoff, which is you have to look at the — the balance here. There’s, on the one side, the state interest in seizing someone in a particular manner. On the other side, there is the harm to the suspect, here, the ultimate harm, the loss of his life.

The problem in this case is that the Fifth Circuit couldn’t engage in that core balancing because it couldn’t ask was there a really pressing reason for an officer to jump onto a car and give himself no other opportunity but to shoot the driver.

Barnes v. Felix – Oral Arguments

Was it reasonable for the officer to jump onto the sill of the car or not? Did Officer Felix take an otherwise simple traffic stop and escalate it by putting himself in a situation where deadly force was the only option? While that is a very interesting question, the argument Mr. Zelinsky is making is that the Fifth Circuit could not ask this question because they felt bound to the “moment of threat” doctrine.

JUSTICE ALITO: Well, would you be satisfied with a narrow holding that it is wrong to — it is wrong for a court to look just at the moment of the threat, that the court has to judge the reasonableness of the alleged unreasonable seizure based on — taking into account to whatever extent they are relevant the events that occurred before that? Would you be satisfied if we just did that —

1. ZELINSKY: I think we would, Justice —

JUSTICE ALITO: — and not get into these other, more difficult questions?

1. ZELINSKY: One hundred percent. I think it would be helpful if the Court makes clear that that means that you can look at the jump in addition to the shoot, right? That’s the core issue that we want to be able to litigate. But, yes, Justice Alito, we’d be happy with a very narrow holding.

Barnes v. Felix – Oral Arguments

All Mr. Zelinsky and his clients were asking for was an instruction from the Supreme Court that only looking at the moment of threat was not sufficient for determining reasonableness. Other attorneys would make grander claims, but they just wanted to Circuit Court’s decision vacated and remanded to be decided on more than just the moment of threat.

JUSTICE SOTOMAYOR: You’ve given up in your reply brief, I understood, that you’re not asking us to — the — the — to address the question of what an officer-created danger rule is like?

1. ZELINSKY: We’re not asking for an officer-created danger test at all.

JUSTICE SOTOMAYOR: And — and that wasn’t even addressed below, correct?

1. ZELINSKY: That’s correct.

JUSTICE SOTOMAYOR: Okay. Thank you.

Barnes v. Felix – Oral Arguments

One of the oft repeated points was a question of “officer-created danger.” Meaning that if the officer created the danger, it was not reasonable for him to use said danger as justification for the use of force. But isn’t that the exact same standard used in every state law regarding the use of lethal force in self-defense? If I cannot create a dangerous situation, then claim self-defense, why should law enforcement?

As I said, the justices spent a lot of time on the question of reasonableness rather than the standard for determining reasonableness, which led to this interchange between Justice Kavanaugh and Mr. Zelinsky.

JUSTICE KAVANAUGH: And when an officer jumps on the car, the deadly force can be avoided by — by the driver too.

1. ZELINSKY: Well, in this particular case, Officer Felix’s own expert testifies that Officer Felix shot so quickly, Ashtian Barnes didn’t have time to stop.

And — and if I could, let me sketch out, Justice Kavanaugh, why it’s so dangerous for you to shoot a driver. In fact, there is — I’m not aware of any police department that recommends that its officers shoot drivers.

The high likelihood — in this particular case, Ashtian Barnes didn’t immediately die. He was able to brake the car and put it into park. If he had been immediately killed, that car could have careened and crashed into the highway. Officer Felix put other people on that highway in grave, very serious danger that particular day.

So I don’t think it’s just a he’s jumping on to stop Ashtian from getting away. He’s also jumping on in a manner that is going to put a lot of other people at risk.

Barnes v. Felix – Oral Arguments

Again, not germane to the topic before the court, but an interesting question. Is it reasonable to shoot the driver of a moving motor vehicle? I’m sure there are times when it is, but this seems to not only be an escalation against Mr. Barnes, but a threat to the public at large. Based on research that Mr. Zelinsky brought, jumping on a moving vehicle isn’t the only dangerous actions repeatedly taken by law enforcement.

The other reoccurring fact pattern is a pattern where officers fail to identify themselves, and the suspect, exercising his or her own Second Amendment rights to self-defense, pulls out a firearm.

The Fifth Circuit alone has two cases in which they apply the “moment of the threat” doctrine. The cases are Cass and Royal, and they say: We can’t look at the fact that the officer failed to identify himself. We can only look at the fact that the officer faced a loaded gun.

Barnes v. Felix – Oral Arguments

Imagine someone comes to your door, or your vehicle, or just stops you on the street. Maybe they’re armed, maybe they’re just demanding information or that you take action. This could easily be seen as a threat, leading you to defend yourself by showing or possibly drawing your firearm. Since it appears most law enforcement is trained to draw and prepare to fire at the word “GUN!” this could easily end up badly for you. Now imagine the court only looks at the fact that the unidentified officer saw a firearm, and not the fact that the officer initiated, even escalated the situation to one of deadly impact? That’s what we’re talking about here.

JUSTICE SOTOMAYOR: What do you do with the cases cited by the other side where the Fifth Circuit does appear not to apply the “moment of threat” docket — doc — doctrine and does take into account more of the totality of circumstances?

1. ZELINSKY: So, Justice Sotomayor, let me give you three responses.

First, there’s never a Fifth Circuit case where they actually look at the officer’s prior conduct and say that’s part of the calculus and it goes against the officer. So it’s always it — it — whenever they might do it, it’s only in the officer’s benefit.

The second, the best case —

JUSTICE SOTOMAYOR: Some of my colleagues might agree with that. Why should we not?

1. ZELINSKY: Because you have to look — reasonableness. The framers gave us a test of reasonableness, and that is a — it’s a two-way street, not a one-way ratchet.

Barnes v. Felix – Oral Arguments

In the Fifth Circuit, there has NEVER been a case determined by “totality of circumstances” that did not benefit the officer, and Justice Sotomayor asks why her colleagues shouldn’t agree with that? Are you telling me that law enforcement has never escalated a situation into the use of force? Or does Justice Sotomayor believe her colleagues agree with her that law enforcement is never responsible for the use of force, even if they’ve initiated the situation that led to it?

Zoe A. Jacoby, Assistant to the Solicitor General

Next to offer arguments was Ms. Zoe Jacoby, Assistant to the Solicitor General. She was representing the Department of Justice, who agree with the Petitioner’s position.

1. JACOBY: Mr. Chief Justice, and may it please the Court:

The Fifth Circuit analyzed this case by examining only the so-called moment of the threat and categorically ignoring all prior events. None of the parties defends that approach. That is because reasonableness is assessed under the totality of the circumstances and pre-force events can be critical to that assessment.

Prior events often show that the force was reasonable. For example, police may have issued warnings or attempted deescalation, all of which a split-second “moment of the threat” doctrine misses. Of course, when officers face a moment of danger, that is by far the most important factor under Graham. But, in rare cases, a moment of danger doesn’t tell the whole story. If the danger was manufactured entirely by police conduct outside the bounds of reasonable behavior and not by the suspect’s intervening apparent misconduct, it is unreasonable to use force in the moment.

The panel’s approach fails to provide a constitutional backstop in those cases, and it disregards context that may show that force was reasonable in others.

I welcome the Court’s questions.

Barnes v. Felix – Oral Arguments

I think Ms. Jacoby’s argument is both succinct and convincing. Yes, what happens before the moment of threat puts the threat in context. Did the officer escalate or deescalate the situation? Was it the actions of the accused or the officer who initiated the moment of danger? Were the actions of law enforcement reasonable or not? This is what needs to be considered when determining the reasonableness of the actions of law enforcement.

Charles L. McCloud on behalf of Respondents

Next to argue was Charles McCloud on behalf of the respondents Roberto Felix, Jr. and County of Harris, Texas.

1. McCLOUD: Thank you, Mr. Chief Justice, and may it please the Court:

When an officer doing his duty confronts a threat to his safety or the safety of others, it is reasonable for that officer to use force to end that threat. That’s the conclusion this Court has consistently reached, and that’s what the Fifth Circuit correctly held below.

At the moment Sergeant Felix used force, he was clinging to the side of a fleeing suspect’s car, and Felix reasonably believed that his life was in imminent danger. That conclusion should end this case.

Barnes v. Felix – Oral Arguments

Yes, in general an officer has the reasonable authority to use force in response to a threat to his safety, but does that include when it is that officer who put himself in danger?

Petitioner’s contrary argument attacks a strawman. Let me be very clear. We are defending the decision below and the “moment of threat” doctrine as it actually exists. The core premise of that doctrine is that an officer doesn’t lose his right to defend himself just because he made a mistake at an earlier point in time.

Barnes v. Felix – Oral Arguments

In this case, the straw man is not being presented by the petitioners, but by the respondents. It was never a question of whether or not Officer Felix made a mistake, but whether or not he put himself in danger and used that as an excuse to execute a suspect he was investigating. Yes, execute, but of the facts I’ve found so far, no one has been able to determine if Mr. Barnes actions were malicious or merely accidental. Was Mr. Barnes attempting to evade paying tolls that had accrued to the rental car before he rented it, or was it a simple mishap when he attempted to get out of the car at the officers request, but failed to put the vehicle in park? We will probably never know.

But applying that rule does not require courts to ignore everything that occurred prior to the use of force. Like other circuits, the Fifth Circuit has repeatedly held that preceding events are relevant to the extent they inform the officer’s perception of the danger that he faced. The panel decision below repeatedly cited to and quoted from those very precedents. The panel did not and could not overrule them sub silentio.

Petitioner asked the Court to create a new breed of constitutional tort under which an officer facing the barrel of a gun loses his right to defend himself if he previously used bad tactics or poor planning.

Barnes v. Felix – Oral Arguments

Again, this straw man of “bad tactics or poor planning” is used. We’re not talking about a situation where the officer parked his vehicle in the wrong place or whether or not he forgot to bring a pen with him. Officer Felix is accused of jumping onto a moving vehicle and using that as an excuse to take another man’s life.

That’s contrary to precedent and common sense. Graham asks only whether an officer’s use of force was reasonable in the particular circumstances he faced. It requires courts to put themselves in the shoes of the officer who used force, not to second-guess every decision the officer made in some of the most stressful circumstances imaginable.

Barnes v. Felix – Oral Arguments

I’m not sure about precedent, but what is contrary to common sense is to believe that a law enforcement officer holds absolutely no responsibility when he or she contributes to a dangerous situation. This seems to be at the heart of Mr. McCloud’s argument.

And Plumhoff and Mendez rejected similar officer-created danger theories as illogical, unwarranted, and inconsistent with precedent. The Court should reject the theory again in this case and affirm the judgment of the court of appeals.

I welcome the Court’s questions.

Barnes v. Felix – Oral Arguments

Under Mr. McCloud’s theory, officers can create all forms of danger, without any reasonable cause to do so, yet cannot be held accountable. Does that sound reasonable to you? Should an officer be able to stop you and ask you questions at gun-point? After all, that is an “officer-created danger” without reason. Since the officer in that circumstance was in imminent threat of death or serious bodily harm, and the accused had not initiated or escalated the situation, wouldn’t they have the right to use deadly force to protect themselves from the officer that created this dangerous situation?

JUSTICE THOMAS: How would you assess the difference between the Fifth Circuit’s approach, what you — as you see it, and the “totality of the circumstances” approach, as we heard it this morning?

1. McCLOUD: So I don’t think that there is any difference between what the Fifth Circuit does and what Graham directs. Both —

JUSTICE THOMAS: No, I mean, as — what the Solicitor General and Petitioner, as they see the totality of the circumstances, not so much Graham.

1. McCLOUD: So the difference, I think, between our position and — and somewhat the government’s position is they want to include within the totality of the circumstances arguments that the officer escalated the danger or created the danger.

And we think that that is not a relevant consideration under Graham and under the Fourth Amendment. In those cases, the question is: Was there a legitimate threat that the officer is responding to?

Barnes v. Felix – Oral Arguments

In other words, Mr. McCloud seems to believe law enforcement officers should have absolute immunity for any danger to the public they create. I wonder if Mr. McCloud would still hold to that argument if law enforcement broke down his door and entered his home in the middle of the night with weapons drawn? Would he still find the officer created danger “not relevant”?

Much of the interactions between Mr. McCloud and the justices seemed to me to be him trying to skirt around this basic fact. Mr. McCloud’s position is to insure that police do not have the same burden of reasonableness as the average citizen. After all, any citizen on the street that uses deadly force in self-defense must also show that they did not initiate or escalate the situation which lead to the threat against them. Although Mr. McCloud likes to refer to “the officer making a mistake,” “bad tactics,” or “poor planning,” what he repeatedly pointed out in his responses to the justices’ questions was he did not want to consider if the officer had contributed or initiated the danger that he was in. Just look at this interchange between Mr. McCloud and Justice Sotomayor.

If your answer had been — if he had walked up in an unmarked car, in plain clothes, with a gun drawn, and this person — and he walked up to the car and this person took off and/or accelerated slightly, and he jumped on and shot blindly, do you think that’s reasonable?

1. McCLOUD: I think that would not be reasonable for a number of reasons.

JUSTICE SOTOMAYOR: All right. So you’ve given the game away because, at that point, you have to look at what the officer did.

1. McCLOUD: And, Your Honor, we agree that you can look at what the officer did. And the Fifth Circuit does look at what the officer did. The best example I can give you —

JUSTICE SOTOMAYOR: It didn’t in this case.

1. McCLOUD: In this case, that’s because the only argument that Petitioner made below, the only action she said you should look at, was an action based on officer-created danger.

JUSTICE SOTOMAYOR: And we have three judges who said we shouldn’t be limited in this way in the mine-run of cases, and we — and so we’re stuck with this. We think the — the judgment is right, but it wasn’t addressed at all. Officer-created danger wasn’t addressed.

And the other side says clearly it’s not raising it here.

Barnes v. Felix – Oral Arguments

Did Mr. McCloud actually say that courts can look at the officer’s actions, but not if the action was based on officer-created danger? Yes, he did. I guess Justice Sotomayor was correct: Mr. McCloud did give away the game.

So you can still look to things that the officer did prior to using force, but you cannot blame the officer for creating a bad situation and — and second-guess all of the decisions he made.

Barnes v. Felix – Oral Arguments

I don’t believe anyone was trying to second-guess all of the decisions the officer made, only the actions of him jumping onto a moving vehicle and shooting blindly inside.

Lanora Pettit, Principal Deputy Solicitor General,
Austin, Texas

The last to argue was Lenora Pettit on behalf of Harris County Texas.

1. PETTIT: Thank you, Mr. Chief Justice, and may it please the Court:

In the last 15 years, this Court has rejected at least three times that an officer’s otherwise liable conduct violates the Fourth Amendment because an earlier split-second decision made a confrontation more likely.

Barnes v. Felix – Oral Arguments

What was at question in the District Court was not a question of making a confrontation more likely, it was the reasonableness of jumping onto a moving vehicle and using lethal force. After all, expert testimony on behalf of Officer Felix showed that he “shot so quickly, Ashtian Barnes didn’t have time to stop.”

Properly understood, what Judge Higginbotham dubbed the “moment of threat” doctrine merely applies that rule. As this Court recognized in cases like Mendez and Sheehan, it is necessary because the Fourth Amendment must be applied by thousands of real cops in the real world without, in the words of Kentucky against King, an unacceptable degree of unpredictability.

Barnes v. Felix – Oral Arguments

So thousands of real cops cannot understand that escalating a situation may bring the reasonableness of their actions into question, but millions of gun owners are required to? It seems the entire argument of the respondents is to place law enforcement above the laws they enforce on the American people.

The moment — the officer-created risk theory which Petitioners have continuously pressed at least until the reply brief in this Court is antithetical to that proposition because it invites an open-ended subjective inquiry into the officer’s intent that cannot be conducted without the benefit of hindsight. It also, as Mendez recognized, involves tricky questions and fuzzy standards of causation that cannot be easily be applied.

Barnes v. Felix – Oral Arguments

Nowhere has anyone asked to look into an officer’s intent. In fact, Mr. Zelinsky specifically stated that such subjective analysis was not their intent, but the objective analysis of the reasonableness of the officer’s actions.

Because the Fifth Circuit has properly rejected that proposition, its judgment should be affirmed.

And I welcome the Court’s questions.

Barnes v. Felix – Oral Arguments

Because the Fifth Circuit gave them the answer they wanted, Officer Felix and Harris County, Texas want the court to stop there. But would that be justice? Would that be due process, a judicial process designed to protect the legal rights of the individual? I don’t think so.

Conclusion

There are two aspects of this case I want to comment on. First, the actual question before the court, when determining the reasonableness of a law enforcement use of force. Should the court only look at the moment of threat or at the preceding actions of all parties, including the officer-created danger? I think the answer is obvious that the totality of the circumstances, including any escalations and dangers created by the officer, need to be considered. If not, then we do not live in a constitutional republic, but a police state where law enforcement can commit crimes with impunity.

Second is the question of the reasonableness of Officer Felix’s actions. While there are a lot of facts that need to come out in court, based on what I’ve read from the Supreme Court case, I’ve come to the following conclusions. The reasonableness of jumping on the sill of a moving vehicle is questionable. Seeing as it appears the vehicle had just started moving, and was therefore going very slowly, I would not automatically find that unreasonable. However, discharging a firearm into the occupied cabin of a vehicle in that situation was most definitely not reasonable. The greatest risk to the officer in that situation was the vehicle running over his foot, not a life-threatening injury, and one easily mitigated by jumping back down. With no evidence or probable cause that Mr. Barnes was a danger to others, there was no justification for the use of deadly force.

This “Dirty Harry” mentality of escalating relatively minor situations into an excuse for deadly force not only makes these dangerous officers a threat to our communities, but gives reasonable excuses for people to not trust law enforcement in general. All in all, I would say that both the District and Circuit Courts made a bad situation worse. We’ll have to wait and see how the Supreme Court handles this case.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 18, 2025

• Most people know that the Fourth Amendment protects our right to not be unreasonable searched or seized.
• But what makes a search reasonable?
• In the legal profession, reasonable searches in traffic stop is based on the case Pennsylvania v. Mimms.

I doubt it would surprise you that I watch a fair amount of videos that involve interactions with the police. One question that comes up is when is an officers attempt to search or detain someone reasonable? One of the cases attorneys frequent refer to is Pennsylvania v. Mimms. So I decided it was worth some time reviewing that case.

Background

To understand the decision, it’s important to first understand the case.

After police officers had stopped respondent’s automobile for being operated with an expired license plate, one of the officers asked respondent to step out of the car and produce his license and registration. As respondent alighted, a large bulge under his jacket was noticed by the officer, who thereupon frisked him and found a loaded revolver. Respondent was then arrested and subsequently indicted for carrying a concealed weapon and unlicensed firearm. His motion to suppress the revolver was denied and after a trial, at which the revolver was introduced in evidence, he was convicted. The Pennsylvania Supreme Court reversed on the ground that the revolver was seized in violation of the Fourth Amendment.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

Put yourself in Mr. Mimms’ shoes. Personally, I expect the officer to ask the typical question, “Do you know why I pulled you over?” Instead, the officer asks you not only for your driver’s license and registration, but to get out of the car.

What is Reasonable?

This entire case, along with the protection of your rights, come down to whether or not it is reasonable for an officer to ask you to exit your car in that situation.

The Pennsylvania court did not doubt that the officers acted reasonably in stopping the car. It was also willing to assume, arguendo, that the limited search for weapons was proper once the officer observed the bulge under respondent’s coat. But the court nonetheless thought the search constitutionally in firm because the officer’s order to respondent to get out of the car was an impermissible “seizure.” This was so because the officer could not point to “objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

No one disagrees that the officers had a valid reason to pull Mr. Mimms over: His expired license plate. (Arguendo means “In the course of the argument.”) Under those circumstances, the officer also had a reasonable, articulable belief that a crime had been committed: He was driving an unregistered vehicle. This also justified requiring Mr. Mimms identification. But what was the reason to have Mr. Mimms get out of his car? The Pennsylvania Supreme Court stated that the officer could not point to an objective observable fact to support criminal activity or that there was a threat to police safety. So what made the order for Mr. Mimms to exist his vehicle reasonable?

The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer, and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

The State argues that it is reasonable to remove someone from his vehicle for the sole purpose that a face-to-face confrontation diminishes the possibility the driver can make unobserved movements. This is done for police safety, but what about the safety of the accused? I could understand asking the driver to get out of the car, but only if there was an articulable reason to believe the officer’s safety was compromised.

We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra at 392 U. S. 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

I recognize the dangers of police work. An officer is subjected to risk every time they answer a call or pull a vehicle over. However, by the court’s logic, every person accused could be required to be treated as a criminal without cause. Exiting a vehicle introduces risks to the accused. An unintended “furtive move” could easily lead to an overreach by the police. A slip or stumble in front of an officer who has been trained that every encounter with the public could present an unnecessary risk, could lead to dangerous police actions. In short, by training law enforcement that everyone is to be considered dangerous until proven otherwise, actually creates a dangerous imbalance of power leaving the average citizen at the whim of law enforcement, without any way to protect themselves.

“According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).”

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

While one study may show that 30% of police shootings occur during a traffic stop, that is not enough to show probable cause. For example, how many of those 30% of shootings involved people being pulled over for minor traffic violations? Has anyone compared that to how many of the registered owners of those vehicle came back with warrants? Even the court acknowledged the limitations of their data.

We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U. S. 218, 414 U. S. 234 (1973).

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

Again, by this logic, every police encounter should begin with handcuffs and a pat down. I mean, if every encounter with law enforcement has the same level of danger as other types of confrontations, they should be treated the same. But again, is that reasonable.

The hazard of accidental injury from passing traffic to an officer standing on the driver’s side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

This is a situation where it could be reasonable to ask (not demand) that the driver join the officer in a safer location. However, it is reasonable for a driver to not wish to risk injury by getting out of his vehicle into traffic. After all, a person’s vehicle is their property, and not that different from your home. Furthermore, the officer has the ability to mitigate his or her risk of standing beside the vehicle by placing his vehicle where it can help shield him from traffic.

Against this important interest, we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

This is not simply a question of “personal liberty,” but of a constitutionally protected right. One which should not be violated without due process, which includes making sure a law enforcement officer has a reasonable cause to ask a driver to leave their vehicle before ordering them to do so.

The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

There is a difference between being detained and being ordered out of your vehicle. Would this logic extend to a person’s home? Can law enforcement come to your home and order you to exit the residence? Furthermore, should law enforcement have other than honorable intentions, this not only exposes the accused to further harassment, but the physical intimidation of being ordered around without cause.

Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to the level of a “petty indignity.’” Terry v. Ohio, supra at 392 U. S. 17. What is, at most, a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

I wonder if the judges were pulled over for a minor traffic infringement find it a serious intrusion to be ordered to exit their vehicle without a good reason. Remember, this is a situation where law enforcement can, and has been known to, use their position to intimidate drivers into compliance, even self-incrimination.

Opinion

Now we get to the opinion of the court.

Respondent’s motion to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, the judgment of the Supreme Court of Pennsylvania is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

The court decided for the State, and sent the case back to the Supreme Court of Pennsylvania for further proceedings. The Supreme Court of the United States cannot order the Supreme Court of Pennsylvania to decide a certain way, but they can encourage that they do so.

Conclusion

Not only has the Supreme Court once again placed the interests of law enforcement above those of the general public. While I believe the vast majority of law enforcement are honest and honorable people trying to do a difficult job, there are those who use the badge as a power trip. They believe they have the power to order people around, without reasonable cause, and this case reinforces that belief.

The saddest part is that this case in NOT law ???, neither does it supersede the Constitution of the United States. That means law enforcement, who took an oath the support said Constitution, needs an articulable reason to order anyone around. Yet law enforcement and courts still infringe on the rights of Americans because of this case. To me, this is why it is so important that everyone needs to read and study the Constitution, because we cannot trust that the judicial system is familiar with it.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 4, 2025

• When police damage your home, who should pay?
• Police officers of the City of McKinney, TX damaged the home of Vicki Baker while apprehending a fleeing felon.
• Neither her homeowner’s insurance or the city would pay for the damages, so she sued.

When the government, in the form of the police, damages your property, who pays for it? In the case of Vicki Baker v. City of McKinney, TX the police had to damage her property to apprehend a fleeing felon. However, when the city refused to pay for the damages, Ms. Baker sued. The District Court found for her, but the Circuit Court overturned. When she asked the Supreme Court to review, they declined certiorari. Two justices expressed concern about the prospect of the government damaging homes without paying compensation.

Imagine the police have to enter your home, and in doing so, they damage your property. Who pays for those damages? Your insurance? The police? That was the controversy brought to the District Court. Before we dig into that though, let’s look at the background.

Background

On July 25, 2020, Wesley Little kidnapped a 15-year-old girl. After a high-speed car chase, Mr. Little entered the home of Vicki Baker. (Mr. Little had worked there previously as a handyman.) Ms. Baker’s daughter was there, and after letting Mr. Little into the house, she called police. When McKinney police arrived, they set up a perimeter around Ms. Baker’s home. Eventually, Mr. Little released the girl, who exited the house, and told the police that Mr. Little was armed, high on methamphetamine, and hiding in the attic. Little told the police that he was not going back to prison, that he knew he was going to die, and planned to shoot it out with the cops.

Police tried to drive Mr. Little out of the house with tear gas. When that didn’t work, officers detonated explosives to break down doors and used a “tank-like” vehicle to bulldoze the back yard fence. However, by the time police gained entry, Mr. Little had taken his own life. While the actions taken by the police were necessary and proper, they did leave approximately $50,000 in damage.

“‘The explosions left Baker’s dog permanently blind and deaf. The toxic gas that permeated the House required the services of a HAZMAT remediation team. Appliances and fabrics were irreparable. Ceiling fans, plumbing, floors (hard surfaces as well as carpet), and bricks needed to be replaced—in addition to the windows, blinds, fence, front door, and garage door. Essentially all of the personal property in the House was destroyed, including an antique doll collection left to Baker by her mother.’”

Baker v. City of McKinney – Sotomayor Statement

You may think that this damage would be covered by homeowners insurance, but it’s not. Moreover, it appears that homeowner’s insurance policies generally do not cover damages caused by government.

Baker, who bore no responsibility for what had occurred at her home, then filed a claim for property damage with the city. The city denied the claim in its entirety. Baker thereafter sued the city, alleging a violation of the Takings Clause. At the summary judgment stage, the District Court held that the City’s destruction of Baker’s property was a compensable taking under the Fifth Amendment. Baker v. McKinney, 601 F. Supp. 3d 124, 144 (E. D. Tex. 2022). Following trial, a jury awarded Baker nearly $60,000 in damages.

Baker v. City of McKinney – Sotomayor Statement

So far, things seem OK for Ms. Baker, but that was about to change. When the city appealed the District Court’s decision, the Fifth Circuit reversed, but why?

On appeal, the Fifth Circuit reversed. The court declined to adopt the city’s broad assertion that the Takings Clause never requires compensation when a government agent destroys property pursuant to its police power. Such a broad categorical rule, the Fifth Circuit reasoned, was at odds with its own precedent and this Court’s Takings Clause jurisprudence.

Baker v. City of McKinney – Sotomayor Statement

The Circuit Court didn’t completely agree with the city’s position that the Takings Clause never requires the government to compensate property owners for damage done while exercising their police powers. The Fifth Circuit thought that position was at odds with their precedent on the Takings Clause.

Instead, the Fifth Circuit adopted a narrower rule that it understood to be compelled by history and precedent: The Takings Clause does not require compensation for damaged property when it was “objectively necessary” for officers to damage the property in an active emergency to prevent imminent harm to persons.

Baker v. City of McKinney – Sotomayor Statement

Interesting. The Fifth Circuit did not come to this decision because of the Constitution, but because it’s what they had decided before. So let’s look at the Takings Clause and see if the Fifth Circuit’s precedent is constitutionally sound.

Takings Clause

We find the Takings Clause in the Fifth Amendment to the Constitution:

nor shall private property be taken for public use, without just compensation.

U.S. Constitution, Amendment V – Takings Clause

From this language, we find two criteria for the Takings Clause to be invoked. Private property must be taken, and it must be for public use.

Was Ms. Baker’s property taken? Not exactly. Her home wasn’t taken, neither was anything inside taken. Her home was damaged by police. Was her home acquired for public use? Again, not exactly. The damage done to her home was done while the police were exercising their legitimate powers, but that isn’t a taking for public use.

An argument could be made that the police took control of her home temporarily for the purpose of exercising their public duty to apprehend a fleeing felon, but that does not meet the history or language of the Takings Clause. However, there is another clause in the Fifth Amendment that may apply: The Due Process Clause.

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V – Due Process Clause

Ms. Baker has been deprived of her property, by having it damaged and therefore devalued without due process of law. Furthermore, under the Texas Penal Code, Title 7, Chapter 28, the actions of the police were criminal mischief.

Sec. 28.03. CRIMINAL MISCHIEF. (a) A person commits an offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys the tangible property of the owner;

Texas Penal Code, Title 7,Chapter 28, §28.03

In fact, the crime in this case is a third-degree felony.

(b) Except as provided by Subsections (f) and (h), an offense under this section is: …

(5) a felony of the third degree if:
(A) the amount of the pecuniary loss is $30,000 or more but less than $150,000;

Texas Penal Code, Title 7,Chapter 28, §28.03

Does this mean that the officers should be charged with criminal mischief? No. It is obvious that the police were acting within the city’s police powers.

Because the parties agreed that the McKinney police’s actions were objectively necessary, the Fifth Circuit concluded that Baker was not entitled to compensation. … Baker now petitions for certiorari and asks this Court to reverse the Fifth Circuit’s judgment.

Baker v. City of McKinney – Sotomayor Statement

While I agree with the Fifth Circuit’s decision that this is not a compensatable action under the Fifth Amendment’s Takings Clause, that doesn’t mean the City of McKinney should be off the hook. Ms. Baker, however, asked the Supreme Court to hear the case, known as a petition for certiorari.

Sotomayor Statement

While the court denied this petition without comment, Justice Sotomayor wrote a statement, joined by Justice Gorsuch, with her position on the case.

The Court’s denial of certiorari expresses no view on the merits of the decision below. I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so.

Baker v. City of McKinney – Sotomayor Statement

Justice Sotomayor makes a key point regarding government employees destroying private property without just compensation.

Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual. Under the Fifth Circuit’s decision, Baker alone must bear the cost of that public benefit.

Baker v. City of McKinney – Sotomayor Statement

Justice Sotomayor is correct in her statement, but appears not to realize that she just shot down her position regarding the Takings Clause. If McKinney had taken Ms. Baker’s home to build a park, that would meet the takings clause: Property was taken for public use. However, what happened to Ms. Baker, as the justice points out, the police destroyed (damaged) Baker’s home for a public benefit, not public use. In support of her position, Justice Sotomayor points to the case Armstrong v. United States, where she finds:

The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Armstrong v. United States, 364 U.S. 40 (1960)

However, both Justices Black (from Armstrong), and Sotomayor (from Baker), are rewriting the Constitution to get it to say what they want it to say: “takings” includes “damage” and “public use” includes “public benefit”.

A Just Resolution

All parties agree that the actions of the McKinney police were objectively necessary, and therefore justified. And while the Supreme Court did not explain why they refused to hear the case, I do think there is a just solution to this case.

The city of McKinney has deprived Ms. Baker of her property. That is not disputed. Ms. Baker bore no responsibility for what happened to her home. That, too, is plainly obvious. The city denied Ms. Baker’s claim, though the reasoning behind that decision was not included in Justice Sotomayor’s statement. But did Ms. Baker receive due process when the city of McKinney destroyed her property?

due process:
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

due process – The Free Legal Dictionary

I would say the answer is no. The City of McKinney deprived her of her property using government activities that were designed to safeguard the legal rights of the public at large, but not of the individual. Therefore, the only just decision I can think of would have been to find for Ms. Baker and have the City of McKinney pay for the damages to her home. Not on the grounds of the Takings Clause, but the Due Process Clause.

Conclusion

This was another example of why it’s important that both the attorneys and judges in a case be familiar with the text of the Constitution rather than just the commentary about it, often referred to as “constitutional law.” Would the judges in any of these courts have looked at the case differently if it had been presented as a “deprivation of property without due process” rather than a “takings”? Remember, the judges in these cases are deciding based on the facts of the case, and bad facts make bad decisions.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 28, 2025

• Who decides what’s appropriate for minors?
• Who decides what belongs in the public library?
• Should it be librarians or the people’s representatives?

Who decides what is appropriate for public libraries? That is at the heart of the case Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. The representatives of the people of Arkansas passed a law, Arkansas Act 372, which both established a crime of furnishing a harmful item to a minor and established guidelines for selection, relocation, and retention of such materials. A group of libraries, librarians, and related organizations sued Arkansas’ 28 prosecuting attorneys in the federal District Court for the Western District of Arkansas. The District Court issued a preliminary injunction, preventing the law from going into effect. Does it?

Background

In March of 2023, the Arkansas Legislature passed, and Governor Sarah Huckabee Sanders signed, Arkansas Act 372. The stated purpose of this was was:

TO AMEND THE LAW CONCERNING LIBRARIES AND OBSCENE MATERIALS; TO CREATE THE OFFENSE OF FURNISHING A HARMFUL ITEM TO A MINOR; AND TO AMEND THE LAW CONCERNING OBSCENE MATERIALS LOANED BY A LIBRARY.

Arkansas Act 372

On June 2, 2023, a group of public libraries, library organizations, professional libraries, and others sued, claiming that sections 1 and 5 of the law were unconstitutional. Specifically:

Sections 1 and 5 of the Act remain vaguely worded and susceptible to multiple meanings; Section 1 violates the due process rights of professional librarians and booksellers and the First Amendment rights of library and bookstore patrons; and Section 5 empowers local elected officials to censor library books they feel are not “appropriate” for citizens to read and allows (if not encourages) content- and viewpoint-based restrictions on protected speech without any compelling governmental purpose.

Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. – Injunction

The libraries moved for a permanent injunction, preventing the law from being enforced, which the court granted. However, that injunction, and in fact the entire case, is legally moot.

Claims of the Plaintiffs

As I quoted above, the plaintiffs claim that the law violates their due process rights. However, after reviewing their complaint, I find this claim questionable at best.

First of all, while the complaint includes three counts where plaintiffs claim the law violates the Due Process Clause of the Fourteenth Amendment there’s a lot more to that story. Let’s start by looking at that clause:

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV, Section 1

So where in this law is anyone deprived of life, liberty, or property without due process of law? According to the plaintiffs:

The Availability Provision contains language purporting to describe criminalized acts which is vague and indefinite and subject to different meanings such that it fails to provide adequate notice to booksellers and librarians of violations of the Availability Provision, including the meaning of “presents,” “provides,” and “makes available” in Ark. Code Ann. § 5-27-212(b)(1).

Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. – Complaint

Are the terms “presents”, “provides”, and “makes available” vague? According to Merriam-Webster’s Online Dictionary:

present:

1 : to make a gift to
2 : to give or bestow formally
3 a: to bring (something, such as a play) before the public
3 b:
(1) : to bring or introduce into the presence of someone especially of superior rank or status
(2) : to introduce socially
4 a : to offer to view : SHOW
4 b: to bring to one’s attention

present – Merriam-Webster’s Dictionary Online

provide:

1 a : to supply or make available (something wanted or needed)
also : AFFORD curtains provide privacy
1 b : to make something available to

provide – Merriam-Webster’s Dictionary Online

available:

1 : present or ready for immediate use

available – Merriam-Webster’s Dictionary Online

So none of the terms the plaintiffs claim are “vague” actually are vague. Similarly, in count VI of the complaint, the plaintiffs argue that the terms “appropriateness” and “not accessible to a minor” as used in the law do not provide any definite procedural safeguards or standards. Yet Section 5 of the law specifically amends Arkansas Code for the “Establishment of guidelines for selection, removal relocation, and retention of materials.” These guidelines include having written policies for the process of challenging material, addressing those challenges, standards for what can be relocated or withdrawn, and communicating decisions to the parties involved.

Other than these claims that the law does not provide any guidelines or standards, which is patently false, I did not see where the plaintiffs provided a single situation where they would be deprived of life, liberty, or property without due process of law. Their claims of due process seem to be based solely on a violation of the First Amendment. A person challenging material in the library has access to a written policy for the establishing of guidelines and for how the library will address challenged material. The county librarian forms a committee of library personnel to review the challenge, and the person challenging the material to present his or her request to the committee. It seems to me that both sides have the opportunity to present their case, and I find it odd that the librarians who are suing to stop this law are the ones who vote to determine whether or not the material should be relocated.

First Amendment Violation?

With the single exception of the question of procedural safeguards and standards, the Fourteenth Amendment and its Due Process Clause is always referred to with a violation of the First Amendment. However, this law cannot violate the First Amendment for one simple reason: It was not created by Congress.

Congress shall make no law … abridging the freedom of speech, or of the press;

U.S. Constitution, Amendment I

Since Congress did not make this law, it cannot violate the First Amendment. I can assume that the attorney’s for the plaintiffs believe the lie promulgated by the Supreme Court that somehow the Fourteenth Amendment rewrote the First Amendment, but it did not. Which brings up an interesting question. If this law cannot violate the First Amendment, did the District Court have jurisdiction?

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

U.S. Constitution, Article III, Section 2, Clause 1

Although the plaintiffs claim a First Amendment violation, it patently is not. And since none of the plaintiffs articulated a reasonable claim under the Fourteenth Amendment, the claim the District Court made was wrong.

the Court found that at least one plaintiff had standing to challenge the constitutionality of Sections 1 and 5 of Act 372 and that such challenges were ripe.

Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. – Injunction

Recommendations for Arkansas

If the District Court does not have jurisdiction, then the injunction ordered by the court is invalid. And if the injunction is invalid, there’s no reason why Governor Huckabee-Sanders or the rest of the government of Arkansas should recognize and follow it. I know, it sounds radical, even anarchistic, but it is the law. The Supreme Court cannot rewrite the Constitution, so their claims that the Fourteenth Amendment rewrites the First is unconstitutional, invalid, and void. Furthermore, the rationale the judge used involved violations of free speech, attempting to apply the First Amendment to state law, which is unconstitutional.

First, it is overbroad because it regulates substantially more speech than the Constitution allows and therefore violates the First Amendment rights of Arkansans.

Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. – Injunction

As I’ve shown, this cannot violate the First Amendment rights of Arkansans since Congress did not make this, so this argument is invalid and void. Lastly, the “vagueness” argument is just plain foolish.

Second, its terms are so vague that they fail to provide librarians and booksellers with adequate notice of what conduct is prohibited, thus violating their due process rights.

Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. – Injunction

But the terms are not vague, and the prohibited conduct is quite obvious. From Arkansas Act 372:

(b) A person commits furnishing a harmful item to a minor if, knowing the character of the item involved, the person knowingly:

(1) Furnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors; or
(2) Transmits or sends to a person that he or she believes to be a minor by means of electronic mail, personal messaging, or any other direct internet communication an item that is harmful to minors when the person knows or believes at the time of the transmission that a minor in this state will receive the item.

Arkansas Act 372

Prohibited conduct is stated plainly in the law. If librarians and booksellers know that something has been found to be harmful to minors and knowingly makes it available to minors, then and only then is it “furnishing a harmful item to a minor”.

The Court observes that in a factually similar case, Virginia v. American Booksellers Ass’n, the Supreme Court held that booksellers in Virginia had standing to sue the Commonwealth to enjoin a law that would criminalize the commercial display of materials deemed “harmful to juveniles.”

Fayetteville Public Library et. al. v. Crawford County, Arkansas et. al. – Injunction

There is, however, a major difference between the Booksellers Association case and this one. The Bookseller Association represents private book sellers.

Conclusion

There is one area where I think the law can be improved. This law amends existing law to add “loans at a library” to this list of those liable for the possession, sale, or distribution of harmful material. Yet the law states that a person commits “furnishing a harmful item” if they knowingly does so. If it’s supposed to apply to libraries, why doesn’t the law specifically say so? Also, there is the question of “knowingly.” Say you work in a book store, library, or some other venue that provides material to minors. How is someone to know if a specific item has been found to be harmful to minors? Is it up to the owner to remove or segregate harmful material? Or if it’s up to the sales person, how are they to know?

More disturbing is the fact that a District Court judge either cannot read plain English or doesn’t care about their oath of office. Which brings me to the next question: If the court got the question of standing so badly wrong, is the State of Arkansas required to abide by the order? Sure, Arkansas can appeal the judges decision to the Circuit Court, and that might be the safer answer, but is it the most just answer? How many children will be exposed to harmful content because a judge cannot read or a group of unelected librarians think they have the right to distribute such content to them?

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 18, 2025

• Do American medical boards extort doctors to tow the party line?
• Did American medical boards collude with the federal government to keep medical information away from the American people?
• And people wonder why trust in these institutions has fallen?

There were plenty of infringement on people’s rights during the COVID scamdemic, and censorship was rampant. Not only did we have members of our own government colluding to censor information they didn’t like, but we’ve had professional associations joining in. Worst of all, the so-called medical professionals seemed to be at the forefront, violating the central tenant of the hippocratic oath, “First, do no harm.”

Background

People talk about how people are losing faith in our institutions, and it doesn’t help when those institutions violate our trust. In the case Association of American Physicians and Surgeons Educational Foundation, AAPS, vs American Board of Internal Medicine, ABIM; American Board of Obstetrics & Gynecology, ABOG; American Board of Family Medicine, ABFM; and Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security, the question is did these medical associations collude with the federal government to censor medical information critical of government’s positions?

The Association of American Physicians and Surgeons Educational Foundation (“AAPS”) alleges that the national medical specialty certifiers American Board of Internal Medicine (“ABIM”), American Board of Obstetrics & Gynecology (“ABOG”), American Board of Family Medicine (“ABFM”) (together, the “Board Defendants”) and Alejandro Mayorkas, as Secretary of the U.S. Department of Homeland Security (the “Department”), coordinated to censor and chill the speech of physicians, including some associated with AAPS, who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion. This was and continues to be done by labeling dissenting views as misinformation, disinformation, and malinformation, and the Board Defendants have expressly threatened to strip certification from otherwise qualified physicians who express such views. According to AAPS, Appellees’ efforts to censor and punish physicians on issues of public concern harmed and continue to harm AAPS.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

The accusation is that these medical boards attempted to censor medical information by falsely labeling it “misinformation,” “disinformation,” and “malinformation.” The whole idea of the scientific process is the search for truth. This works by questioning everything, then testing it to see if it is true. The act of labeling something wrong rather than providing evidence is the antithesis of science. The question in this case isn’t just did these organizations collude with each other, but did they collude with the government of the United States to censor information?

Claims of Collusion

Because of these claims of collusion, AAPS sued the board of defendants and Alejandro Mayorkas, Secretary of the Department of Homeland Security.

AAPS brought a host of claims against the Board Defendants and Department, including First Amendment and antitrust claims. The District Court dismissed all of AAPS’s claims with prejudice, reasoning that it lacked standing to assert its claims against the Board Defendants and that the Department mooted claims against it by dissolving the Disinformation Governance Board (“DGB”), which AAPS alleged was responsible for censorship. It also denied AAPS the ability to amend its complaint even once under Galveston Division Local Rule 6, with no analysis for doing so.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

The First Amendment claims can only have limited jurisdiction. As I’ve said I don’t know how many times, the First Amendment limits the laws Congress can pass.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, Amendment I

So if the Department of Homeland Security abridges someone’s freedom of speech, as an agency created by Congress, that would violate the First Amendment, but private organizations cannot. The District Court dismissed all of the claims with prejudice, meaning they could not appeal to the same court. The District Court claimed that the AAPS did not have standing to sue. The court also decided that the issue against the Department of Homeland Security was mooted when the Disinformation Governance Board was dissolved.

The Circuit Court Decisions

That may be what the District Court decided, but the Fifth Circuit Court of Appeals disagreed.

The District Court incorrectly dismissed AAPS’s First Amendment claims on standing grounds. AAPS provides sufficient allegations to support standing:

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

The Circuit Court says the District Court was wrong. Let the court list the ways:

(1) AAPS asserts an injury-in-fact through the Board Defendants’ infringement on its right to hear “willing speakers,” and it is premature to require AAPS to name specific “willing speakers” at the pleading stage;

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

AAPS claimed that the board’s decision threatened the licenses of people willing to speak at their events. Later in the decision we find:

So, AAPS contends, the Board Defendants’ threats to strip certification improperly chilled speech without the political accountability of official state medical boards. And, through this chilling of speech, the Board Defendants interfered with the market for medical conferences and posting of such conferences to the internet. Some examples of chilling by the Board Defendants includes ABOG sending letters to all certified physicians threatening to strip them of their invaluable certification for making statements concerning abortion and contraception, or for warning pregnant women that the Covid vaccine could have negative side effects. ABIM and ABFM sent similarly threatening letters on May 26, 2022, to certified physicians for making statements disagreeing with positions taken by Dr. Fauci and the Biden Administration in handling the Covid pandemic. Indeed, AAPS notes that one of its conference speakers had his certification stripped by ABFM pending appeal.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

AAPS provided examples of the Board Defendants threatening their certifications for expressing ideas, but could the AAPS link those threatening letters to the abridgment of speech?

(2) AAPS can trace its injuries back to the Board Defendants’ actions because physicians would likely “react predictably” when confronted with a threat of decertification: they would choose self-censorship over professional self- immolation; and

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

Hmmm, if these boards threaten the certifications, and by extension the careers, of doctors who express ideas not promoted by government actors, that would seem to be an “injury-in-fact.”

(3) AAPS’s injuries are redressable, as a ruling in its favor would allow for physicians to attend and speak at AAPS events (and thus allow AAPS to exercise its right to hear) without fear of decertification.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

Lastly, the injuries suffered by AAPS could be redressed. After all, without threats to their certifications, physicians would be more likely to speak at AAPS’s events.

Department of Homeland Security

What about the complaint against the Department of Homeland Security?

However, it was right to dismiss AAPS’s claims against the Department because its complaint as currently written lacks sufficient allegations to overcome the government’s good faith carveout to the mootness doctrine’s voluntary cessation exception. But it mistakenly dismissed this claim with prejudice, even though jurisdictional dismissals (such as those made on standing and mootness grounds) are typically done without prejudice. So we MODIFY this dismissal to be without prejudice and AFFIRM as modified.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

The Circuit Court claims that the AAPS’s claim against DHS couldn’t overcome what’s called government’s “good faith carveout” to the mootness exception. The “good faith carveout” or “good faith exception” means, if the government acted in good faith, courts tend to side with them. But when the government established the “Disinformation Governance Board,” were they acting in good faith? After all, it was a blatant violation of the First Amendment and was shut down after just four months.

Medical Monopolies

There is a more serious question that we should answer, and that is the power of private associations when they collude with government.

The Board Defendants have medical certification monopolies over their respective specialties. These certifications are primarily based on multiple-choice medical examinations. Board certifications constitute a de facto essential credential for physicians to practice and participate in most hospitals and insurance networks. Meaning that, while physicians are not required to have board certification to practice (state medical boards control licensure), lacking such certification significantly hamstrings their ability to do so. Stripping a physician of his certification is tantamount to revoking his license to practice medicine, given how few hospitals and networks permit uncertified, yet licensed, physicians to join. AAPS says that this monopoly status affords the Board Defendants an ability to exercise great power over physicians’ speech.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

Here I find myself with an interesting conundrum. On the one hand I see the importance of accrediting organizations. After all, who is better to determine the qualification for a doctor, the government or other doctors? While state medical boards may issue licenses, most hospitals and insurance networks require their physicians to have these certifications. However, when these organizations become politicized, they do great harm to the medical profession. What could be worse than a politicized certification board? A certification board colluding with government actors.

AAPS alleges that the Board Defendants colluded with the Biden Administration, imposing such censorship to promote the Administration’s political preferences in exchange for government endorsement of their certifications. The letters sent by the Board Defendants were, according to AAPS, sent nearly simultaneously and with similar terminology as “part of a broader campaign by the Biden Administration to advance its particular partisan agenda concerning Covid-19 and abortion.” AAPS contends that this collusion, resulting in attendant censorship and chilling of speech, infringed on its First Amendment protections and interfered with its ability to participate in the marketplace.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

AAPS claims that these Board Defenders were working with the Biden Administration to advance the government’s political agenda. This is very interesting, but before digging deeper, let’s see some of the evidence AAPS brought to the case.

Around the same time that the Board Defendants sent their letters, the Department created the (now defunct) DGB. The Department issued a press release in May 2022, directing the Homeland Security Advisory Counsel (“HSAC”) to “make recommendations for how the Department can most effectively and appropriately address disinformation that poses a threat to the homeland, while protecting free speech and other fundamental rights.”

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

AAPS points out that the Department of Homeland Security created the Disinformation Governance Board (DGB) around the same time that the Board Defendants sent their letters. Since the DGB was closed only a few months later, the District Court claimed the complaint against the DOJ was moot. But was the complaint against the DOJ or the DGB? And what would a First Amendment case be without a misrepresentation of what the Amendment actually says?

“The First Amendment protects the right to hear as well as to speak,” so that which “silences a willing speaker . . . also works a constitutional injury against the hearer.” Basiardanes v. City of Galveston, 682 F.2d 1203, 1211 (5th Cir. 1982) (citing Va. State Board of Pharmacy v. Va. Citizens Consumer Couns., Inc., 425 U.S. 748, 756 (1976)

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

Except the First Amendment does not protect a person’s right to hear, but a person’s right to speak, publish, and to peaceably assemble. If you had the right to hear, then you could not be prevented from attending a concert simply because you didn’t purchase a ticket. The venue would be denying your right to hear.

Dissent

Judge James C. Ho filed a dissent, but I don’t think that’s the proper term for it.

James C. Ho, Circuit Judge, dissenting in part:
Doctors deserve our tremendous respect. We trust them to provide us with the best available medical advice and treatment. But they’re not perfect. Doctors are “susceptible to peer pressure, careerism, ambition, and fear of cancel culture, just like the rest of us.” Whole Women’s Health v. Paxton, 10 F.4th 430, 468 (5th Cir. 2021)

At various times throughout history, medical care has suffered—and patients have been harmed, even killed—because doctors succumbed to social pressure and desire for approval and advancement. … We may “look back in disbelief at [doctors] who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection.” … But we would do well to learn from our past. Yes, we should absolutely follow the science. But that doesn’t mean we should always follow scientists. Because scientists don’t always follow the science.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

So far, a very good argument against medical censorship, but the dissent goes on.

In this case, a medical association contends that certain medical boards and federal officials have conspired—and continue to conspire—to censor and even destroy the careers of any physician who dares to express the “wrong” viewpoints on a wide range of medical topics, including but not limited to Dr. Anthony Fauci, COVID-19 lockdown policies, mask mandates, vaccines, and abortion.

These are alarming allegations. After all, these issues are far from scientifically settled as Defendants claim. They should remain the subject of open and rigorous discussion—not self-censorship and cancellation. …

I agree with the majority that the district court erred. I would simply go further, and accordingly dissent in part. I would remand this case for further proceedings on all of the association’s claims—including those against the government officials sued here, which the majority dismisses as moot.

AAPS v. ABIM, ABFM, and Alejandro Mayorkas

So this “dissent” sounds more like a concurrence, since the judge actually agrees with the majority opinion, with the exception that he would remand the case on all of AAPS’s claims, not just some.

Conclusion

This is the decision of the Fifth Circuit, and it may be appealed to the Supreme Court. From my point of view, there are things we can learn and questions we should ask about our medical institutions. As James Madison wrote for the National Gazette, March 27, 1792:

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

James Madison, National Gazette, March 27, 1792

That means that physicians have a property in the certifications they have earned. When those certifications, and by extension their ability to practice their profession, are threatened for any reason other than their medical actions, those doctors have been deprived of both their liberty and property without due process of law, which violates the Fifth Amendment.

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

When private organizations punish doctors for what they say, it is not a violation of the First Amendment, it is a violation of the due process clause. And if the AAPS is correct, and these medical associations colluded with the Department of Justice, then the DOJ has violated the First Amendment’s Free Speech and Free Press clauses.

This is the conundrum: Do we want government bureaucrats to regulate the qualification of doctors or do we want other doctors to do so? As Judge Ho said, doctors are just as susceptible to peer pressure and careerism as anyone. So where does that leave us? I think the best solution is to treat medical certifications as the property they were designed to be. If a doctor can pass the exam, they not only hold the certification, but it is their property. Like any other property, it should only be taken away when it is used unjustly. In other words, not because of what a physician says or writes, but for violations of the standards in the exams that led to the certification. I think both the association, and members of its various boards, should be held liable for the unjust abuses of their certification powers. After all, if you cannot sue the entities that has taken your property unjustly, how can you seek a redress of your grievance?

I also think, since the power to regulate medical care is not delegated to the United States, any department or agency thereof should be prohibited from influencing their standard by criminal statute. It is not enough to simply say a department or agency cannot influence board standards, but there must be punishment for those who do.

I cannot think of another way to constitutionally protect both the medical profession and the professionals that practice it. If we want to avoid future politicization of medical boards, then they must be held accountable for their actions. If the board can justify their actions to rescind someone’s certification based on their actions, they are fulfilling their role in protecting us from unqualified doctors. If they cannot defend their actions, they are not qualified to question the fitness of doctors to practice.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 14, 2025

• Should the history of Communism be taught in school?
• Is it within the powers of Congress to require the creation of such a curriculum?
• What is the impact of allowing Congress to dictate educational standards?

There are a lot of things I’d like to see done better in this country. On that list, education is right up near the top, but is it right to break the law to improve education? That’s the question I asked myself when I read the text of H.R. 5349, The “Crucial Communism Teaching Act.’’ You see, while teaching the truth about communism’s history is important, should this bill pass Congress and be signed, it cannot be the supreme law of the land because it was not made pursuant to the Constitution of the United States.

Let’s back up a little bit. On December 6th, 2024, the House passed H.R. 5349 327-62. As of this writing, it has been received by the Senate and referred to the Committee on Health, Education, Labor, and Pensions.

Purpose of the Bill

Let’s start by looking at the purpose of this legislation.

SEC. 2. PURPOSES.

The purposes of this Act are the following:

(1) To help families, civic institutions, local communities, local educational agencies, high schools, and State educational agencies to prepare high school students to be civically responsible and knowledgeable adults.

H.R. 5349 – 118th Congress

First, let’s notice that the entities Congress wants to help are primarily local. Yes, the list includes state education agencies, but families and civic institutions, along with high schools, are local entities. Why this is important will become evident a little later.

The goal of preparing our young people to be civilly responsible and knowledgeable adults is laudable. However, that does not justify this legislation. Neither does the Constitution vest in Congress the power to determine what needs to be taught in our high schools, as this legislation claims to do.

(2) To ensure that high school students in the United States—

(A) learn that communism has led to the deaths of over 100,000,000 victims worldwide;

(B) understand the dangers of communism and similar political ideologies; and

(C) understand that 1,500,000,000 people still suffer under communism.

H.R. 5349 – 118th Congress

Learning the truth about history is very important. As Santayana said:

“Those who cannot remember the past are condemned to repeat it.”

Santayana

That does not mean the federal government is the right entity to teach history. Since the Constitution does not vest in the United States the power to regulate education, Congress doesn’t have the legal authority to make such a law.

Necessary and Proper

Per the law, Congress must include a “Constitutional Authority Statement” in all legislation. In other words, before a member of Congress, either House or Senate, introduces legislation, they must show that Congress actually has the authority to make such law. In the Constitutional Authority Statement for H.R. 5349, Representative Salazar wrote:

By Ms. SALAZAR:
H.R. 5349.
Congress has the power to enact this legislation pursuant to the following:
Article I Section 8 Clause 18

H.R. 5349 – 118th Congress – Constitutional Authority Statement

Does Article I, Section 8, Clause 18 vest in Congress the power to regulate education? The Constitution vests several powers in the Congress of the United States. Many of those powers are listed in Article I, Section 8. The last of the powers delegated to Congress in Article I, Section 8 comes in clause 18, the Necessary and Proper Clause, which states that Congress has the power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S. Constitution, Article I, Section 8, Clause 18

So for Congress to be able to make a law, it must be both necessary and proper for putting into execution a power vested by the Constitution in the government of the United States or one of its departments or officers. However, regulating education is not a power vested in any part of the government of the United States. It is therefore neither necessary nor proper for Congress to make a law to regulate education. In other words, not only is Ms. Salazar’s Constitutional Authority Statement foolish, it also shows the ignorance of the Constitution not only of Ms. Salazar, but of the 33 other members of the House of Representatives who co-sponsored the legislation.

Allegedly Required Education

Since this legislation is unconstitutional, to claim it has the power to create curricula is a lie. Rather this legislation, should it be passed and signed, would allege the federal government take the following actions in violation of the law and the oath of office for every member of any government official who implemented it.

SEC. 3. DEVELOPMENT AND DISSEMINATION OF CIVIC EDUCATION CURRICULUM AND ORAL HISTORY RESOURCES.
The independent entity created under section 905(b)(1)(B) of the FRIENDSHIP Act (40 U.S.C. 8903 note; 107 Stat. 2331 note), also known as the ‘‘Victims of Communism Memorial Foundation’’, shall—

H.R. 5349 – 118th Congress

This line confused me a bit. You see, 40 USC §8903 is entitled “Congressional authorization of commemorative works.” That’s right, Congress wants to ask an organization created for the purpose of creating monuments and other commemorative works to tell schools how to teach. Specifically, Congress wants your children taught about Communism by a group who’s sole purpose is:

(b) AUTHORIZATION OF MEMORIAL.—

(1) AUTHORIZATION.—

(A) The National Captive Nations Committee, Inc., is authorized to construct, maintain, and operate in the District of Columbia an appropriate international memorial to honor victims of commimism.

(B) The National Captive Nations Committee, Inc., is encouraged to create an independent entity for the purposes of constructing, maintaining, and operating the memorial.

(C) Once created, this entity is encouraged and authorized, to the maximum extent practicable, to include as active participants organizations representing all groups that have suffered under commimism.

107 Stat §905(b)

First of all, this National Captive Nations Committee, Inc. (apparently a federal corporation), is only authorized to construct, maintain, and operate a memorial within the District of Columbia. What logical reason does Ms. Salazar and Congress have to believe them capable of developing a civic education curriculum, as stated in the law:

(1) develop a civic education curriculum for high school students that—

(A) includes a comparative discussion of certain political ideologies, including communism and totalitarianism, that conflict with the principles of freedom and democracy that are essential to the founding of the United States;

(B) is accurate, relevant, and accessible, so as to promote the understanding of such political ideologies; and

(C) is compatible with a variety of courses, including social studies, government, history, and economics classes;

H.R. 5349 – 118th Congress

I’ve developed curriculum; it is not an easy task. Even with my extensive knowledge of the topics at hand, turning that into something pedagogically (the art, science, or profession of teaching) was quite difficult. Are we to expect a group of people trained in building and operating monuments are up to the task? Where is the vetting of the facts and data that would be included in such curriculum? Where is the peer review? Where is anything resembling the art, science, or profession of teaching in this legislation?

(2) develop oral history resources that may be used alongside the curriculum described in paragraph (1) and that include personal stories, titled ‘‘Portraits in Patriotism’’, from diverse individuals who—

(A) demonstrate civic-minded qualities;

(B) are victims of the political ideologies described in paragraph (1)(A); and

(C) are able to compare the political ideologies described in paragraph (1)(A) with the political ideology of the United States; and

H.R. 5349 – 118th Congress

Again, “developing an oral history resource” is not a simple task. While such oral history is quite a powerful educational tool, it is a difficult task, since said history must also be vetted if it is to be a real educational value.

(3) engage with State and local educational leaders to assist high schools in using the curriculum described in paragraph (1) and the resources described in paragraph (2).

H.R. 5349 – 118th Congress

Now, after all the work is done, Congress wants this group of monument builders to help high schools to use their curriculum? I wonder, will any U.S. Dept. of Education dollars be used to entice and influence these schools to adopt this questionable curriculum?

Conclusion

Yes, I believe not only that education is important, but learning about history should be part of that education. I think that, when confronted by the evils committed by current and past communist regimes, most people would be horrified and avoid adopting such political ideas. However, is it within the powers of the United States to make that determination? No. Has the government of the United States been vested with the power to regulate or fund education? No. Would this legislation, should it be passed and signed by a President, be valid? Absolutely not! As the Supreme Court pointed out in the case Norton v. Shelby County:

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County :: 118 U.S. 425 (1886)

Since Congress seems to value a civic education so much, perhaps it should start with its own? After all, the Constitutional Authority Statement for this legislation shows an absolute ignorance of the Necessary and Proper Clause of the United States Constitution. Perhaps people in glass houses shouldn’t throw stones. After all, if the members of Congress, who not only write our legislation but took an oath or affirmation to support the Constitution of the United States, are so ignorant of not just the document as a whole, but the language vesting them with power, how can we take any civic education they create seriously?

Let’s not forget that the National Captive Nations Committee, Inc., that Congress wants to develop this questionable curriculum, will have costs that need to be paid. Can we expect Congress to embezzle more money from the American people to pay those expenses?

Again, I whole heartedly support the inclusion of civics in our educational systems. I simply wish Congress would educate itself about its legal powers beforehand. How can members of Congress claim to pull the spec out of the eye of our education system while a gigantic beam is wedged in theirs?

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 10, 2025

• Is so-called “gender affirming care” safe for minors?
• Do the states have a duty to protect minors from such care, even if the parents and doctors approve?
• Do transgender prohibitions violate the Equal Protection Clause?

The transgender agenda has been moving fast the last few years. That said, several states have moved to slow their progress, especially among our young people. One state, Tennessee, is being sued by the federal government. Oral arguments were heard by the Supreme Court in November. While the question posed to the court regarded a restraining order preventing the state from enforcing the law, a lot of time was spent on the primary question of the lawsuit: Does the Tennessee law violate the Equal Protection Clause of the Fourteenth Amendment?

Background

Before we get into the oral arguments, let’s start with a little background. In March 2023, the Tennessee Legislature passed, and the governor signed, a bill known as SB 1. In this bill we find:

A healthcare provider shall not perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of:

(1) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or

(2) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.

TN SB0001

As you would expect, this law was challenged in court. Three “transgender” teens and their families sued, and the Biden administration Department of Justice sought an injunction to prevent the law from going into effect. The U.S. District Court for the Middle District of Tennessee granted the injunction, but the Sixth Circuit Court of Appeals stayed it. This led the Biden Department of Justice to appeal the Sixth Circuit’s decision to the Supreme Court, which heard oral arguments December 4, 2024.

United States Argument

As the petitioner, Solicitor General Elizabeth Prelogar opened with the arguments for the United States.

GENERAL PRELOGAR: Mr. Chief Justice, and may it please the Court:

This case is about access to medications that have been safely prescribed for decades to treat many conditions, including gender dysphoria. But SB1 singles out and bans one particular use. In Tennessee, these medications can’t be prescribed to allow a minor to identify with or live as a gender inconsistent with the minor’s sex.

It doesn’t matter what parents decide is best for their children. It doesn’t matter what patients would choose for themselves. And it doesn’t matter if doctors believe this treatment is essential for individual patients. SB1 categorically bans treatment when and only when it’s inconsistent with the patient’s birth sex.

United States v. Skrmetti – Oral Arguments

Let’s start with two truths and a lie. The first truth is that this law does prohibit the use of certain treatments for minors for the purpose of changing their body to appear different than their sex. The second truth is that the law claims to overrule the decision of the minor, parent, and doctors. The lie is one we’re going to see a lot in these arguments: The concept of “birth sex.” More on that later.

Tennessee says that sweeping ban is justified to protect adolescent health. But the State mainly argues that it had no obligation to justify the law and that SB1 should be upheld so long as it’s not wholly irrational.

United States v. Skrmetti – Oral Arguments

There are many laws that place the state’s view of what is best for a child above the decisions of their parents and others. The state also regulates the uses of drugs and treatments. This can be a tricky situation, having the state overrule the decisions of a parent. If the state can remove a child from their parents for the child’s safety though, why not prevent treatments that both the state, and much of society, find harmful to the child? In other words, is it irrational to protect children from drugs and other procedures that have long-term negative consequences?

That’s wrong. SB1 regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can.

United States v. Skrmetti – Oral Arguments

Here’s another lie, the idea of sex being assigned by someone. It’s not like a baby is born and the doctor decides for themselves what sex to “assign” them. A person’s sex isn’t even determined at birth, but at conception. When the sperm meets the egg, the sex is determined. It does not happen at birth, and it is not assigned.

If you change the individual’s sex, it changes the result. That’s a facial sex classification, full stop, and a law like that can’t stand on bare rationality. To be clear, states have leeway to regulate gender-affirming care, but, here, Tennessee made no attempt to tailor its law to its stated health concerns.

United States v. Skrmetti – Oral Arguments

We will find that the plaintiffs and several of the justices will focus on sex, as if drugs cannot have drastically different effects when given to people of different sexes. It appears they believe there is no real difference between male and female. Again, more about that later.

Rather than impose measured guardrails, SB1 bans the care outright no matter how critical it is for an individual patient, and that approach is a stark departure from the State’s regulation of pediatric care in all other contexts. SB1 leaves the same medications and many others entirely unrestricted when used for any other purpose, even when those uses present similar risks.

The Sixth Circuit never considered whether Tennessee could justify that sex-based line. Because the Equal Protection Clause requires more, this Court should remand so that SB1 can be reviewed under the correct standard.

I welcome the Court’s questions.

United States v. Skrmetti – Oral Arguments

Part of the petitioners argument focuses on who specific drugs can be used on. This is a case of missing the forest for the trees, as we’ll see later.

After giving her opening argument, General Prelogar answered questions from the justices, the first of which came from Justice Alito.

JUSTICE ALITO: General, can I ask you a question about the state of medical evidence at the present time?

In your petition, you made a sweeping statement, which I will quote: “Overwhelming evidence establishes that the appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical, psychological well-being of transgender adolescents with gender dysphoria.” That was in November 2023.

Now, even before then, the Swedish National Board of Health and Welfare wrote the following: They currently assess “that the risks of puberty blockers and gender-affirming treatment are likely to outweigh the expected benefits of these treatments,” which is directly contrary to the sweeping statement in your petition.

United States v. Skrmetti – Oral Arguments

General Prelogar claims that there is overwhelming evidence that so-called “gender-affirming” treatment improves both the physical and psychological well-being of the patient. (I say “so-called gender-affirming care” since the care actually denies a person’s gender in favor of their mental confusion.) However, the Swedish National Board of Health and Welfare reports that the risk of such care is likely to outweigh its benefits.

After the filing of your petition, of course, we saw the — the release of the Cass report in the United Kingdom, which found a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks.

United States v. Skrmetti – Oral Arguments

A one-two punch from Justice Alito. First the Swedes and now the UK, point out the fact the evidence that these treatments are beneficial are of questionable quality. I guess it’s a question of who should you believe: An attorney or a nation’s board of health?

And so I wonder if you would like to stand by the statement that you made in your petition or if you think it would now be appropriate to modify that and withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that greatly outweigh the risks and the dangers.

GENERAL PRELOGAR: I, of course, acknowledge, Justice Alito, that there is a lot of debate happening here and abroad about the proper model of delivery of this care and exactly when adolescents should receive it and how to identify the adolescents for whom it would be helpful.

But I stand by that there is a consensus that these treatments can be medically necessary for some adolescents, and that’s true no matter what source you look at.

United States v. Skrmetti – Oral Arguments

Yes, there’s a lot of debate about the effectiveness of these treatments, but let’s not worry about that. Could these treatments be medically necessary? Yes, and the law states:

(1) It is not a violation of subsection (a) if a healthcare provider performs, or offers to perform, a medical procedure on or administers, or offers to administer, a medical procedure to a minor if:

(A) The performance or administration of the medical procedure is to treat a minor’s congenital defect, disease, or physical injury;

Senate Bill 1

Which brings up another question: Is a drug or surgical treatment medically necessary for a psychological condition? This is where Justice Sotomayor started asking questions.

JUSTICE SOTOMAYOR: Some — some children suffer incredibly with gender dysphoria, don’t they?

GENERAL PRELOGAR: Yes. It’s a very serious medical condition.

JUSTICE SOTOMAYOR: I think some attempt suicide?

GENERAL PRELOGAR: Yes. The rates of suicide are — are striking —

JUSTICE SOTOMAYOR: Some —

GENERAL PRELOGAR: — and it’s a vulnerable population.

JUSTICE SOTOMAYOR: Drug addiction is very high among some of these children because of their distress, correct?

GENERAL PRELOGAR: It is a serious condition, yes.

JUSTICE SOTOMAYOR: One of the Petitioners in this case described throwing up every day, going almost mute because of his — because of their inability to speak in a voice that they could live with.

These are physically challenging situations as well too, correct?

GENERAL PRELOGAR: Yes, that’s correct.

United States v. Skrmetti – Oral Arguments

Do young people suffer from gender dysphoria? Yes? In fact most of us suffered through puberty. Some adolescents even consider suicide. Again, the question remains: Is the proper treatment for a mental disorder drugs and surgery?

In response to one of the questions, General Prelogar pointed out that one of the states that restricted access to such treatments used a more targeted approach.

West Virginia was thinking about a total ban, like this one, on care for minors, but then the Senate majority leader in West Virginia, who’s a doctor, looked at the underlying studies that demonstrate sharply reduced associations with suicidal ideation and suicide attempts, and the West Virginia legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care.

West Virginia requires that two different doctors diagnose the gender dysphoria and find that it’s severe and that the treatment is medically necessary to guard against the risk of self-harm.

The West Virginia law also requires mental health screening to try to rule out confounding diagnoses. It requires the parents to agree and the primary care physician to agree.

And I think a law like that is going to fare much better under heightened scrutiny precisely because it would be tailored to the precise interests and not serve a more sweeping interest like the one asserted here in having minors appreciate their sex.

United States v. Skrmetti – Oral Arguments

West Virginia chose a different path. They require two doctors to diagnose the gender dysphoria, and mental health screenings. That was how West Virginia’s elected legislators decided to deal with the issue, but should Tennesseans be forced to follow the same path? There’s still the question of the medical necessity of drug and surgical treatments for mental disorders. Especially when those treatments lead to infertility.

I do want to acknowledge that there is evidence to suggest that gender-affirming care with respect to hormones can have some impacts on fertility. Critically, puberty blockers are — are — have no effect in and of themselves on fertility, so I don’t think that concern can justify the ban on puberty blockers, which is just pressing pause on someone’s endogenous puberty to give them more time to understand their identity.

United States v. Skrmetti – Oral Arguments

Are using puberty blockers simply “pressing pause” on a person’s puberty? If that were true, then why would these drugs be used to chemically castrate sex offenders? From my research puberty blockers are used in women to treat endometriosis, but only for six months. A second six month treatment can be used, but only when supplemented with the female hormones estrogen and progesterone. While puberty blockers may “pause” puberty, what happens when a person’s body passes the age where puberty can happen? If their body hasn’t developed the ability to be fertile, then they are infertile.

With respect to hormone use, there are some effects on fertility, but the court found that many individuals who are transgender remain fertile after taking these medications. They can conceive biological children. There are fertility preservation measures that they can undertake and that they have to be counseled on those risks.

United States v. Skrmetti – Oral Arguments

Since the purpose of these cross-sex hormones is to prevent the development of the very things that make us male or female, I find it difficult to see how they cannot adversely affect fertility. Is it a question of the people remaining fertile, or being made fertile with the use of more hormones?

Petitioner’s Argument

Next up was Chase Strangio representing the respondents to the case. While there aren’t many differences between Ms. Strangio’s arguments, her main claim to fame is being the first declared “transgender” attorney to argue before the Supreme Court.

That’s right, Ms. Strangio presents as a man. Some people may be offended by that statement but my purpose is not to offend, and I will use a person’s preferred name. While the court may be willing to do so, I will not lie to you and claim this woman is a man. Since, in the English language, the proper title for a woman of unknown marital status is “Ms.”, that is how I will refer to her.

1. STRANGIO: Mr. Chief Justice, and may it please the Court:

On its face, SB1 bans medical care only when it is inconsistent with a person’s birth sex. An adolescent can receive medical treatment to live and identify as a boy if his birth sex is male but not female. And an adolescent can receive medical treatment to live and identify as a girl if her birth sex is female but not male.

Tennessee claims the sex-based line-drawing is justified to protect children. But SB1 has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs. And, critically, Tennessee’s arguments that SB1 is sex-neutral would apply if the State banned this care for adults too.

By banning treatment only when it allows an adolescent to live, identify, or appear inconsistent with their birth sex, SB1 warrants heightened scrutiny under decades of precedent. Because the Sixth Circuit failed to apply that standard, this Court should vacate and remand.

I welcome the Court’s questions.

United States v. Skrmetti – Oral Arguments

Again we see the lie of “birth sex,” the focus on individual drugs rather than what they are claiming to treat, and the lack of concern for whether or not these drugs are the proper treatment for a mental disorder. One concern that Justice Alito did explore with Ms. Strangio is that of suicide.

JUSTICE ALITO: A lot of categorical statements have been made this morning in argument and in the briefs about medical questions that seem to me to be hotly disputed, and that’s a bit distressing. One of them has to do with the risk of suicide.

Do you maintain that the procedures and medications in question reduce the risk of suicide?

1. STRANGIO: I do, Justice Alito, maintain that the medications in question reduce the risk of depression, anxiety, and suicidality, which are all indicators of potential suicide.

JUSTICE ALITO: Do you think that’s clearly established? Do you think there’s reason for disagreement about that?

1. STRANGIO: I do — I do think it is clearly established in the science and in — in the record. I think, as with all underlying questions of looking at evidence, there can be disagreement. I don’t dispute that.

But, here, and — and sort of going back to questions about the Cass review, for example, the Cass review only looked at studies up until 2022. After —

JUSTICE ALITO: Well, I — I don’t regard the Cass review as — necessarily as — as the Bible or as something that’s, you know, true in every respect, but, on page 195 of the Cass report, it says: There is no evidence that gender-affirmative treatments reduce suicide.

1. STRANGIO: What I think that is referring to is there is no evidence in some — in the studies that this treatment reduces completed suicide. And the reason for that is completed suicide, thankfully and admittedly, is rare and we’re talking about a very small population of individuals with studies that don’t necessarily have completed suicides within them.

However, there are multiple studies, long-term, longitudinal studies that do show that there is a reduction in — in suicidality, which I — I — I think is a — is a positive outcome to this treatment.

United States v. Skrmetti – Oral Arguments

I do have a few concerns about Ms. Strangio’s position here. One is the question of suicide vs. suicidality, or the thoughts about suicide. Suicidality is an emotional problem, and therefore harder to quantify. Add to that the heightened levels of suicidality that come with puberty and it’s hard to differentiate whether the cause is puberty or gender dysphoria. I also wonder about the timeframe for the longitudinal studies she basis her position on. If someone is gender confused, and expects a treatment to reduce their thoughts about suicide, there could be a placebo effect that I would expect to be short-term. Did these studies follow their patients for the years, or even the decades, that would show a long-term solution? Compare that with the Cass report that looked at actual suicides, something that can be better measured, and I would think have a greater impact than a person’s feelings, which can be managed without making life altering decisions about one’s body.

Tennessee’s Argument

Finally we get to Tennessee’s argument, presented by J. Matthew Rice, Solicitor General of Tennessee, on behalf of Jonathan Skrmetti, the Attorney General.

1. RICE: Mr. Chief Justice, and may it please the Court:

Tennessee lawmakers enacted SB1 to protect minors from risky, unproven medical interventions. The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others. Its application turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination.

The challengers try to make the law seem sex-based this morning by using terms like “masculinizing” and “feminizing.” But their arguments conflate fundamentally different treatments. Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one’s body.

The Equal Protection Clause does not require the states to blind themselves to medical reality or to treat unlike things the same, and it does not constitutionalize one side’s view of a disputed medical question. Half of the states, Sweden, Finland, and the U.K. all now restrict the use of these interventions in minors and recognize the uncertainty surrounding their use. These interventions carry often irreversible and life-altering consequences. And the systematic reviews conducted by European health authorities have found no established benefits.

Politically accountable lawmakers, not judges, are in the best position to assess this evolving medical issue. The Sixth Circuit should be affirmed.

I welcome the Court’s questions.

United States v. Skrmetti – Oral Arguments

Does SB1 discriminate based on sex or medical purpose? Wading through all of these arguments, that seems to be the core question. Plaintiffs say yes, respondents say no. This led to a rather contentious debate between Mr. Rice and Justices Sotomayor, Jackson, and Kagan. I think Mr. Rice made an excellent point when he said:

But, in this case, the only way that they can point to a sex-based line is to equate fundamentally different medical treatments. Giving — giving testosterone to boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body. These are — this is — this is not only different —

JUSTICE JACKSON: And what’s your basis for saying that? I’m sorry. Is it just because of why they’re asking for it, or is there some kind of medical — I — I took the SG to be saying that it operates on the body in the same way. So what — what’s your basis for saying they’re not the same?

1. RICE: I — I don’t think it operates on — on the body in the same way. Take testosterone. If you give a boy with a deficiency testosterone because he has constitutional delay of puberty, that allows him to go through the — the — and develop the reproductive organs associated with being a male. If you give it to a girl, it renders the girl infertile. So we have 8- to 12-year-olds being asked —

JUSTICE JACKSON: Oh, I’m sorry. I thought your reasons for them being different was that you said they were for different purposes. I had heard —

1. RICE: Well —

JUSTICE JACKSON: — you say at the beginning the reason those two are different is because one wants them to transition and the other wants them for some medical purpose other than that.

1. RICE: Well, to go back to my — my example in the — in the introduction, I don’t think anyone would say using morphine to assist suicide is the same treatment as using morphine to manage pain. It’s the same drug, just like it’s the same drug here. But they’re being used for fundamentally different purposes. They have different effects on the body.

And once you take out and you recognize medical reality, then there is no argument that our law differentiates between treatments for males and females.

United States v. Skrmetti – Oral Arguments

United States Rebuttal

As the lead petitioner, Solicitor General Prelogar was allowed to rebut what had been argued before the court.

but I think it’s important to recognize that my friend’s arguments would equally apply to a nationwide ban if this were enacted by Congress. And so I think that the Court should keep that in mind when thinking about the level of scrutiny here.

United States v. Skrmetti – Oral Arguments

The problem with this argument is that Congress is not constitutionally authorized to regulate medical treatment. That hasn’t stopped them in the past, but it should at least be pointed out here. And really, is the question any different for a state law vs a federal one? In my opinion, this argument is a misdirection.

Finally, I think the Court should think about the real-world consequences of laws like SB1. Consider its effects on Ryan Roe. As Justice Sotomayor noted, Ryan’s gender dysphoria was so severe that he was throwing up before school every day. He thought about going mute because his voice caused him so much distress. And Ryan has told the courts that getting these medications after a careful consultation process with his doctors and his parents has saved his life. His parents say he’s now thriving. But Tennessee has come in and categorically cut off And the State says it doesn’t even want the courts to take a look at whether this protects adolescent health. But the reason Ryan can’t have these medications is because of his birth sex, and a sex-based line like that can’t stand on rational basis review.

United States v. Skrmetti – Oral Arguments

Again, the role of the court is not to consider the consequences of law; that’s the role of the legislative branch. The court is there to apply the laws to the controversy before them. Justice Sotomayor similarly used a young woman who wants to live as a boy to make an emotional argument rather than a legal one. What the justice described, and the Solicitor General repeated here, are the effects of a mental disorder. Her nausea and psychosomatic muteness were not caused by a medical condition or a problem with her body, but a problem with her mind. Yet before she reaches the age of consent, her parents and her doctor wants to put her on drugs, the long-term use of which can cause serious medical harms. And that is just for the puberty blockers. If Ms. Roe truly wishes to modify her body to look like a boy, she will also have to take testosterone, which in women causes hyperandrogegism, atrophy of the lining of the uterus, blood cell disorders, and an increased risk of a heart attack.

Conclusion

There was a lot more in the oral arguments I could have written about, but I think this article is long enough, and I did cover what I think are the most important points. The claims of both the United States and the petitioners is that, since Tennessee prohibits them from receiving the same drugs as a person of the opposite sex, the law is sex discrimination and requires heightened scrutiny to pass the court’s review. However, they ignore the fact that the prohibitions in the law do not restrict drugs from someone because of their sex, but because of the effect they would have on their body.

Several court watches I follow believe that the majority of the court seemed favorable to Tennessee’s position. As usual, we’ll have to wait until the court releases its decision, probably in June. Regardless of how the court finds, I think it was a worthwhile exercise to review the arguments from both sides. This allows us to see which side seems more anchored in the facts and law and which side seems more interested in emotions.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 31, 2024

• New Year’s Eve is often a time for drinking, followed by a hangover.
• It’s also a time for making resolutions.
• What can we learn from 2024 and what can we do better in 2025.

For many, New Year’s Eve is a time for drinking and partying, which frequently makes New Year’s Day a time for dealing with a hangover. For others, New Years is a time for making resolutions or promises to ourselves to be better. I rarely drink, so hangovers are not a problem for me. I also do not make New Year’s resolutions, not because I don’t think there are ways I can be better, but because I don’t wait until the New Year to act on them. That said, a new year is a good time to look at where we are and make plans for the future.

New Year

However you celebrate the holiday, I wish you a safe and enjoyable time. I also hope you’ll take some time to consider the year that is past and make plans for the year to come. After all, 2024 has been quite a year.

2024 in Review

Let’s start with some highlights from 2024

Election

Remember back in January when a handful of states attempted to keep Donald Trump off the ballot, claiming that he had participated in an insurrection simply because they called the January 6th demonstration an insurrection? They seemed to ignore then President Trump’s admonition to the crowd to “peacefully and patriotically demonstrate” their displeasure with how the election was conducted.

Maine showed their general ignorance of the Constitution, and their willingness to throw away the republic as they attempted to join the “Interstate Compact to Elect the President of the United States by National Popular Vote.”

The Supreme Court

As usual, the Supreme Court handled several cases worth remembering. One of the most memorable was Trump v. United States when Donald Trump claimed Presidential Immunity in an attempt to counter the questionable legal charges against him. In this case the Supreme Court noted that there is not “Presidential Immunity” clause in the Constitution, then claimed that the President did have some limited immunity. If that confuses you, that’s probably a good thing.

There were several cases that restricted the overreach of federal agencies. In Louisiana, et. al. v. U.S. Department of Energy, the court found that the Dept. of Energy did not have the statutory authority to regulate water usage in whatever way they wanted. Then there was the case USDA v. Kirtz were the question of sovereign immunity was brought before the court. This was followed by Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al. where the court “overturned” a forty year precedent known as the “Chevron Doctrine” that illegally granted deference to executive agencies in direct opposition to federal law. And let’s not forget Securities And Exchange Commission v. Jarkesy et al., where the court said the SEC could not use their “Administrative Courts” to deprive people of their right to a trial by jury.

Congress

Not only did Congress continue to spend trillions of dollars they did not have, but some of their other acts are worth remembering. We had the CHIPs Act, which spent billions of dollars to help redirect chip manufacturers to build new plants while shutting down others.

Then there was the TikTok ban. Did Congress have the authority to tell private companies what apps they can provide on their equipment? Was there a better way to deal with people’s concern about the Communist Chinese control of that platform? Then there was H.Amdt.876 — 118th Congress (2023-2024), a proposed amendment to the infamous §702 of the Foreign Intelligence Surveillance Act (FISA). Some claimed that this amendment to enforce the Constitution’s protections against unreasonable searches is itself unconstitutional, a position apparently held by President Biden.

And let’s not forget the political “investigations” held in both houses.

President

Then there was Joe Biden’s “pardon” of Hunter Biden. I put “pardon” in quotes because, while part of the document is a pardon of Mr. Biden’s son for crimes he was guilty of, there was some controversy over the expansion into what should be called a grant of immunity for crimes he may have committed.

Don’t let that distract you from the hundreds of billions sent to Ukraine to help them fight their war against Russia and pushing the transgender agenda on our schools,

Looking Forward to 2025

While none of us can know the future, contemplating the future is a fun way to pass time.

President Trump

Shortly after the New Year, Donald Trump will become only the second person to hold two non-consecutive terms as President. Even considering how few people have held the office, that is still quite a distinction. Mr. Trump has made many promises to the American people about what he will do with this opportunity, and based on his proposed appointments, he may even keep some of them.

Court Cases

There are several cases that have been heard and will be decided this year. The Supreme Court’s term finishes at the end of June, and that’s when they tend to release their opinions on the most controversial cases.

San Francisco v. EPA looks at the limits of the agency’s power to interpret the law. Garland v. Van Der Stock looks at the powers of the ATF to reclassify personally manufactured firearms. And United States v. Skrmetti is a challenge to Tennessee’s law prohibiting transgender treatments for minors.

States

Some states, most notably California, have been putting policies in place to prevent the Trump administration from enforcing federal immigration laws, protect abortions, and generally get in the way.

Resolution Ideas

As I said, I don’t make New Year’s resolutions, but I know many who do. So here are some ideas you may want to consider adding to your list.

Study the Constitution

Since this is The Constitution Study, resolving to study the supreme law of the land should be expected. Whether you read the document online, read a book, take a class, or follow other content on the Internet, knowing the supreme law of the land has plenty of benefits.

Hold an Elected Official Responsible

I’m sure, at some point in the year ahead, one of your elected representatives will screw something up. They will vote for some unconstitutional legislation, promote some unconstitutional policy, or do something in violation of their oath of office. Call them up on it. Write a letter, or better yet, visit their office and point out their mistake and the fact that you will remember it. If your elected official is a good one, they will learn from the experience. If not, then it’s time to start looking for someone better. But pledge to yourself that when you see an unconstitutional act, regardless of what government they are in, you’ll stand up to point out the mistake to your employee.

Defend Your Rights

Odds are that someone will enact or enforce some policy that will violate your rights. Don’t take it sitting down. Do your research, put together a sound argument, and then stand up and defend your rights. Maybe even get some of your neighbors to join you. I’ve had people reach out for help putting together their case or legislation. Join the list of those standing up to defend and assert their rights.

Conclusion

As we prepare to celebrate another orbit around the sun and look forward to a new year, let’s remember the lessons of our past year and use them to make next year better. Let’s not make the perfect the enemy of the good. By which I mean, don’t be put off by the fact you cannot fix everything, just fix something. And should we meet again at the beginning of another orbit, we can tell the tales of what we learned in 2025 and what we’re preparing to do in 2026.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 27, 2024

• Do you know that there are more than one Christmas holiday in this country?
• In fact, when the United States was formed, we didn’t even have holidays.
• When we celebrate Christmas this year, let’s not forget the reason for the season.

There are many things most Americans will take for granted this Christmas Holiday. For example, even that fact that it is a holiday is something most of us don’t even think about. So let us take a look at this federal holiday in America.

Holidays

Since we will be discussing federal holidays, we should define what a holiday is.

Holiday:

1. HOLY DAY
2. a day on which one is exempt from work

Holiday – Merriam Webster’s Online Dictionary

Interestingly, the first sense of the word “holiday” is that of a “holy day”.

a day set aside for special religious observance

Holy Day – Merriam Webster’s Online Dictionary

In this day and age, the more common usage of the term ‘holiday’ is to identify days when most of us are exempt from work.

Federal Holidays

There’s an important point I need to mention: We will be focusing on the federal holiday of Christmas, not the state holiday. We tend to think of holidays as “national” holidays, but since Congress doesn’t have the legal authority to create national holidays, they have so far avoided attempting to do so.

While Christmas has had an interesting history in the colonies and early United States, it does not become a holiday until 1870 with the passage of H.R. 2244.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following days to wit: The first day of January, commonly called New Year’s Day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the President of the United States as a day of public fast or thanksgiving shall be holidays within the District of Columbia,

H.R. 2244, 41st Congress

Congress passed a law identifying several holidays, but unlike today, the first purposes of these holidays are fasting and thanksgiving, not a day off. We should also notice that these holidays are only within the District of Columbia. This is in large part because Congress doesn’t have the legal authority to define holidays for the country. It does however have the power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States

U.S. Constitution Article I, Section 8, Clause 17

Since Congress is authorized to create general laws only for the district that became the seat of the government of the United States, they can write general laws for the District of Columbia.

and shall for all purposes of presenting for payment or acceptance for the maturity and protest, and giving notice of the dishonor of bills of exchange, bank checks, and promisory notes or other negotiable or commercial paper, be treated and considered as is the first day of the week, commonly called Sunday, and all notes, drafts, checks, or other commercial or negotiable paper falling due, or maturing on either of said negotiable paper falling due, or maturing on either of said holidays shall be deemed as having matured on the day previous.

H.R. 2244, 41st Congress

So holidays in the District of Columbia served two purposes. They were to be calls to fasting and thanksgiving and, for the purposes of financial instruments, would be treated as Sunday, meaning no business was done. These federal holidays were eventually extended to all federal employees. Then in 1938, laws were put in place to make these paid holidays for federal employees, (5 USC §6103).

State Holidays

As I’ve already mentioned, Congress can only create federal holidays. Each state creates their own holidays. While these state holidays correlate closely with their federal counterparts, there are differences. For example, the federal holiday is listed as “Christmas Day, December 25” (5 USC §6103), but in Tennessee it’s merely listed as “December 25” (Tenn. Code Ann. § 15-1-101). Under Tennessee law:

on which holidays and half-holidays all public offices of this state may be closed and business of every character, at the option of the parties in interest of the same, may be suspended.

Tenn. Code Ann. § 15-1-101

Tennessee law specifically states that business have the option to close on these holidays, thus recognizing the limitations of state power. I suggest you check your own state laws and see how they differ from both federal holidays and your assumptions about them.

Purpose of Holidays

As I noted before, today it seems most people focus on the second sense of the word Holiday, “a day on which one is exempt from work.” And that is certainly the point of the federal law on holidays. But what if we looked more at the first sense of the word, a “Holy Day”?

a day set aside for special religious observance

Holy Day, Merriam-Webster’s Online Dictionary

This idea may seem strange to modern ears, especially after decades of having a false interpretation of “Separation of Church and State” drummed into our heads. That phrase came from a letter Thomas Jefferson wrote to the Danbury Baptist, where he said:

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.”

Jefferson, Writings, Vol XVI

It seems the purpose of this wall of separation was not to protect the government from religion, but to protect religion from the government. This need for religion and morality was a key subject in George Washington’s farewell address as well.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity.

George Washington’s Farewell Address

If our political prosperity is supported by both religion and morality, should we not support them? Our first President went so far as to claim that someone could not claim to be a patriot if they denied that importance of religion and morality in the nation. As Mr. Washington points out, religion and morality are central to more than just churches.

Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

George Washington’s Farewell Address

Why is religion so important to morality? Simply put, religion reminds us both that there is someone (or in some religions something) greater than ourselves, and that we will one day be held accountable for our actions, even if not here on this earth. That’s why it’s so important to a sense of justice, and why courts have you swear or affirm on a bible to tell the truth. We hold to these traditions not merely because they bring a sense of solemnity to the occasion, but as a reminder of our obligation to seek justice as we participate. As the Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,

Declaration of Independence

If our unalienable rights come from our creator, then we must believe that there is a being that created us and who endowed us with those rights. If any being has the right to judge our lives, it’s the one who both created us and those rights we so cherish.

Holy Days

So if these holidays were originally set aside for special religious observance, shouldn’t we take this opportunity to restore them to that high cause? Why not start with Christmas? I’m not saying we have to give up our traditions, but wouldn’t this be a good time to remember the purpose of the holiday? A day to remember the birth of Jesus, whom many of us, then and now, have accepted as our Lord and Savior? A time of year to not just sing carols, but to put into action their calls for “peace on earth, good will to men,” “tidings of comfort and joy,” and even a “Silent night, holy night”? If religion and morality are indispensable supports to our political prosperity, should we not lift them up on these days we, as a people, have set aside as Holy Days? Perhaps, if we treated these days with more holiness, our politics would less like Ebenezer Scrooge’s were. I’m not saying our politicians hearts will grow three sizes that day, but maybe, just maybe, they’ll be less of a grinch while in office.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 16, 2024

• Have you received a census questionnaire this year?
• The Census is important, but lately it appears to be more about snooping on the American people.
• Could these census questionnaires actually be illegal?

Have you received one of these?

We’re all familiar with the decennial census, the enumeration of the population every ten years, but this isn’t one of those years. While the census is an important part of the union, it’s been corrupted and used illegally for decades, but these calls for more data are not only corrupted, but illegal.

The Census

The need to enumerate the population comes from Article I, Section 2, Clause 3 of the Constitution. Who is to be counted was changed in 1868 with the ratification of the Fourteenth Amendment.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

U.S. Constitution, Amendment XIV

Knowing how many people live in each state by a census is how the members of the House of Representatives are apportioned to the states. The only exception to who is counted are the Indians, who are not taxed.

The process for this enumeration remains in Article I.

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

U.S. Constitution, Article I, Section 2, Clause 3

Since the first meeting of Congress happened in 1789, the first census was conducted in 1790, and the census has been conducted every ten years since. However, this simple enumeration has been supplanted by a demographic inquisition.

The first question on the 2020 census was legitimate enough.

1. How many people were living or staying in this house, apartment, or mobile home on April 1, 2020?

2020 Census Questionnaire

However, the second question is a bit confusing.

2. Were there any additional people staying here on April 1, 2020 that you did not include in Question 1?

2020 Census Questionnaire

If question 1 is to include everyone living or staying in a house, how can there be additional people staying there? From there, things go far beyond an enumeration of people living in each state.

3. Is this house, apartment, or mobile home —
   Owned by you or someone in this household with a mortgage or loan? Include home equity loans.
   Owned by you or someone in this household free and clear (without a mortgage or loan)?
   Rented?
   Occupied without payment of rent?
4. What is your telephone number?

2020 Census Questionnaire

Then the questionnaire gets personal.

5. Please provide information for each person living here.
6. What is Person 1’s sex?
7. What is Person 1’s age and what is Person 1’s date of birth?
8. Is Person 1 of Hispanic, Latino, or Spanish origin?
9. What is Person 1’s race?

2020 Census Questionnaire

And this goes on for every person in the house. This in itself is a violation of the Constitution, but we’ll get into that later.

Latest Transgression

While this decennial fishing expedition is bad enough, a few weeks ago I started receiving cards and letters like this.

While this junk mail is an annoyance, there is something on this page that not only grabbed my attention, but pissed me off. Do you see what it is?  This is not only a lie, but is itself criminal. Would you like me to show you why?

Tenth Amendment

Let’s start with the fact that the United States isn’t allowed to enumerate the population whenever they want, only once every ten years. The United States only has the powers delegated to it by the Constitution, as stated in the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Since Congress is only empowered:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S. Constitution, Article I, Section 8, Clause 18

Since the power to enumerate the population is not vested in the United States except for once every ten years, it was neither necessary nor proper for Congress to pass a law to do so. That makes 13 USC §141(d) unconstitutional, invalid, and void.

(d) … the Secretary, in the year 1985 and every 10 years thereafter, shall conduct a mid-decade census of population in such form and content as he may determine, including the use of sampling procedures and special surveys, taking into account the extent to which information to be obtained from such census will serve in lieu of information collected annually or less frequently in surveys or other statistical studies.

13 USC §141(d)

This also means that §193 unconstitutional, invalid, and void as well.

In advance of, in conjunction with, or after the taking of each census provided for by this chapter, the Secretary may make surveys and collect such preliminary and supplementary statistics related to the main topic of the census as are necessary to the initiation, taking, or completion thereof.

13 USC §193

And that’s just the beginning.

Fourth Amendment

Both the demographic questions on the census and surveys are unconstitutional as well. That’s because they violate the Fourth Amendment to the Constitution.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

U.S. Constitution, Amendment IV

So the question that has to be answered is: Are these surveys reasonable? in the case Morales v. Daley, U.S. District Court for the Southern District of Texas found:

it is clear that asking personal questions of residents of the United States in the census was not regarded as an unlawful search.

Morales v. Daley

This is based on the history of the census.

The Census Bureau points out that from the very first census, performed in 1790, Congress authorized questions pertaining to age, gender, and race.

Morales v. Daley

However, there is a vast gulf between asking age, gender, and race in 1790 to who owns the dwelling and what is your telephone number. Remember, in 1790 only three-fifths of those not free were counted in the census, so asking about the state of servitude was reasonable.

That said, since the United States doesn’t have a constitutionally sound reason to have such detailed information or to update it so frequently, it’s not reasonable for them to search for such information.

Fifth Amendment

Not only is the United States illegally searching for this information, they try to intimidate us into witnessing against ourselves and giving up our right to be secure from unreasonable searches. As the Fifth Amendment states,

No person … shall be compelled in any criminal case to be a witness against himself

U.S. Constitution, Amendment V

You may be thinking that the census isn’t a criminal case, but the census document states that “Your response is required by law.” Meaning that there is the possibility of a criminal case. Just as you have a right to remain silent when confronted by law enforcement, even before criminal charges are pressed, you have a right to not answer questions from any government official. After all, the First Amendment states:

Congress shall make no law … abridging the freedom of speech

U.S. Constitution, Amendment I

Freedom of speech is not only the right to speak, but the right not to speak. Since there is no legitimate reason for the United States to have such information, you have no obligation to witness against yourself.

Deprivation of Rights

These facts makes the actions of the census not just unconstitutional, but criminal as well.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;

18 USC §242

That means that anyone who attempts to enforce this intimidation tactic is committing a federal crime.

Conclusion

For my entire adult life, I’ve only answered a handful of questions on the census. My name, my address, and the number of people who live in my house. This went from a decennial nuisance to a regular infringement on my rights. Contrary to what it says on the Census envelopes, not only is your response not required by any legitimate law, but their repeated searches for information is the violation of the law. While I know many people have simply thrown these pesky invasions in the trash, I am keeping them as evidence of their criminal activity. I’m considering sending a cease and desist letter to the Census, with a copy going to my state Attorney General. I’m curious if would you join in such a letter?

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 12, 2024

• What is a tort and why is it important?
• What is the federal law regarding tort claims against the federal government.
• Is this law constitutional?

One of the reasons I like answering questions is they prompt me to look at things I hadn’t thought about before. Take for example the recent request I had to review the Federal Tort Claims Procedure. While I review lawsuits regularly here, I’d never taken the time to look at this particular legislation.

What is a tort?

Let’s start with defining the term “tort.”

In law, any wrong or injury. Torts are injuries done to the person or property of another, as trespass, assault and battery, defamation and the like.

Tort – Webster’s 1828 Dictionary

A tort is a wrong or injury; a grievance you might say. Hopefully, that comparison should remind you of the First Amendment.

Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.

U.S. Constitution, Amendment I

Tort, technically, is the wrong or injury, while a tort claim refers to the seeking of redress of that grievance. The Federal Tort Claims Procedure is the statutory law Congress passed to regulate tort claims against the federal government. The procedures used for federal tort claims are contained in Chapter 171 of Title 28 of the United States Code.

• 2672. Administrative adjustment of claims

After the definitions, the law starts with what are called “administrative adjustments.”

The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred:

28 USC §2672. Administrative adjustment of claims

Section 2672 basically says that the head of each federal agency can settle claims for money damages against the United States for injury, loss, or even death. That means if you have a tort, a claim of injury, against the United States, the head of the agency responsible can negotiate and settle rather than going to court. Of course, they can only settle if you agree to the settlement.

Let’s talk about the line “under circumstances where the United States, if a private person, would be liable.” Under the law you have “natural” and “artificial” persons. You and I are natural persons, while corporations are artificial. Under this law, the United States is just as liable as a natural person would be. If you could sue your neighbor for a tort, you can sue the United States for the same tort.

Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to this section shall be paid by the head of the Federal agency concerned out of appropriations available to that agency. Payment of any award, compromise, or settlement in an amount in excess of $2,500 made pursuant to this section or made by the Attorney General in any amount pursuant to section 2677 of this title shall be paid in a manner similar to judgments and compromises in like causes and appropriations or funds available for the payment of such judgments and compromises are hereby made available for the payment of awards, compromises, or settlements under this chapter.

28 USC §2672. Administrative adjustment of claims

Another stipulation in this section of the code is how payments are made based on their size. $2,500 or less and the agency pays directly. More than $2,500, or if the award is to be made by the Attorney General, it’s handled the same way any other legal settlement would be paid.

• 2673. Reports to Congress

The head of each federal agency shall report annually to Congress all claims paid by it under section 2672 of this title, stating the name of each claimant, the amount claimed, the amount awarded, and a brief description of the claim.

28 USC §2673. Reports to Congress

Congress holds the power of the purse. Or, as Article I, Section 9 states:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

U.S. Constitution, Article I, Section 9, Clause 7

Even though an agency head may pay a claim of $2,500 or less out of its existing appropriations, they still have to report to Congress on the expenditure, so they can be property published.

• 2674. Liability of United States

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

28 USC §2674. Liability of United States

As stated before, the United States is just as liable to tort claims as a private individual. However, it cannot be liable for interest prior to judgment. Considering that civil cases against the United States can take years to be decided, this said interest could add up to a lot of money. What this means is that the United States pays no price for delaying or otherwise slowing down the judicial process. I wonder if the reciprocal law is in effect? If the United States sues you, are you liable for interest prior to judgment?

If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.

28 USC §2674. Liability of United States

If the claim involves a wrongful death, where the injury happened matters. Even if that location only allows punitive (injury) damages, the United States shall still be liable for the actual or compensatory (replacement) damages. Those damages are to be measured by the pecuniary (monetary) injuries resulting from the death.

With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled.

28 USC §2674. Liability of United States

The United States is entitled to assert any defense based on judicial or legislative immunity available to an employee of the United States. Legislative immunity comes from Article I, Section 6.

The Senators and Representatives … for any Speech or Debate in either House, they shall not be questioned in any other Place.

U.S. Constitution, Article 1, Section 6, Clause 1

You cannot sue a Senator or Representative for what they say in either house. Similarly, judicial immunity protects judges from suit for their judicial acts. There is just one problem with this section of the law: There is no constitutional authority for judicial immunity, and legislative immunity is limited to Senators and Representatives speech and debate. So the United States does not have legislative or judicial immunity, and neither do any of its employees.

Speaking of constitutional issues:

With respect to any claim to which this section applies, the Tennessee Valley Authority shall be entitled to assert any defense which otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available to the employee of the Tennessee Valley Authority whose act or omission gave rise to the claim as well as any other defenses to which the Tennessee Valley Authority is entitled under this chapter.

28 USC §2674. Liability of United States

The Tennessee Valley Authority (TVA) is an unconstitutional, federally owned power corporation. It should surprise no one that Congress tries to protect its illegal creation with such language.

• 2675. Disposition by federal agency as prerequisite; evidence

Before a person takes the United States to court, Congress wants them to at least attempt to resolve the issue with the offending agency directly.

(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.

• 2675. Disposition by federal agency as prerequisite; evidence

First, a person has to present their claim to the appropriate federal agency. As one might expect, the agency may find reason to delay their response to some of these claims. That’s why there’s a six month time limit before a de facto denial takes effect.

• 2680. Exceptions

What would legislation about holding government actors accountable be, without a series of exceptions.

The provisions of this chapter and section 1346(b) of this title shall not apply to—

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

• 2680. Exceptions

So a government actor who’s executing an invalid law cannot sue under this act? On the one hand, if the government employee has been told what they’re doing is legal I can understand this. Still, don’t government employees have a duty to support the Constitution? Shouldn’t they be held accountable for any unconstitutional acts, even if the law says it’s OK?

(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.

• 2680. Exceptions

You cannot sue the United States for the failures of the Postal Service.

(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter and section 1346(b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer,

• 2680. Exceptions

Neither can you sue based on the assessment or collection of any taxes, to the detention, or confiscation, of any goods or merchandise. There is a long list of specific exceptions for property in the possession of law enforcement officers; I won’t bore you with the legalese. To summarize, property seized under forfeiture, interest on claims, claims against the operation of the Treasury or military forces, and the Tennessee Valley Authority or Panama Canal Company are all exempted from claims under this act.

Conclusion

What conclusions can I draw from this review of the Federal Tort Claims Procedures Act? Most of is appears to be cut and dry legalese designed to show a level of accountability without exposing the federal government to tort claims for the more serious constitutional violations. The exceptions listed in §2680 does seem to violate the Petitions Clause of the First Amendment.

Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.

U.S. Constitution, Amendment I

After all, it lists situations where people cannot sue, even though they have a tort, an injury, or a wrong. That said, I don’t believe this act even approaches the worst violations of the Constitution that Congress has passed.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 6, 2024

• After the Constitution was signed and sent to the states, a great debate between those who supported ratification, and those who were concerned.
• Writings for the two groups became known as the Federalist and Antifederalist Papers.
• This articles focuses on papers #1, should the Constitution be ratified.

I don’t believe a serious study of the Constitution can be made without looking at the public debates over the document. After the Constitutional Convention sent the proposed constitution to the states for ratification, a great debate was had over its pros and cons. Supporters of the document as proposed, Alexander Hamilton, John Jay, and James Madison, published essays in New York State newspapers under the pseudonym Publius. These essays are collectively known as the Federalist Papers. Meanwhile, several authors published articles and essays opposing, or at least cautioning a rush to adopt the proposed Constitution, under many pseudonyms.

In this article, we’ll look at the first papers from each group. Both Federalist #1 and Antifederalist #1 deal with the same topic: Should the states ratify the newly proposed Constitution?

Clash of Ideals

While the Federalists and Antifederalists are often claimed to be for and against the Constitution, respectively, a closer look at their writings seems to show that the Antifederalists were no less patriotic than the federalist. Rather, having recently fought a war against a powerful central government, they were not ready to rush into another one. A better description of the differences would seem to be that the federalists wanted a strong central government to protect the union while the antifederalists wanted to insure the rights of the individuals were protected.

Let’s start with Federalist #1 and the argument for adopting the proposed Constitution.

Federalist #1

The first of the Federalist Papers was written by Alexander Hamilton and published in the Independent Journal under the pseudonym Publius.

AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America.

Alexander Hamilton – Federalist #1

While our current federal government was created by the Constitution of the United States, it was not the first federal government for the United States of America. The government created by the Articles of Confederation had many issues, but mainly, it had responsibility without the power to fulfill them. Probably the most well known was the fact that the federal government under the Articles of Confederation could levy taxes against the states, but had no mechanism to force them to pay. So when Article VIII of the Articles states:

Article VIII. All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state

Articles of Confederation

There was no mechanism to make sure the states supplied their part of the expenses.

While many Antifederalist claimed the Federalists wished to establish an aristocracy, that is not what the Federalists stated.

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Alexander Hamilton – Federalist #1

Could the people establish good government on their own? Or did government need to be forced upon them?

If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

Alexander Hamilton – Federalist #1

The decision of what kind of government would be set up for this young republic would be up to the people, as they would genuinely suffer the consequences.

Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good.

Alexander Hamilton – Federalist #1

The Federalists claim to desire a fair consideration of their position: Their support of the drafted Constitution. What do they see as their obstacles?

Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

Alexander Hamilton – Federalist #1

It seems power and ambition are nothing new in this country. There are some who resist all change, whether for good of for ill. There are others whose ambition would drive them to place their own prospects over those of their country.

And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.

Alexander Hamilton – Federalist #1

Both sides claimed they were guided by purer principles than their opponents. Except for the older language, this could just as easily be a campaign flyer from our recent elections. Whose principles are purer? Could both be pure, yet still disagree?

And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.

Alexander Hamilton – Federalist #1

Needless to say, there were many accusations and name calling, from both sides, although, as we’ll see when we review Antifederalist #1, Mr. Hamilton has a point. That’s not to say he wasn’t willing to throw a few verbal jabs at his opponents.

An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good.

Alexander Hamilton – Federalist #1

Yes, the Antifederalists stigmatized what Mr. Hamilton refers to as “the energy and efficiency of government.” Then again, a look at Washington, D.C. today shows that the Antifederalist’s concerns over such a powerful government should have been better heeded.

On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.  History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

Alexander Hamilton – Federalist #1

Mr. Hamilton makes a valid point. Without a vigorous government to protect the rights of the people, despotism had frequently found a way to power at the expense of those rights.

In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution.

Alexander Hamilton – Federalist #1

Ultimately, the decision about our nation’s future was placed in the hands of her people. Our responsibly, to insure that governments at all levels remain servants of the people rather than their masters, has never lessened. However, history has shown that We the People have become more interested in being ruled than governed.

Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness.

Alexander Hamilton – Federalist #1

Being a federalist, and one willing to spend the time and effort to write most of the Federalist Papers, it should be no surprise that Alexander Hamilton believes that the safest course for the people is to adopt the Constitution as drafted. That, however, is not to say he was unaware of efforts to thwart its adoption.

But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.

Alexander Hamilton – Federalist #1

Should the thirteen states join together, or would that nation be too large and unwieldy? Would the people be better served by a number of smaller confederacies?

For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.

Alexander Hamilton – Federalist #1

Now that there are 50 states in our union, what can we observe? Before I answer that question, let us consider the other side of the argument.

Antifederalist #1

The first of the Antifederalist Papers was published on November 26, 1787 in The Boston Gazette and Country Journal. In a somewhat ironic twist, that author of this essay, John DeWitt, used the pseudonym A Federalist.

I am pleased to see a spirit of inquiry burst the band of constraint upon the subject of the NEW PLAN for consolidating the governments of the United States, as recommended by the late Convention. If it is suitable to the GENIUS and HABITS of the citizens of these states, it will bear the strictest scrutiny.

A Federalist – Antifederalist No. 1

Mr. DeWitt made the point that, if the proposed Constitution was worthy of support, it should be able to bear up under strict scrutiny.

The PEOPLE are the grand inquest who have a RIGHT to judge of its merits.

A Federalist – Antifederalist No. 1

Both Mr.s Hamilton and DeWitt agreed that the people have the right to be the ultimate judge of whether the proposed Constitution should be ratified.

The hideous daemon of Aristocracy has hitherto had so much influence as to bar the channels of investigation, preclude the people from inquiry and extinguish every spark of liberal information of its qualities.

A Federalist – Antifederalist No. 1

As I’ve already pointed out, the Antifederalists were concerned that the United States could become a land of aristocracy at the expense of the liberty of the American people. Their concerns, about those in power using censorship to deprive everyday Americans of the information they needed to make good decisions, is nothing new in this land.

Those furious zealots who are for cramming it down the throats of the people, without allowing them either time or opportunity to scan or weigh it in the balance of their understandings, bear the same marks in their features as those who have been long wishing to erect an aristocracy in THIS COMMONWEALTH [of Massachusetts]. Their menacing cry is for a RIGID government, it matters little to them of what kind, provided it answers THAT description. As the plan now offered comes something near their wishes, and is the most consonant to their views of any they can hope for, they come boldly forward and DEMAND its adoption. They brand with infamy every man who is not as determined and zealous in its favor as themselves. They cry aloud the whole must be swallowed or none at all, thinking thereby to preclude any amendment; they are afraid of having it abated of its present RIGID aspect.

A Federalist – Antifederalist No. 1

In addition to their concerns about a rigid government about to deprive the people of their rights and liberties, the Antifederalists saw the Federalist as attempting to rush the adoption of the Constitution before the people had a chance to property read and digest it. That is rather like politicians today who tell us “we have to pass the bill so that you can find out what is in it.”

They have strived to overawe or seduce printers to stifle and obstruct a free discussion, and have endeavored to hasten it to a decision before the people can duty reflect upon its properties. In order to deceive them, they incessantly declare that none can discover any defect in the system but bankrupts who wish no government, and officers of the present government who fear to lose a part of their power. These zealous partisans may injure their own cause, and endanger the public tranquility by impeding a proper inquiry; the people may suspect the WHOLE to be a dangerous plan, from such COVERED and DESIGNING schemes to enforce it upon them.

A Federalist – Antifederalist No. 1

It seems partisan name calling, and most likely hyperbole, are nothing new in American politics. Were the Federalists attempting to censor “misinformation,” much like the federal government does today? Or were the Antifederalists using these claims to derail their political opponents? One thing is for sure, while the Federalists wanted a stronger federal government, the Antifederalists wanted stronger states.

I had rather be a free citizen of the small republic of Massachusetts, than an oppressed subject of the great American empire.

A Federalist – Antifederalist No. 1

While the claim that the Antifederalists were against ratification of the proposed Constitution is quite common, that is not entirely true.

If we can confederate upon terms that wilt secure to us our liberties, it is an object highly desirable, because of its additional security to the whole. If the proposed plan proves such an one, I hope it will be adopted, but if it will endanger our liberties as it stands, let it be amended; in order to which it must and ought to be open to inspection and free inquiry.

A Federalist – Antifederalist No. 1

Would the proposed Constitution secure the people’s liberties or endanger them? That’s the central contention between the two groups. However, it appears Mr. DeWitt’s greatest concern is the speed with which the proposed Constitution was being ratified.

It will first be allowed that many undesigning citizens may wish its adoption from the best motives, but these are modest and silent, when compared to the greater number, who endeavor to suppress all attempts for investigation.

A Federalist – Antifederalist No. 1

Mr. DeWitt does not imply that everyone who supports the proposed Constitution did so with evil intent, but that the vast majority seemed to want to suppress any attempts to investigate the details of the document. It may surprise you that Mr. DeWitt lays the blame for this apparent rush to judgment on many of the same people Americans vilify today.

These violent partisans are for having the people gulp down the gilded pill blindfolded, whole, and without any qualification whatever. These consist generally, of the NOBLE order of C[incinnatu]s, holders of public securities, men of great wealth and expectations of public office, B[an]k[er]s and L[aw]y[er]s: these with their train of dependents form the Aristocratick combination. The Lawyers in particular, keep up an incessant declamation for its adoption; like greedy gudgeons they long to satiate their voracious stomachs with the golden bait. The numerous tribunals to be erected by the new plan of consolidated empire, will find employment for ten times their present numbers; these are the LOAVES AND FISHES for which they hunger.

A Federalist – Antifederalist No. 1

It seems well over 200 years later little has changed when it comes to class warfare; the “haves” versus the “have nots” is as old as time. As is the vilification of lawyers and their relationships with those who make the laws they claim to serve.

The time draws near for the choice of Delegates. I hope my fellow-citizens will look well to the characters of their preference, and remember the Old Patriots of 75; they have never led them astray, nor need they fear to try them on this momentous occasion.

A Federalist – Antifederalist No. 1

As Massachusetts was preparing to choose delegates for their ratification convention, Mr. DeWitt urged his fellow citizens to seriously consider the character of those whom they would choose. Something we in the 21st century should consider each and every time we vote.

Conclusion

Is anyone else amazed at how similar the political discourse of today mirrors that of 1787? Censorship, class warfare, and necessity all trotted out in the name of protecting the American people. With 237 years of experience, which of these two camps were right? The best answer I can give is: Both.

Granted, no one can prove what would have happened if the ratification debates had gone differently. I do think history has shown that a strong central government has been as helpful in foreign affairs as it has been detrimental in domestic. Slavery, Racial Discrimination, Fascism, and Communism may not have been defeated if not for the might of a powerful central government. Then again, it has been that same strong central government that has helped keep racism and communism as an integral part of American life. As the Federalists warned, the Bill of Rights demanded by the Antifederalists has been used to regulate and abuse the very rights it was supposed to protect.

As we look back through history, I hope you will agree there is a lot to learn from both sides. For example, the struggle between a ruling elite and a free and independent people, centralized vs distributed power, and the character of the men and women chosen for office are important, but let’s not forget that the very same power of government that can protect our rights can also infringe on them. Now, more than ever, I think the American people need to remember the words of James A. Garfield

[N]ow more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature.

A Century of Congress

I hope to do more comparisons between these two sets of essays. While they do not align exactly, they often cover similar topics. As Santayana warned, “Those who cannot remember the past are condemned to repeat it.”

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 26, 2024

• A gun, by any other name, is still protected by the Second Amendment.
• Who decides what the definition of a firearm is, Congress, the ATF, or the courts.
• Should a person be able to build their own firearm without government permission?

I cannot count how many times I’ve said it, but words mean things. It’s one of the reasons I keep referring back to documents to see the actual words used so I can find their definitions. In the case Garland v. VanDerStok, the issue seems to come down not just to what the definition of a firearm is, but who gets to decide. What seemed to be forgotten in the oral arguments is the fact that an ‘arm’ by any other name, is still protected by the Second Amendment.

The Questions Presented to the Court

As in almost any other Supreme Court case, there are specific questions that are presented to the court for a decision.

The questions presented are:

1. Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive, ” 27 C.F.R. 478.11, is a “firearm” regulated by the Act.
2. Whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver, ” 27 C.F.R. 478.12(c), is a “frame or receiver” regulated by the Act.

Garland v. VanDerStok – Petition for Certiorari

Before we get into the oral arguments from the two parties, I want you to notice something from the questions presented. Specifically, whether parts of the Code of Federal Regulations (C.F.R.) are regulated by the Gun Control Act of 1968.

There’s another consideration to discuss before getting into oral arguments about the constitutionality of the Gun Control Act Congress passed (18 USC Chapter 44) back in 1968. As General Prelogar notes, Congress established several requirements as part of the law. The question no one is asking in this case is: Did Congress have the constitutional authority to create such legislation? In §921 – Definitions, Congress tried to tie this legislation to their power to regulate interstate commerce.

The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).

18 USC §921(a)(2)

The terms “interstate of foreign commerce” are important, since Article I, Section 8, Clause 3 delegates to Congress the authority to:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

Keep these two acts in mind, as we’ll be discussing them later.

Government’s Oral Argument

As the petitioner, Attorney General Garland’s attorney, Solicitor General Elizabeth Prelogar, is first to present her oral argument.

GENERAL PRELOGAR: Mr. Chief Justice, and may it please the Court:

The Gun Control Act imposes straightforward but essential requirements. Firearms sellers and manufacturers must mark their products with serial numbers, maintain sales records, and conduct background checks. The industry has followed those conditions without difficulty for more than half a century, and those basic requirements are crucial to solving gun crimes and keeping guns out of the hands of minors, felons, and domestic abusers.

Garland v. VanDerStok – Oral Arguments

The Gun Control Act does claim to impose requirements on the sellers and manufacturers of firearms. It also defines what is a firearm, which we’ll get into later.

But, in recent years, companies like the Respondents here have tried to circumvent those requirements. They’ve begun selling firearms as easy-to-assemble kits and frames and receivers that require minimal work to be made functional. They’ve advertised the products, in their words, as “ridiculously easy to assemble and dummy-proof” and touted that you can go from opening the mail to have a fully functional gun in as little as 15 minutes, no serial number, background check, or records required.

Garland v. VanDerStok – Oral Arguments

The problem, as Mr. Garland claims, is that people have been manufacturing things that are not firearms, but can be made into firearms. Since these products, at the time when they pass through interstate commerce are not firearms, they do not have to meet the requirements established under the Gun Control Act. General Prelogar argues that, even though these kits do not meet the definition of firearm in the law, they are dangerous and should be labeled firearms.

Those untraceable guns are attractive to people who can’t lawfully purchase them or who plan to use them in crimes. As a result, our nation has seen an explosion in crimes committed with ghost guns.

Garland v. VanDerStok – Oral Arguments

While the news has been proliferating the idea that these Privately Made Firearms (PMFs), what General Prelogar refers to as “ghost guns,” are popular among criminals and their use in crimes have “exploded,” I’ve seen very little actual data to prove that. For example, in the ATF’s Crime Guns Recovered and Traced Within the United States and Its Territories:

Law enforcement agencies recovered and submitted 37,980 suspected privately made firearms (PMFs) to ATF for tracing between 2017 and 2021.

Crime Guns Recovered and Traced Within the United States and Its Territories

First of all, just because a firearm is submitted to the ATF for tracing does not mean it was used in the commission of a crime. Compare the 37,980 PMFs submitted to the ATF with the 1,922,577 total firearms submitted during the same timeframe, and you’ll see they represent just under 2% of all guns submitted to tracing. The ATF claims:

The dramatic rise in trace submissions involving PMF’s reflects both increased criminal use of these firearms and enhanced awareness among law enforcement that ATF will process trace requests for PMFs.

Crime Guns Recovered and Traced Within the United States and Its Territories

However, they seem to ignore both the fact that privately made firearms have grown in popularity, along with ATF’s own fear mongering campaign regarding “ghost guns.”

Let’s go back to General Prelogar’s argument.

In the face of that public safety crisis, ATF promulgated this rule to underscore two points about the Gun Control Act’s plain text.

Garland v. VanDerStok – Oral Arguments

Notice, the law was not changed, but ATF promulgated a rule. This is important for two reasons. First, a rule from an executive agency is not and cannot be law, since all power for making laws is vested in Congress (Article I, Section 1). Second, agencies rules are not listed as part of the supreme law of the land in Article VI, Clause 2. This, too, will be an important part of our discussion later.

First, a weapon parts kit that can readily be converted to function as a gun with common tools, often in under an hour, is a covered firearm.

Garland v. VanDerStok – Oral Arguments

Says who? It certainly isn’t Congress, or the people they represent. Rather, it’s a group of bureaucrats who claim that a parts kit is a covered firearm. That’s something those bureaucrats are not authorized to do.

Second, a product is a frame or receiver under the Act even if the buyer must drill a few holes or remove a few superfluous pieces of plastic to make it functional.

Garland v. VanDerStok – Oral Arguments

Again, says who? Because, according to the respondent, in the case City of Syracuse v. ATF, the agency stated that unfinished receivers did not meet the statutory definition of a firearm.

Both of those points are consistent with how ATF has interpreted and implemented the Act across five decades and 11 different presidential administrations.

Garland v. VanDerStok – Oral Arguments

If the respondent is correct, that statement is not true. They claim that just a few years ago the ATF stated the exact opposite. Besides, does a wrong decision become right simply because it was followed for a long time?

Respondents now seek a sea change in the Act’s scope. They claim that if a firearm isn’t a hundred percent functional, if it’s missing just one hole that could be drilled in seconds and immediately assembled into a working gun, that product can be sold to anyone online with no background check, no records, and no serial number.

Garland v. VanDerStok – Oral Arguments

As we’ll see in the respondent’s oral arguments, they claim it’s the ATF that’s seeking a sea change in the scope of the Gun Control Act.

That contradicts the Act’s plain text, and it also contradicts common sense. This Court should make clear that the Act regulates these products as what they are, firearms and frames and receivers of firearms.

I welcome the Court’s questions.

Garland v. VanDerStok – Oral Arguments

The Attorney General may believe that the respondent’s position contradicts the plain text of the act, but the plain text of the act contradicts the Constitution of the United States. Before I sum this all up, let’s look at the other side.

VanDerStok’s Oral Arguments

Arguing for Ms. VanDerStok is attorney Peter Patterson.

1. PATTERSON: Mr. Chief Justice, and may it please the Court:

This case turns on decisions made by Congress in the Gun Control Act of 1968.

First, Congress altered the common understanding of “firearm” to include other weapons that may readily be converted to firearms.

Second, in a departure from prior federal law, Congress decided to regulate only a single part of a firearm, the frame or receiver, and Congress did not alter the common understanding of a “frame or receiver.”

Garland v. VanDerStok – Oral Arguments

The common definition of a firearm is:

a weapon from which a shot is discharged by gunpowder —usually used of small arms

Firearm – Merriam-Webster Dictionary Online

In other words, something you carry like a pistol, rifle, or shotgun. Congress, however, decided to expand that definition to what they call “destructive devices.”

(4) The term “destructive device” means-

(A) any explosive, incendiary, or poison gas-

(i) bomb,

(ii) grenade,

(iii) rocket having a propellant charge of more than four ounces,

(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,

(v) mine, or

(vi) device similar to any of the devices described in the preceding clauses;

18 USC 921(a)(4)

So Congress has basically redefined a “firearm” into anything that goes boom. But notice, Congress didn’t call them firearms, they redefined “destructive devices” as firearms. But according to Ms. VanDerShok, there’s more.

ATF has now exceeded its authority by operating outside of the bounds set by Congress.

One, ATF has expanded the definition of “frame or receiver” to include items that may readily be converted to a frame or receiver.

And, two, ATF has expanded the definition of “firearm” to include collections of parts that are not weapons and that do not include a frame or receiver.

Garland v. VanDerStok – Oral Arguments

This is where language gets tricky. You see the law states that a firearm is a weapon that will or may be readily converted to express a projectile. The law also states that the frame or receiver of such a weapon is also a firearm, but the “readily converted” is applied to the weapon, not the frame or receiver, which is the serialized part of many of these weapons.

Some concern has been raised about circumvention. But, of course, complying with a statute is not circumventing it. And as this Court said in Abramski, which has already been referenced, Congress, in the Gun Control Act, did not seek to pursue its purposes of controlling access to firearms to the nth degree.

And, notably, Congress did not regulate the secondary market for firearms, and that secondary market is a much bigger source of firearms for criminals than privately made firearms.

Garland v. VanDerStok – Oral Arguments

Here, Mr. Patterson deals with some of General Prelogar’s assertions. First, the assertion that companies were trying to circumvent the law by complying with its specific language. He also questions the assertion that these personally made firearms are a major source of weapons for crime.

There also has been questions raised about the agency’s prior practice. There definitely has been a sea change by the agency here. The agency projected that its rule would put 42 out of 43 unlicensed manufacturers out of business.

And what the agency said in the Syracuse litigation was they said: “An unfinished frame or receiver does not meet the statutory definition of ‘firearm’ simply because it can be designed to or can readily be converted into a frame or receiver.” That’s the exact standard they’ve now adopted.

Garland v. VanDerStok – Oral Arguments

It seems quite obvious from ATF statements that their goal is to put these manufactures out of business. Was that the goal ATF was given when it was created? As stated before, Mr. Patterson points to a previous case where the ATF stated that unfinished frames or receivers do not meet the statutory definition of firearm. So who is trying to change the rules, Ms. VanDerStok or the ATF?

Instead, what they looked at was whether critical machining operations had taken place. And, to be clear, we have no quarrel with that prior practice. We have raised as alternatives, one, something has to be completely machined, or, two, the critical machining operation test.

And the — the latter, we submit, is more consistent with the statutory language and solves the machine gun problem because, if you say, in the machine gun provision, a frame or receiver is also regulated, and if one hole is all that separates a semi-automatic receiver from a machine gun receiver, it’s hard to see how the “readily” standard would not also be applied there.

I welcome the Court’s questions.

Garland v. VanDerStok – Oral Arguments

Which brings us to the crux of this matter: What does the word “readily” mean? According to the Merriam-Webster Dictionary Online, “readily” means without much difficulty. Yet as I understand it, these unfinished receivers are also known as 80% receivers, since only about 80% of the machining has been completed. How “readily” does that make them?

Questions for the Justices

While most of the time was spent on questions. In this case, there are only a couple of questions from Justice Alito I’d like to discuss here.

JUSTICE ALITO: — if I show you — I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?

GENERAL PRELOGAR: No, because, again, those items have well-known other uses to become something other than an omelet.

The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.

Garland v. VanDerStok – Oral Arguments

A lot of time was spent on when does a part become a frame or receiver, and there were many examples and analogies. What I found interesting here was not Justice Alito’s question analogizing a frame or receiver with a western omelet, but part of General Prelogar’s response. In her mind, there is no other reason in the world for a weapon than combat, which Merriam-Webster’s Dictionary Online defines as:

a fight or contest between individuals or groups active fighting in a war

Combat: Merriam-Webster’s Dictionary Online

But there are numerous uses for weapons that do not involve combat. There is sport and target shooting, hunting, and collecting, to name just a few. General Prelogar delves into this further in her rebuttal, which I will get to soon.

The second question/analogy from Justice Alito was presented to Mr. Patterson.

JUSTICE ALITO: Suppose I see that my neighbor is restoring a classic car, and — but he’s taken out the — some critical parts. And then someone says, well, what is that? And I — I might well say, well, that’s a 1957 Thunderbird, even though you couldn’t drive it and it would take some work to make it do the thing that it was originally created to do.

So isn’t that what — isn’t that the essence of your backup argument? The thing must still be such that one would call it a frame or receiver even if it is not fully ready to be functional as a — as a frame or receiver at this time?

Garland v. VanDerStok – Oral Arguments

The serious flaw in Justice Alito’s analogy is while the work in progress may be a car, it does not need to be registered or otherwise regulated until it is used on the road. Based on this analogy the whole concept of “readily converted” falls apart.

Prelogar’s Rebuttal

As the attorney for the petitioner, Solicitor General Prelogar was given the opportunity to rebut her opponents statement and answers.

But I also think it’s contradicted by the facts on the ground because what the evidence shows is that these guns were being purchased and used in crime. They were sold to be crime guns. There was a 1,000 percent increase between 2017 and 2021 in the number of these guns that were recovered as part of criminal investigations.

And it makes perfect sense because the whole reason why you would want to get your hands on one of these unserialized, untraceable firearms is if you are a prohibited person or you want to use that gun in a crime.

Garland v. VanDerStok – Oral Arguments

General Prelogar claims there is evidence, but doesn’t provide any actual evidence that unfinished frames and receivers are being purchased to be used in crimes. Yes, there has been a huge increase in the number of these guns sent to the ATF for tracing, but even they do not claim all of these weapons are “crime guns.” Such an increase should be expected given the once growing number of manufacturers and kits.

The evidence shows that actually, the market for ghost guns essentially collapsed after this rule was permitted to go into effect, which I think just underscores what was evident all along: The reason why you want a ghost gun is specifically because it’s unserialized and can’t be traced.

Garland v. VanDerStok – Oral Arguments

Apparently, based on General Prelogar’s prejudice that personally manufactured firearms have no purpose other that to commit crimes, she believes that the ATF’s rule was cracking down on crime. I guess the idea that law abiding citizens, with no thought or intention of committing a crime, would not want to take a chance on crossing an ATF that has a reputation for vigorous and heavily armed response to perceived violations of their rules.

And more fundamentally, if there is a market for these kits for hobbyists, they can be sold to hobbyists. You just have to comply with the requirements of the Gun Control Act. Someone who is lawfully allowed to possess a firearm and wants to build it can purchase that kit if they undergo a background check. And so, if there is a market for these products, they can operate under the statute.

Garland v. VanDerStok – Oral Arguments

Where in the Constitution does it say that the government needs to know about all of the arms held in private hands? Nowhere. In fact, by telling someone they cannot exercise their right to keep and bear arms without the government knowing about it is not only a violation of the Second Amendment, but of the Fourth and Fifth Amendments as well.

For a third reason, that means that this is a standard that is familiar in the law and familiar to industry. I think it’s really notable here that we don’t have the major gun manufacturers suing us about this Final Rule, and the reason for that is because this “readily converted” standard is the one that has governed their conduct ever since the Gun Control Act was enacted.

Garland v. VanDerStok – Oral Arguments

I wonder, General Prelogar, just how many “major gun manufacturers” were selling unfinished frame or receiver kits? Could it be that’s why they didn’t sue? After all, why would the major gun manufactures want to support their competition?

Conclusion

One thing I noted is how often the justices described completing one of these kits as “drilling a hole or two” or “clipping off a plastic part.” I admit that I haven’t built a firearm this way, but from what I know of the process, it’s not like putting a child’s Christmas toy together.

It’s quite apparent the government’s main concern is the access to firearms of which it is unaware. Why else would they focus on serialization and record keeping? Why claim that the sole purpose for these devices is combat when that’s patently untrue? And why else point to the use of these firearms for criminal activity and not compare it to their lawful uses?

Let’s face it, government today wants to be in control of everything, especially when it might give the people the power to oppose government. Which raises an interesting question from history:

“Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense?” —Patrick Henry

Apparently, at least in the mind of the federal government today, the answer is yes. Otherwise they would pay more attention to the actions of criminals and not the property of law abiding citizens.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 20, 2024

• How much wastewater is too much?
• Congress, in the Clean Water Act, created a twisted and convoluted process for managing wastewater discharges.
• Are the permits the EPA issues detailed enough for San Francisco to follow or not?

How much pollution is too much? We all want clean air and water, but we still want to drive our cars and flush our toilets as well. The question in San Francisco v. EPA is how specific does the EPA need to be when it tells cities how much waste they can discharge into our nation’s waterways. From a constitutional standpoint, this case is not about waste water, but the power of executive agencies under the laws as written.

My Preface

Before I get into the details of the case, I want to preface my analysis. Before I look at the arguments made by both sides, I feel it is important to point out that the Constitution does not delegate to the United States the power to regulate or protect the environment. While this point is not brought up during oral arguments, it’s something any Constitutional scholar should keep in mind. It may also help explain some of the craziness we find in the arguments.

San Francisco’s Argument

San Francisco’s problem is they don’t think the way the Environmental Protection Agency (EPA) defines the city’s responsibilities in their discharge permits. The city claims that what they refer to as “Generic Prohibitions” are not definitive enough to hold them accountable for violations.

Section 301(b)(1)(C) of the Clean Water Act assigns EPA the job of setting the effluent limitations necessary to meet and implement water quality standards. The water quality standards are not the limitations themselves. Instead, they set the goals for the water body. EPA must translate those goals into discharge limitations.

San Francisco v. EPA – Oral Arguments

The first question that should have been asked is if the Constitution empowers Congress to assign an executive agency to set limits on effluent discharges?

There is another problem that isn’t identified here, but may help explain San Francisco’s concerns. You see, the EPA doesn’t set water quality standards, the state does. But, as we’ll find out later in oral arguments, those water quality standards don’t have the force of law. Only the EPA discharge limitations do.

The Generic Prohibitions fail this task. As Judge Collins explained below, the Generic Prohibitions erase the distinction between water quality standards and discharge limitations, making them one and the same.

San Francisco v. EPA – Oral Arguments

The problem, as San Francisco’s attorney Tara Steeley explains, is that the EPA didn’t give the city discharge limitations, but basically repeated the state’s water quality standard. Problems with using water quality standards though, is the reason Congress amended the Clean Water Act to implement the permitting system now in place.

The Generic Prohibitions revive the very “cause or contribute” standard Congress repealed. And they do not function as discharge limitations. As the Second Circuit recognized, they add nothing that tells a permitholder how to control its discharges.

San Francisco v. EPA – Oral Arguments

The city also claims that these “generic prohibitions” open the city, as a discharge permit holder, to legal liability through their vagueness.

The Generic Prohibitions are also inconsistent with the Act’s permit shield. The shield protects permitholders from liability as long as they comply with their permit terms. But, by imposing indeterminate requirements, the Generic Prohibitions prevent permitholders from relying on the shield’s protections.

San Francisco is therefore exposed to crushing criminal and civil penalties even when it otherwise complies with its 300-page permit.

San Francisco v. EPA – Oral Arguments

Questions for San Francisco

Justice Thomas started the questioning of the San Francisco attorney.

JUSTICE THOMAS: — with this permit, what is at bottom the problem?

MR. STEELEY: What at bottom is the problem is that permitholders don’t know what they need to do to comply. We know how to comply with the 300 pages of our permit, which tells us our discharge limitations that we need to achieve.

The problem with the Generic Prohibitions is that they don’t tell us what in addition that we need to do. And if I could provide an example of that. One of California’s water quality standards is no objectionable algae bloom should form in the water body. San Francisco doesn’t know how it must control its discharges to prevent that condition from forming in the water body.

And we can’t know because whether a condition will form in the water body will necessarily depend on what other permitholders or other non-point sources are adding to the water body and the flow of the water itself.

What San Francisco can control is our own discharges. We cannot control the receiving water conditions.

San Francisco v. EPA – Oral Arguments

Bottom line, by holding the City of San Francisco to water quality standards, the city doesn’t know what it needs to do beforehand. The example given involves California’s standard of no objectionable algae blooms but, as Ms. Steeley points out, algae blooms can be impacted by other sources of discharge. I’m not a marine biologist, but I believe other non-manmade factors, such as temperature, tides, and migrations, impact algae blooms as well. So how can San Francisco be held accountable for an algae bloom that was not completely within its control? And how can San Francisco be held accountable if the EPA doesn’t tell them what specifically needs to be done to prevent the bloom?

JUSTICE JACKSON: — isn’t EPA — I thought the statute allowed for “any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance established pursuant to any state law.”

MS. STEELEY: So —

JUSTICE JACKSON: So California has established certain water quality standards. Are those independently binding on the cities and municipalities in California?

MS. STEELEY: They are not binding. They are only binding as a permit limitation. And that’s the problem here, is that we don’t — they’re only binding —

JUSTICE JACKSON: Do they — do you have to have permits under state law so that they get bound — you get bound through the state permitting process then?

MS. STEELEY: The permit at issue here is issued by —

JUSTICE JACKSON: No, I understand. But I’m just —

MS. STEELEY: Yeah.

JUSTICE JACKSON: — I guess my — my big problem is that I’m trying to understand why you find these permit provisions so onerous or problematic when they seem to just incorporate standards that already exist under state law that you would have to follow anyway.

MS. STEELEY: The standards are not self-executing, so we don’t have to follow them anyway. They set the goals for the water body, but they’re not limitations on us themselves.

JUSTICE KAGAN: So —

MS, STEELEY: So they aren’t — they are not binding on us.

San Francisco v. EPA – Oral Arguments

Even the justices are confused by this quirky setup. The state sets a water quality standard, but it’s not enforceable and not self-executing, so a city like San Francisco isn’t held liable for contributing to its violation. The EPA has to issue a permit to San Francisco to discharge effluent (a surprisingly controversial term we will find used quite frequently during these arguments), and in that permit the EPA is supposed to tell San Francisco what they must do to meet California’s water quality standard. Seems like quite an opportunity for finger pointing.

JUSTICE KAGAN: — Ms. — Ms. Steeley, I mean, there are lots of different kinds of regulations in the world. Some people like some kinds; some people like other kinds. Some regulations are really prescriptive, do this, this, this, and this. And then, you know, some people hate those kinds of regulations. They’d rather have regulations that are less prescriptive, that say here’s the goal, you decide how to meet it. That gives a party more flexibility and so forth.

So, you know, some people, you know, it’s — there’s got to be something in this statute that tells you that the agency can’t decide to go the less prescriptive, more flexible “you decide how to meet it; this is the goal” route, and I don’t see anything in this statute that does that.

San Francisco v. EPA – Oral Arguments

Yes, there are different types of regulation schemes. While Justice Kagan focuses on people preferring different types of regulations, I tend to think more along different situations. When she comes to a question, I think she unintentionally brought up an important point. Is the EPA allowed to use any type of regulation they aren’t prohibited from issuing, or does the EPA have to be delegated the power to issue a specific type of regulation? Sadly, this question was not answered during oral arguments. Rather, Ms. Steeley focused on a point I think she needed to make for her argument to work.

First of all, San Francisco is not the only discharger or contributor to the water body. There are eight discharge points at issue in this permit.

JUSTICE SOTOMAYOR: Those are the point sources that it’s supposed to be —

MS. STEELEY: Sorry, no. So San Francisco has its own discharge points, and there are eight of them. One of them is — I will concede is fairly far out into the ocean. We are the only source for that one. But the other seven have many other contributors to the water body very close nearby. And if I can give you an example, just a couple weeks ago, there was a bacteria spike near one of those discharge points. It’s a point that we are not currently using, so we know we did not cause that spike, but someone else did.

Had we been contributing to the water, had we been discharging at the time, we would necessarily have been contributing to that condition and we would be subject to liability.

San Francisco v. EPA – Oral Arguments

Justice Sotomayor seemed to be missing the point. She kept stating the the EPA was setting water discharge standards, then twisting what Ms. Steeley was saying, as if San Francisco was trying to get the EPA to assign those limits differently. But Ms. Steeley kept pointing to the fact that not all of the contributions to the output that EPA wanted monitored was under San Francisco’s control. What Ms. Steeley describes would be like driving down the highway and being pulled over, cited, and fined not for your speed, but the overall speed of everyone on that stretch of highway.

JUSTICE KAGAN: Yeah, can I just piggyback on that if you’ll — if you’ll let me, Justice Sotomayor?

JUSTICE SOTOMAYOR: Yeah, sure.

JUSTICE KAGAN: Is — is, when I hear you speaking, I hear one of two things.

One is that to the extent that you have objections to particular ones of these water quality standards — they’re too confusing, they’re too vague, we can’t figure it out, how can you tell between us and other dischargers — I mean, that does seem like a classic arbitrary-and-capricious question. So you would go and make an arbitrary-and- capricious standard as to those particular standards that are in the permit.

I mean, the second way I hear you, honestly, is — is you’re making a policy argument to either the agency or to Congress. You’re making a policy argument to the agency, essentially: Don’t take advantage of your statutory authority in this way because it’s very confusing to us, the regulated party. Or you’re making a policy argument to Congress: Go fix this statute so that the EPA can’t do this.

But what I don’t hear you telling me is, like, what in the statute prevents the EPA from doing this.

San Francisco v. EPA – Oral Arguments

Justice Kagan brought up an interesting point. The idea that San Francisco could be fined for violating a discharge permit based on the actions of others is arbitrary and capricious. However, that is not the case San Francisco has brought. Rather they claim that the way EPA wrote their permit was not authorized by the law. Again, we see a justice apparently assume the EPA can write their permits any way they want unless prohibited by the law.

Justice Kavanaugh seemed to sum up San Francisco’s argument well.

JUSTICE KAVANAUGH: Okay. And the overarching problem, I think, but you haven’t gotten to this, so I’m going to give you — you know, in terms of how this all works is you don’t know what your obligations are ahead of time and yet you’re on the hook for millions of dollars and potential prison time even though you didn’t know what your obligations were ahead of time, which strikes at least me, I mean, as more — as definitely a policy problem but one that’s rooted in the statute. You don’t know what your obligations are and you can go to prison.

San Francisco v. EPA – Oral Arguments

How can the city be held liable for violating limits they are not made aware of ahead of time?

EPA’s Argument

The EPA, obviously, had a different point of view. Frederick Liu, Assistant to the Solicitor General, represented the EPA. He began his statement with a bit of legal slight-of-hand.

MR. LIU: Mr. Chief Justice, and may it please the Court:

San Francisco’s opening brief makes one and only one argument, that Section 1311(b)(1)(C) authorizes only effluent limitations. This Court, however, already rejected that argument in National Association of Manufacturers. And, in any event, the statutory text and history make clear that Section 1311(b)(1)(C) also authorizes other limitations. San — San Francisco is therefore wrong to argue that limitations like the ones challenged here are never okay.

San Francisco v. EPA – Oral Arguments

To understand the slight of hand, we need to look at the statute in question.

(C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter.

33 U.S.C. §1311(b)(1)(C)

Mr. Liu and several of the justices will spend a lot of time on this question of “any more stringent limitation” and whether or not any of those limitations are limited to effluence. Lost in much of these arguments is the fact that the law in question is part of §1311. Effluent limitations.

I was rather surprised by how much time both attorneys and the justices spent on what seems to me to be the simple point that the law they kept referring to covers effluent limitations.

Rather than pursue an individualized challenge to the limitations in this case, San Francisco has put before this Court only a facial challenge: That all limitations that prohibit discharges based on their effects on water quality are invalid on their face because they don’t fit the statutory definition of effluent limitation.

Because that argument can’t be squared with this Court’s precedents or the statute itself, this Court should affirm.

San Francisco v. EPA – Oral Arguments

So, in the EPA’s mind, San Francisco’s argument falls short. Notice how Mr. Liu says it cannot be squared with Supreme Court precedents, then with the statute. This shows just how twisted the legal system has become, placing the opinion of judges above the law.

But there’s another twist to this story.

I want to be clear about the sort of information that we’re missing that made it impossible for us to impose anything other than these generic limitations. It’s not information about the water. It’s information about San Francisco’s own sewer system.

We’re talking about, where do the flows go? What’s the conditions of the pipes and the pumping stations? How does the system respond to wet weather events? That’s the information that we’ve been lacking for the past 10 years and that we asked San Francisco to provide as part of the long-term control update.

Without that information, we’re basically flying blind as to how we’re going to tell exactly what San Francisco should do to protect water quality.

San Francisco v. EPA – Oral Arguments

Does anyone else find it convoluted that a city needs to report about their sewer system to a federal agency in order to comply with state water regulations? Why is the federal government tasked with enforcing state water standards? And why is the EPA acting as the architect for California water quality? But that’s not all.

CHIEF JUSTICE ROBERTS: The — I don’t understand — you know, the bad old days is when we had water quality standards, right, people didn’t know what they were supposed to do, how it was going to be allocated, sort of a problem with the — the comments, and they put in the permit system.

And I think the danger here is that you’re going back to the other system because it, one, gives more power to you because you don’t have to tell the people who are discharging what they have to do or not, you can sit back, and then — and also you don’t even have to allocate among many different polluters who’s responsible for — for what.

So what prevents you — I know you touched on a couple of things in response to Justice Thomas, but I’m not sure that was significant limitations from saying, as you’re doing here, we’re going to go with water quality standards because that’s maybe harder for the people with effluent, but it’s a lot easier for us?

San Francisco v. EPA – Oral Arguments

Apparently, when the Clean Water Act was first put in place, cities like San Francisco were given water quality standards to maintain by the EPA, but they didn’t know how they were supposed to do that. This is what led to the convoluted permit system currently in place. Chief Justice Roberts asked, does the permitting language merely go back to the water quality standard of the past, and is the EPA doing this to make their lives easier?

MR. LIU: No, it’s not easier for us. In our ideal world, we would have perfect information about how San Francisco’s system works, and based on that information, we would be telling San Francisco things like: Reroute flows from X to Y. Upgrade your pumping station at Sea Cliff. Increase the storage capacity of your Westside storage facility. We were unable to include limitations of that tailoring in this permit because San Francisco deprived us of the very information we would need to do that. So we don’t — We have no interest in putting in generic provisions like this when we have the information available to supply more tailored information — more tailored limitations. And that’s why — it’s precisely because it’s so much easier to enforce a more tailored limitation.

San Francisco v. EPA – Oral Arguments

Apparently, in EPA’s perfect world, they could micromanage San Francisco’s waste water system, telling them exactly what they needed to do, right down which sites needed what upgrades. Is anyone else thinking about Big Brother?

Justice Kavanaugh had an interesting exchange with Mr. Liu about the ex post facto aspects San Francisco was claiming.

JUSTICE KAVANAUGH: But the problem is you can go after an individual entity like the City of San Francisco based on the past, when they didn’t know what the relevant limitation on them was, and seek retroactively, without fair notice, huge penalties, including criminal punishment, based on something that was — they didn’t know what they could discharge or not discharge, correct? — I mean, a lot of what you’re talking about in response to the Chief Justice is here’s things that could help going forward. — You’re suing San Francisco separately for a lot of money based on a standard that they had no idea — you know, at least that’s the theory. — That’s the theory And your position — your position would allow that.

MR. LIU: I don’t — I don’t think so.

JUSTICE KAVANAUGH: Yes, it would.

MR. LIU: I mean — I mean, the Bayside complaint is Exhibit A for why what you said is not going to be true. The standards that are violated in those cases are numeric water quality criteria.

JUSTICE KAVANAUGH: The standards — the generic limitations contain water quality standards that you don’t know as an individual entity what you need to do to comply with that.

MR. LIU: You know, San Francisco has not pointed to any instance of that.

San Francisco v. EPA – Oral Arguments

Justice Kavanugh, and in fact San Francisco, is pointing to generic limitations, so when Mr. Liu points to a single instance that included “numeric water quality criteria,” it seemed to miss the point. If Mr. Liu is correct, and San Francisco has not pointed to a single generic limitation they needed to comply with, he might have a point. I haven’t read all of the case documents, so I’m not sure, and Justice Kavanaugh did not bring up an instance.

Conclusion

With all of this talk about effluence, you might consider this case quite a show. To me, there are a few points not focused on in the case that are worth considering.

First, did Congress have the Constitutional authority to tell the EPA to enforce state water quality standards? I cannot find anywhere in the Constitution where the United States was delegated the authority to enforce water quality standards or, for that matter, any environmental standards. So if we have a constitutionally sound judicial system, this whole case would have been thrown out. Not because San Francisco didn’t have a grievance against the federal government, but because the case they brought was based on an invalid law.

Second, why did San Francisco question the statutory power of the EPA, when most of their complaint seems to be that their permitting regulations are arbitrary and capricious?

Third and finally, yes, the details matter. But why did both attorneys, and the justices, ignore the detail that §1311(b)(1)(C) is part of §1311, which deals with effluent limitation? During oral arguments, there was much discussion about the fact that §1311(b)(1)(C) stated “any more stringent limitation,” and whether or not that means effluent limitations or any form of limitation. It seems to me if you’re reading a law about effluent limitations, all of it is going to be about effluent limitations unless otherwise stated.

I started my analysis thinking that San Francisco was right. After listening to oral arguments, I think the entire process is a giant pile of effluence. As far as the justices’ questions, I’m reminded of when Jesus confronted the Pharisees and stated they “strain out a gnat and swallow a camel!”

How California handles its water quality is their business. Placing a federal agency in the middle does nothing but add more bureaucracy to an already bureaucratic nightmare. Maybe that’s why the framers limited Congress to only making laws necessary and proper for executing the powers vested by the Constitution in the government of the United States.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S. Constitution, Article I, Section 8, Clause 18

Perhaps, if we kept Congress bound to that limit, we wouldn’t have such effluent-laden cases.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 13, 2024

• Catechism are used for religious instruction, but what about constitutional?
• Arthur J. Stansbury developed a catechism on the Constitution back in the early 1800s.
• This tool can help not only the young people it was designed for, but everyone learn the Constitution.

When most people think of catechisms, they think of religious training tools. However, catechisms have been used for training in many subjects in our history. I was recently introduced to the Elementary Catechism on the Constitution of the United States, by Arthur J. Stansbury. While I have not been through the entire catechism, what I have read showed me that this is an excellent teaching tool, not only for the young people whom it was intended to reach, but for adults and seniors as well.

Constitutional Education

We often bemoan the lack of a good education in civics and the Constitution the American education system provides. As I read Mr. Stansbury’s catechism, I realized this is not a new phenomenon. Mr. Stansbury published his catechism in 1828, explaining in the Preface:

That a people living under a free government which they have themselves originated should be well acquainted with the instrument which contains it, needs not to be proved.

Elementary Catechism on the Constitution of the United States.

Yes, it should be obvious that a people living under a free government they created should have more than a passing acquaintance with the document that created it. Yet today in America the Constitution is not taught in our primary education, our secondary education, or even in the higher education of law. Many people today believe that the Constitution is simply too difficult to read and understand without the higher education one obtains to be an attorney or judge. Mr. Stansbury pointed out that this excuse would not be enough to justify our lack of education.

Were the system, indeed, very cumbrous and extensive, running into minute detail, and hard to be retained in the memory, even this would be no good reason why pains should not be taken to understand and to imprint it upon the mind;

Elementary Catechism on the Constitution of the United States.

However, the Constitution is not a complicated document and it is not difficult to read. So what excuse do the American people have for being so ignorant of it?

but when its principles are simple, its features plain and obvious, and its brevity surpassing all example, it is certainly a most reprehensible negligence to remain in ignorance off it.—

Elementary Catechism on the Constitution of the United States.

Are the American people negligent in our education? Based on what I have observed of those who discuss the Constitution at all, I would have to say yes.

Constitutional Illiteracy

You may think that our constitutional illiteracy is a new phenomenon, but you would be wrong. A mere 40 years after its adoption, the citizens of this great country were generally ignorant of the Constitution.

Yet how small a portion of the citizens of this Republic have even a tolerable acquaintance with their own Constitution? It has appeared to the author of the following sheets that this culpable want of acquaintance with what is of such deep interest to us all, is to be traced to the omission of an important part of what ought to be an American education, viz. the study of the civil institutions of our country.

Elementary Catechism on the Constitution of the United States.

It seems our lack of civic education is not only a perennial problem, but a long-standing one as well.

We prize them, it is true, and are quite enough in the habit of boasting about them: would it not be well to teach their elements to those whose best inheritance they are?

Elementary Catechism on the Constitution of the United States.

The American education system used to be the best in the world. People would send their children to the United States, not just for a college education, but a primary and secondary one as well. Now the United States rates #13 in education worldwide. But it appears, even when our education system was the envy of the world, what we taught our children about civics and the Constitution was still lacking. If a free country is our inheritance, should we not teach the elements that make it so to those who will inherit it from us?

Fixing Our Constitutional Illiteracy

What can we do to improve this situation? Mr. Stansbury had an idea.

The following work has been prepared with a view to such an experiment. It is written expressly for the use of boys, and it has been the aim and effort of the writer to bring down the subject completely to a level with their capacity to understand it.

Elementary Catechism on the Constitution of the United States.

It is true that in 1827 such education was focused on boys, not girls, but the point here is that this catechism was designed for young people. It was not reserved to those few who could afford higher education, or even those for whom secondary education, such as high-school, was an expectation. This tool was written so the subject could be understood by 19th century boys. I would hope that Americans would be at least as capable of understanding the material today as they were almost two centuries ago.

Whether he has succeeded the trial must show. He has purposely avoided all abstruse questions, and has confined himself to a simple, common-sense explanation of each article.

Elementary Catechism on the Constitution of the United States.

Mr. Stansbury avoided the more abstruse (difficult to understand) questions, focusing on the basic, common-sense understanding of each part of the Constitution. That is yet another reason why our excuses for not being familiar with it rings hollow.

It is very possible some inaccuracies may be discovered; and should this be the case, they shall be carefully corrected, should the work be so far approved as to reach another edition.

Elementary Catechism on the Constitution of the United States.

Mr. Stansbury, like all of us, was human. That means it was possible for him to make mistakes. The fact that he recognized this, and made accommodations for future corrections, says a lot about both his character and our ability to trust what he is teaching.

In the mean time he cannot but indulge the hope, that in laying this little offering upon the altar of our country, he has rendered her an acceptable service.

Elementary Catechism on the Constitution of the United States.

This is another example of Mr. Stansbury’s apparent humility. He sees this catechism as an offering made to his country, with the hope that his service is acceptable to her. Would the American people also make an offering to their country? An offering of time and effort to become acquainted with the Constitution?

Catechism

There are several ways in which we can educate ourselves and our children. I endeavored to do so when I wrote my book, The Constitution Study, back on 2020. Mr. Stansbury used another technique: A catechism.

Most people think of catechism as a form of religious instruction. While many denominations use catechisms in their education, to catechize someone is:

to instruct systematically especially by questions, answers, and explanations and corrections

Catechize – Merriam-Webster Online Dictionary

A catechism is a question and answer form of eduction. But why use a catechism to learn about the Constitution? For the same reason many early church leaders used them, to help people memorize important facts.

As an educator, I learned early on that questions are powerful tools of the trade. We’ve all experienced questions when we’ve taken tests, but may not have realized their true power. When I was in high school, a teacher in a physics class asked a question. It was a yes or no question, meaning I had a 50/50 chance at getting the right answer, so I put my hand up. When the teacher pointed to me, I gave my answer, which was correct. Then the teacher asked me a follow-up question: “Why?” I was caught. I didn’t know why, I hadn’t even thought about why. It just seemed like the right answer so I gave it, but now I’m being asked to “prove my work.” While I stood there, struggling to figure out why, other students raised their hands to answer, but the teach said, “Wait, give him a chance.” In a minute or two, which seemed like forever for a teenage boy standing in front of a class, I gave my answer, and it too was correct. Here I am, more than 40 years later, and I not only remember that class, but the lesson I learned which had nothing to do with physics.

Yes, questions can explore people’s knowledge. This is what happened when my teacher asked the yes or no question. However, questions can also open us up to examine our answers, our assumptions, and the very basis for what we believe to be true. This was the power my teacher used when he asked me “Why?” Similarly, a catechism asks questions. Some of those questions are a simple test of knowledge, like when Mr. Stanton’s catechism of the Constitution asks:

Question. In what country do you live ?
Answer. In the United States of America.

Elementary Catechism on the Constitution of the United States.

It is a simple test of a person’s knowledge, of rote memorization, though a good catechism can do more.

1. Why is this country called the United States?
   A. Because it is made up of a number of States which were once separate, but afterwards agreed to unite together.
2. What do you mean by a State?
   A. I mean any district of country whose people are all under one government.

Elementary Catechism on the Constitution of the United States.

By using a question and answer format, the catechism is meant to educate the student. Something about that format also assists in memorization. I think the most powerful feature of catechism is the personalization of the information. Sure, at first you are given the answer, but do you agree with it? Is there a point to be argued? Also, since catechisms generally go from simpler to more complex questions and answers, the student has the ability to build their knowledge not in the abstract, but in the context that has already been established in the catechesis.

1. Is some government necessary in every country?
   A. Certainly; without it nobody would be safe: not only our property, but our lives would be in danger.
2. Cannot all the people of a country govern themselves?
   A. If every man was perfectly virtuous, and knew what would be best for himself and others, they might. But this is far from being the case; and therefore the people of every country are and must be governed.
3. How is this done?
   A. Laws are made which all must obey; whoever disobeys them is punished.

Elementary Catechism on the Constitution of the United States.

Do you see how idea is built upon idea, precept upon precept? That’s one of the features of Mr. Stansbury’s catechism that I find so beneficial.

Conclusion

I did not know about the Elementary Catechism on the Constitution of the United States when I was originally studying the document, yet I still find it helpful. Some of the questions forced me to examine my understanding of the Constitution, and make sure I could justify my position. For example:

1. Who is to determine whether any law is contrary to the Constitution or not, the people themselves
   A. No: but certain persons whom they have appointed, [called Judges of the Supreme Court of the United States.]

Elementary Catechism on the Constitution of the United States.

This answer is only partially correct. No, the people themselves are not the arbiters of what is constitutional, but the justices of the Supreme Court have not been delegated that power either. Since that power is not prohibited by the Constitution to the states, they retain the power to determine if a law is contrary to the Constitution.

People learn in different ways. Some prefer reading books while others watch videos. Some prefer more academic instruction, while others like a more plain spoken approach. Whether you are a new student of the Constitution or a long-time one, whether an attorney, judge, or just a plain everyday American citizen, I recommend spending some time with the Elementary Catechism on the Constitution of the United States. As the supreme law of the land (Article VI, Clause 2), it is very useful to know what trumps the acts of our governments. Or, as Mr. Stansbury put it.

That a people living under a free government which they have themselves originated should be well acquainted with the instrument which contains it, needs not to be proved.

Elementary Catechism on the Constitution of the United States.

We claim to be living under a free government. Should we not be well acquainted with the Constitution that created it?

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 8, 2024

• Do you try to get out of jury duty?
• Have you considered how important jury duty is?
• What would America be like if people put as much effort into understanding jury duty as they do getting out of it?

Most of us have had the experience of picking up the mail, only to get that small pit in our stomach. Maybe we utter a curse or two and immediately begin thinking of ways to get out of it. The piece of mail that has caused these reactions is a jury summons. Almost no one looks forward to jury duty, and the efforts to get out of it are legendary. Which makes me wonder: If We the People put as much effort into understanding jury duty as we did trying to get out of it, would America be a better nation?

Like most Americans, most of my life I dreaded even the idea of jury duty. It’s disruptive, inconvenient, and generally something people avoid for a reason. That is, until I started studying the Constitution. That was when I realized that jury duty is probably the second most important civic duty citizens have. How can that be? Let’s start with a little history.

Declaration of Independence

Most Americans know that the colonies declared independence from Great Britain because of the way they were being treated. While most schools focus on the issue of taxation without representation, there were 27 specific grievances listed in the Declaration of Independence. Number 9 is:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

Declaration of Independence

This means that the corruption of the judiciary was well ahead of taxation without representation, which came in at number 17. One of the questions the framers of the Constitution had to deal with was how do we keep federal judges, who after all are government employees, appointed by politicians, and paid out of the federal treasury, from biasing their decisions toward their government masters? The answer did not come until 1791 with the ratification of the ratification of the Bill of Rights, which included the Due Process Amendments.

Right to a Jury

Within the Bill of Rights, the Fourth through Eighth Amendments are known as the Due Process Amendments. This is because they protect a person’s right to due process, which is defined as:

An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

Due Process: The Free Legal Dictionary

That means that half of the amendments in the Bill of Rights are designed to make sure the government, including the judicial branch, protects your rights as an individual. And of those five Due Process Amendments, three of them protect your right to a jury.

A Grand Jury

We start with the Fifth Amendment and its protection of your right to a grand jury.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,

U.S. Constitution, Amendment V

While there are exceptions for the military, including the militia when in service to the United States, you cannot be tried for a capital offense, or otherwise infamous crime (felony), until a grand jury says so. The Free Legal Dictionary defines a grand jury as:

A jury convened to determine if there is sufficient evidence to warrant the indictment of a suspected offender. A federal grand jury consists of between 16 and 23 persons and is required by the Fifth Amendment to the US Constitution before a person can be indicted for a serious criminal offense under federal law.

Grand Jury: The Free Legal Dictionary

This definition focuses on a federal grand jury, most likely based on the legal fiction called the Incorporation Doctrine, made up by the Supreme Court in the 1833 case Barron v. Baltimore. However, since the Constitution, as the supreme law of the land, states that no person shall be held to answer for such crimes except for a presentment or indictment of a grand jury, that supersedes the erroneous decision of the court.

Unlike a petit jury, a grand jury not only has more members, but a very different task. Their job is not to try the case, but to determine if there is sufficient evidence to indict the accused. Because of the task at hand, a grand jury is not an adversarial event. Only the prosecution is present and allowed to provide evidence. No counter-point is given and there is no access to any evidence other than what the prosecutor brings. For that reason, grand juries tend to issue indictments in most cases. This has led to the saying “A good prosecutor can get a grand jury to indict a ham sandwich.” After all, the process is completely one sided, and the defense is not allowed to participate. In this country, and contrary to what many talking heads imply, a person is considered innocent until proven guilty. While an indictment is a major decision, it is not, in any way shape or form, proof that someone is guilty. That is the role of the petit jury.

A Petit Jury

The role of a petit jury is quite different from that of the grand jury.

A body of persons selected to decide a verdict in a legal case, based upon the evidence presented, after being given instructions on the applicable law. Also called petit jury, trial jury.

Jury: The Free Legal Dictionary

Unlike a grand jury, a petit jury, or trial jury, is known as the trier of facts. Their job is to look at the facts of a case and ultimately render a verdict. Yes, the judge will give instructions on the applicable law, but ultimately, the fate of the case rests in the hands of those men and women on the jury. While the law is important, it is up to the jury to seek justice for both parties in the case. This is why the Bill of Rights protects a person’s right to a jury trial in both criminal and civil cases.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed

U.S. Constitution, Amendment VI

If you are accused of a crime, you have the right to a trial. Said trial must not only be speedy and public, but by an impartial jury made up of people where the crime was committed. Notice, the accused is not tried by a judge or the prosecutor, but by the jury. The prosecution and the defense both bring forth their evidence, the judge oversees the process to make sure it’s fair and impartial, but it’s the jury that is trying the case, testing the facts, and ultimately making the decision about the accused’s guilt, though not all cases are criminal.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,

U.S. Constitution, Amendment VII

Should you be involved in a lawsuit, whether you are the plaintiff or the respondent, you have a right to a trial by jury as long as the value in question is greater than $20. This means that if you sue someone, or are sued by someone, you have a right to have that case heard and determined not by a judge, but by a jury. There is one other point about juries in the Seventh Amendment:

and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

U.S. Constitution, Amendment VII

That means, win or lose, there is limited opportunity to re-examine the facts tried by a jury. That’s not to say there aren’t any ways to appeal a jury decision, but they are limited by the rules of common law. What is common law? Most people define common law as:

Law established by court decisions rather than by statutes enacted by legislatures.

Common Law: The Free Legal Dictionary

There’s a fundamental flaw with that sense of the phrase, at least in the United States. The Constitution states:

All legislative Powers herein granted shall be vested in a Congress of the United States

U.S. Constitution, Article I, Section 1

All legislative, all law making power, is vested in Congress, so it’s impossible for a court to establish law. Which means the second sense of the phrase ‘common law’ is more applicable here in the United States.

The law of England adopted by its territories and colonies, including the United States at the time of its formation.

Common Law: The Free Legal Dictionary

The basis of English Common Law was custom and court decisions. Which means the rules by which a jury decision in a civil case can be appealed are found in that common law, and that is the limit of its power.

Second Most Important Civic Duty

Recently, I wrote about the most important civic duty we have as American citizens, the duty to vote. You may be asking yourself, why should I consider jury duty the second most important civic duty?

If we look at the Preamble to the Constitution, we find the second reason we ordained that document was to establish justice. How can we establish justice if government is allowed to accuse and try without any checks or balances? Juries are meant to be that check and balance on the judicial branch. A legislature can pass a law, the executive branch can charge someone with violating that law, but with rare exceptions, a court cannot try the facts; only a group of American citizens can.

I was summoned for jury duty once. While waiting my turn to answer questions from the attorneys, a gentlemen before me said he could not convict someone because the bible said “Judge not, lest ye be judged.” I really dislike it when people only quote part of Scripture to get what they want. I sat behind this man thinking, “Quote the rest of the phrase.”

Judge not, that you be not judged. For with what judgment you judge, you will be judged; and with the measure you use, it will be measured back to you.

Matthew 7:1-2 (NKJV)

I’ve always wondered if that man were accused of a crime, would he want to be judged the same way he had judged in that case? Would he be happy with being judged by people who could not be bothered to care about his case? Because the right of the accused to a jury trial, the right in a civil case to a jury trial, is about due process, protecting the rights of the individual accused. American’s aversion to this civic responsibility has become so pronounced there’s even a joke about it. “You’re not judged by a jury of your peers, but by twelve people who couldn’t get out of jury duty.”

I know answering that jury summons is difficult. It’s even worse if you get called to serve. Most of us have lives that demand most of our time. Who will watch the children? Can I get time off work? And, depending on the state you live in, the stipend you receive may not even cover your pay for an hour of work. Then there’s the responsibility of sitting in judgment of another human being. It’s an awesome responsibility, so I can understand why so many want to shirk it. So why should you give up your time, effort, and money to serve on a jury? Because one day, it may be you sitting at the defendants table. Or maybe a friend or family member will be sitting there with their life in the balance. Imagine sitting there yourself. Maybe you’ve been arrested, or served a lawsuit. You may be looking at jail time or financial ruin. You’ve also had to take time away off, just like those jurors, but they don’t have any skin in the outcome of this case like you do. Now imagine looking over at those twelve jurors. Do you want to see twelve faces who couldn’t care less, or worse, faces that are angry about being there? Do you want to see frustration or concern, boredom or engagement? As Jesus said in Matthew 7, you will be judged as you have judged others. Think of that the next time that jury summons appears in the mail.

Conclusion

There are many things in life that we do not enjoy, but we do them anyway. Why? Because it is our responsibility, our duty, and the price of living in a free country. We go to work, pay the bills, and do chores around the house, not because we like to, but because we need to. Yet here we have the opportunity to seek justice for another human being and most Americans see it as an imposition rather than an opportunity.

If you’ve seen the movie 12 Angry Men, you’ve seen the importance not only of jury duty, but the power a single member can wield. As the jury begins their deliberations, it’s quite apparent that they are ready to quickly convict the accused. That is all except one man. As the deliberations go on, the frustrated jurors just want to go home. One by one, the single hold-out shows, by the evidence provided, that the accused is not guilty. What if that single individual had been excused? What if they had found a way to avoid jury duty? Then the accused would most likely have been put to death for a crime he did not commit. That’s an awesome responsibility, one that is rare, even among juries.

If We the People are not willing to sit in judgment of our fellow man, who will? Wouldn’t it be the judge? The government employee acting as judge, jury, and possibly executioner? Would that be a free country? Not according to those 56 men who signed the Declaration of Independence. They recognized that freedom is not free. While they were willing to sacrifice their lives, fortunes, and sacred honor to the cause of liberty, shouldn’t you be willing to sacrifice a few hours or days of your lives? Isn’t the right to trial by jury worth giving up some of our fortune? Do we not want people honor-bound to establish justice, even if it’s an inconvenient and awesome responsibility to hold? To my mind, the alternative is a horror not worth considering.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 31, 2024

• Are you as sick and tired of the constant drum beat of being told how important this elect is?
• Tired of constantly being harassed to register and vote?
• Have you take the time to consider just how much power you can wield with your vote?

Election day is just one week away. I’m sure many of you, like me, are ready for this election season to be over. For more than a year we’ve been hammered, badgered, and generally harangued with the idea of how important it is to vote. However, it has been my experience that the reasons given for our participation in the election process was more about getting their candidate elected or, more often, preventing their opponent from winning, than what actually makes voting so important. So as the day of reckoning for this crazy election cycle approaches, let’s take some time and look at the importance of voting without all of the political party rhetoric.

Why Americans Vote

Contrary to what you’ve heard from politicians and the media, the Several States and the United States are all republics. But what does this mean?

[T]he constitutions of most of our states assert that all power is inherent in the people;

Thomas Jefferson – Letter to John Cartwright, 5 June 1824

In this country power does not come from government. Not from the President, not from Congress, not even from the Supreme Court. All power is inherent in the people as an inseparable part of our being. And while the direct exercise of this power may work in small groups like families, it quickly breaks down when applied to anything larger. This is why we create governments, to exercise our power collectively. How do we create governments and how do we structure them? In this country, we create governments in two ways: Sovereign governments are created by constitutions, and non-sovereign governments (like counties, cities and other municipal organizations), are created by charter. In either case, a government’s forming document not only creates the government, but determines its form and powers. Again, here in the United States, all sovereign governments are republics:

The United States shall guarantee to every State in this Union a Republican Form of Government,

U.S. Constitution, Article IV, Section 4

Republican Form of Government

But what is a republican form of government and what makes it so special?

A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people.

Republic: Webster’s 1828 Dictionary

To start with, a republican form of government recognizes not only that the power is inherent in the people, but that for them to exercise it directly would be problematic. Therefore, in a republic the people vest or lodge their power in people they hire to represent them in government. They choose who they wish to hire collectively by voting. But why is voting so important?

First we need to understand that, while all power is inherent in the people, they rarely agree on how to use it. Even when they agree on a goal they wish to reach, the people cannot seem to agree on how to achieve that goal. This is why democracies, where the people exercise their sovereign powers directly, are so chaotic. As John Adams wrote:

“Democracy… while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.”

John Adams, letter to John Taylor, 1814

To separate the process of policy making from the emotions of the masses, we have republics. Now the people can choose those among them whom they trust, and empower them to exercise their inherent power in their name. Emotions may still run rampant about the candidates, but once chosen, it is hoped that the representatives can rise above them. Also, by using representatives to exercise sovereign power, it’s hoped they will take the time to consider and analyze prospective legislation and policies, allowing the rest of us to focus on our lives and families. However, there is nothing in the structure of a republic to prevent the representatives from becoming as emotionally driven as the people as a whole. This is why both the states and the United States are not just republics, but constitutional republics.

Constitutional Republic

Constitutional republics are a variation of a republic where the powers of representatives of the people are restricted by a constitution. This constitution acts as the supreme or fundamental law, establishing limits and boundaries to what the representatives can do. We see this in both the Supremacy Clause and the Tenth Amendment.

This 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2 – The Supremacy Clause

The Supremacy Clause establishes the Constitution as the supreme law of the land rather than the acts of the people’s representatives. Only laws of the United States made pursuant (following) that Constitution are also considered supreme. Furthermore, every judge in every state is bound to this, regardless of what any state may have in their laws or constitution. Furthermore, the Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

This further establishes that the powers of the United States are limited to those delegated to it by the Constitution. This means that the representatives of the people cannot act beyond the powers delegated to the government they serve.

The power to choose who will exercise power in your name is so fundamental not only to our governments, but to our way of life, that it is rightly called our civic duty. I would take it a step further and state it is the first and primary civic duty of all American citizens.

Why People Don’t Vote

In the face of all of this, why do so many people not vote? Even in Presidential elections, which garner the most attention and participation, only about two-thirds of eligible voters actually cast ballots. In non-Presidential elections, the rate drops to 40% or less. According to the Census Bureau, only about 70% of those eligible to vote in the 2022 election had actually registered to vote. With all that is at stake, why do so few American actually participate? I have a few theories why different people to not vote.

I believe a major reason why people do not vote is the fact that civics is no longer taught in schools. And when it was taught, voting was shown to be a duty, but not why it’s so important. This seems to be the root of why so many people do not see hiring representatives as being very important. Add to that how often those representatives seem to ignore many of those they claim to represent, and you can understand why people discount the value of voting. Even worse, since most Americans were taught they were choosing leaders rather are hiring employees, they see themselves as serving those in government rather than what the framers of our government established: That they are public servants. If We the People were to come to the knowledge that we are hiring people to act in our name, perhaps we would start treating them more like the employees they are, and value our say in who we hire.

Another reason I hear people say they don’t vote is that they don’t believe their vote matters. I believe this comes from a couple of different misunderstandings about our governments. Yes, a single vote in a sea of over 200 million voters doesn’t seem to make much different. This comes from the fact that so many people are working so hard to focus our attention on a single race: The one for President. However, there may be dozens of races on the ballot that are far more important to your everyday life than who sits at 1600 Pennsylvania Ave, at least as far as the Constitution states. Those are members of Congress, your government and state legislature, and in many states, your judges. Don’t forget county and city races as well. All of these have a greater impact on your day to day life than the President, not only because they are local, but because they can help protect you from the unconstitutional actions of the President, Congress, and yes, even the federal courts. The other reason so many people think their votes don’t matter is how our state election laws place a premium on the two major political parties when it comes to who appears on the ballot. How often have you been told you have to choose the lesser of two evils? Do you know what you get when you choose the lesser of two evils? You get evil! What if our state election laws allowed someone other than the political parties’ chosen champions to appear on the ballot, without making them jump through obstacles not placed before the favored parties. So how are those state laws going to be changed unless we hire representatives who will actually work to change them?

I believe a major reason why people don’t vote is apathy. More and more of the American people have become too lazy to do for themselves. They want all of the benefits of living in a constitutional republic without any of the responsibilities. They are more than willing to sit back and enjoy the blessing of liberty without lifting even a finger to help secure them. Apathy and sloth are probably the chief reason so many people do not vote.

I did hear one reason why some people won’t even register to vote that surprised me: They didn’t want to be called for jury duty. Jury candidates are chosen from databases of citizens, as I understand it, primarily from voter registration databases. This is because you must be a citizen to be on a jury, and since being a citizen is a legal requirement to vote in all 50 states, registered voters are a good pool of people you can reasonably assume are citizens. This topic is so important that I’m writing an entire article on the subject.

Why People Should Vote

With all of the reasons people have not to vote, the next logical question is, why should they? The answer is simple: If the people do not vote, then we are no longer a republic. As the number of people who actually cast ballots shrink, the United States becomes more and more an oligarchy, where a select few make decisions for everyone. And if that isn’t enough to get you to vote, consider this, too. Look around at the other people in your state and your district, the other people who do vote. Do you want to leave the future of your rights, your liberty, not to mention the rights and liberty of your family, in the hands of those people?

Sure, your preferred candidate for President may not win, but what about Governor, legislator, judge, or even dog catcher? How are any of them supposed to win if the people who agree with them can’t be bothered to vote? Remember, elections are how we hire people to represent us, to exercise our sovereign power in our name. Don’t you want some say in who that is? Consider the words of James A Garfield:

[N]ow more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature …

A Century of Congress, p.486 – James A Garfield

That means that the character of Congress, that branch of the federal government whose approval rating rarely tops 20%, is who has borrowed the United States into de facto bankruptcy. If that group made up of politicians whose most famous trait is their ability to lie, their character is, at least in part, your fault. That’s true whether you vote or not. And what is true for Congress is true of every elected office. We the People are responsible for their character, and to be blunt, the American people have done a horrendous job. Just look at what else Mr. Garfield said almost 150 years ago:

Now, as always, Congress represents the prevailing opinions and political aspirations of the people. The wildest delusions of paper money, the crudest theories of taxation, the passions and prejudices that find expression in the Senate and House, were first believed and discussed at the firesides of the people, on the corners of the streets, and in the caucuses and conventions of the political parties.

A Century of Congress, p.486 – James A Garfield

When We the People step aside, when we refuse to do more than complain about our governments, we leave no one else to establish the policies, opinions, and aspirations of this country but the political parties. By walking away from our duty to include our opinions and aspirations in the election process, we have not only failed our fellow Americans, we have been derelict in our duties.

Sure, our candidates don’t always win, but does that mean we give up? After 17 years trying to pass legislation banning the slave trade in America, John Quincy Adams was asked why he kept going after all those years of failure. His answer should be our siren song today: “Duty is ours. Results are God’s.”

How we Choose to Vote

As I pointed out at the beginning, much is said to encourage, coerce, and even browbeat, in the effort to get people to bother to register and vote. However, little is ever said about how we decide who to vote for. Congress is not ignorant, reckless, and corrupt because people don’t vote, but because of how those of us who do vote decide who to vote for.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

U.S. Constitution, Article VI, Clause 3

Each and every officer of both your state and the United States is required to swear or affirm that they will support the Constitution of the United States. When was the last time you asked them to prove it? When was the last time you checked to see if those exercising your power, in your name, actually bothered to fulfill their oath of office? And let’s be honest, how many of you would even know if one of your representatives were supporting the Constitution or not? Perhaps Congress, and the rest of our governments for that matter, are ignorant, reckless, and corrupt because We the People are ignorant, reckless and corrupt. After all, if you are ignorant of the power and limitation of a hired employee, how can you hold them accountable? If you are so reckless with your vote to waste it based on race, sex, political party, or just good looks, why wouldn’t they be just as reckless with the powers you have entrusted them with? Since it appears most Americans seem to vote based on who is going to give them the most filthy lucre stolen from the American people, I would say that qualifies us as being corrupt.

Conclusion

As James A. Garfield said, if we don’t like the character of our Congress, it’s our fault. If we are embarrassed by the person holding the office of President, it’s our fault. And the same can be said for each and every elected office in this nation. If you think you can escape responsibility by not participating, then you are not only a fool, but a deserter.

The republic for which our flag stands is crumbling under the weight of collectivism, tyranny, and elitism, in no small part because the people who believe in individual rights, in liberty and justice for all, cannot be bothered to go to the polls every couple of years to vote. Governments have made registering to vote so simple all you have to do is check a box when you get or renew your drivers license, yet still millions of American citizens who are eligible to vote cannot be bothered. Each state has extended early voting to make it easier for people to work it into their busy schedules. And for those who are still unable to make those schedules, there is absentee voting. Yet still we can expect one-third of those eligible voters to abandon their duty and turn not only their future, but the future of their fellow Americans, over to others. How can we call ourselves the land of the free, if a third to half of us are not brave enough to cast our vote?

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 25, 2024

• Law enforcement has to have probable cause to get an arrest warrant, right?
• Can someone sue for malicious prosecution if there was not probable cause for all of the charges in a warrant?
• Are malicious prosecution and a Fourth Amendment violation mutually exclusive?

How far can law enforcement go when it comes to arresting someone? For example, if police have probable cause to charge you with a misdemeanor, how far can they “bootstrap” that charge into something more serious? That appears to be the question in the case Chiaverini v. City Of Napoleon, Ohio. While dealing with a misdemeanor situation, Mr. Chiaverini was subsequently charged not only with another misdemeanor, but a felony as well. One little problem: The police had no probable cause for the felony.

Background

Dealing with law enforcement can be a stressful situation. Mr. Chiaverini may have felt that he was right to not hand over property he had paid for to those claiming it was theirs. However, it may have been more stressful when a couple of police officers showed up.

This dispute began with a set of peculiar interactions between a jewelry store owner and police officers in Napoleon, Ohio. … The jeweler, Jascha Chiaverini, bought a ring for $45 from a (petty) jewel thief. The ring’s rightful owners found out about the sale, and asked Chiaverini to return their property. Chiaverini said no, so the owners contacted the police. Two officers, on a later visit to the store, directed Chiaverini to surrender the ring to its owners. But Chiaverini refused their request too, saying that it contradicted a letter he had just received from the police department telling him to retain the ring as evidence. And when repeating his refusal to another officer the next day, Chiaverini suggested (for reasons unclear) that he was operating his store without a license. The result of that unprofitable exchange was that the police turned their attention from the original theft to Chiaverini’s business.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

This started as a dispute over who owned a ring and how that property should be handled. I’m not sure why Mr. Chiaverini mentioned he was operating his store without a license. Perhaps that’s an object lesson about chatting with law enforcement, something I do not do. As a result of that utterance, the police stopped focusing on the original theft and turned their eyes to Mr. Chiaverini’s business.

Soon afterward, the officers launched a criminal proceeding against Chiaverini in municipal court. They filed three complaints, each charging him with a separate offense. Two were misdemeanors: receiving stolen property and dealing in precious metals without a license. The third was a felony: money laundering.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

After a criminal investigation three complaints were filed against Mr. Chiaverini. First, receiving stolen property, a misdemeanor related to the original dispute. Second, dealing in precious metals without a license, another misdemeanor which logically came from Mr. Chiaverini’s utterance about his business. Last, and not only most serious, but most important, felony money laundering.

To support their accompanying application for an arrest warrant, the officers submitted an affidavit making the case for probable cause on all three charges, but focusing on the felony. … For that charge to succeed, Chiaverini must have known when he bought the ring that the transaction involved the proceeds of unlawful activity.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Since a warrant requires probable cause, the application for an arrest warrant included an affidavit. This is required by the Fourth Amendment:

and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Constitution, Amendment IV

The warrant requires an oath or affirmation that the probable cause is true. So what was in the affidavit the police used to get the arrest warrant?

In support of that element, the officers averred that Chiaverini always suspected the ring was stolen. The judge issued the requested warrant, and the officers arrested Chiaverini. He remained in custody for three days, until his arraignment.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

The officers averred (claimed) that Chiaverini always suspected the ring was stolen. This was a necessary component of the money laundering charge. But how did the officers know that Mr. Chiaverini suspected the ring was stolen? The details matter, especially in a criminal case; suspecting that something is stolen isn’t the same as knowing it. Based on that affidavit, the judge issued the arrest warrant, the officers arrested Mr. Chiaverini, who then spent three days in jail awaiting arraignment.

At a later preliminary hearing, the judge heard testimony about the evidence supporting the officers’ probable-cause allegations. … The officers maintained that Chiaverini had admitted in their interview to suspecting the ring was stolen; Chiaverini denied making any such statement.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

So it turns out that when it came to admitting that Mr. Chiaverini knowing the ring was stolen, it was the word of the officers versus Mr. Chiaverini. Now the officers did have to swear or affirm under penalty of perjury that their testimony was truthful, but does the word of a couple of officers, without any other evidence, rise to the level of probable cause? In fact, isn’t their assertion that Mr. Chiaverini “admitted” something hearsay? Shouldn’t this interview have been recorded, meaning there was a record of Mr. Chiaverini’s admission?

At the hearing’s conclusion, the judge again found probable cause, and set the three charges for trial.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

As flimsy as this affidavit is, the hearing judge found probable cause and sent the case to trial. However, the county prosecutors seemed less than enthused.

The county prosecutors, though, decided that they had higher priorities. They failed to present the case to a grand jury in the required time. The court therefore dismissed the charges.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

In order to indict Mr. Chiaverini for the felony, the case had to be presented to a grand jury for indictment. However, the country prosecutors didn’t bother. When the time limit for the prosecutors to file expired, the judge dismissed the charges.

Malicious Prosecution

Which brings up the question of how Mr. Chiaverini was treated during all of this.

But Chiaverini decided not to let matters lie. After all, he had been arrested and held for three days, he thought unjustifiably. So he sued the officers under §1983, alleging what is known as a Fourth Amendment claim for malicious prosecution.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

This is where things get a little fuzzy for me. Is this a malicious prosecution case or an unreasonable seizure case? Then I did some research on the legal definition of malicious prosecution.

An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice.

Malicious Prosecution – The Free Legal Dictionary

So there is a relationship between malicious prosecution and Fourth Amendment protections against unreasonable seizure, since both malicious prosecution and an unreasonable arrest warrant both lack probable cause.

To prevail on that claim, he had to show (among other things) that the officers brought criminal charges against him without probable cause.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Probable Cause by Association

Let’s start with the fact that the police apparently had probable cause on two of the three charges: The two misdemeanors. On the other hand, Mr. Chiaverini focused on the felony charge, which was the focus of the officers.

In addressing that issue, he gave special attention to the felony charge for money laundering. According to Chiaverini, the officers lacked probable cause for that charge for two reasons. First, they had no reason to think he knew the ring was stolen; indeed, he said, their claim that he had admitted as much was an out-and-out lie. And second, they could not show—as, in his view, Ohio law required—that the ring was worth more than $1,000; its value was far less, more in line with its $45 purchase price. So Chiaverini concluded that his suit satisfied the “without probable cause” element of a Fourth Amendment malicious prosecution claim.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Mr. Chiaverini’s first point is easy enough: Why did the police officers think Mr. Chiaverini knew beforehand that the ring was stolen? The second point is a little tricker. Mr. Chiaverini claims that the value of the ring is far below the minimum value required by law. Mr. Chiaverini claims the value of the ring is closer to the $45 he paid for it than the $1,000 minimum the law required. While I am no expert, the only relevant law I could find was Title 13, Section 1315.55 of the Ohio Revised Code:

(4) No person shall conduct or structure or attempt to conduct or structure a transaction that involves the proceeds of corrupt activity that is of a value greater than ten thousand dollars if the person knows or has reasonable cause to know that the transaction involves the proceeds of corrupt activity.

13 Ohio Revised Code §1315.55

There may be other statues I am unaware of, but it certainly seems that the minimum dollar value far exceeds the value of the ring. This leaves us with the heart of the case: Does probable cause for one crime justify the seizure for any other allegations, regardless of whether or not there is probable cause for them?

After the District Court granted summary judgment to the officers, the Court of Appeals for the Sixth Circuit affirmed. It did so without addressing either of Chiaverini’s arguments about the felony charge’s basis. In the Sixth Circuit’s view, there was clearly probable cause to support the two misdemeanor charges the officers had filed. … And because that was true, the court thought, the validity of the felony charge did not matter. “So long as probable cause supports at least one charge against Chiaverini (like his receipt-of-stolen-property violation),” then his malicious-prosecution claim “based on other charges (like his money-laundering charge) also fail[s].” … Or said another way, a single valid charge in a proceeding would insulate officers from a Fourth Amendment malicious-prosecution claim relating to any other charges, no matter how baseless.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

I can see the logic of the Sixth Circuit until we consider what happened to Mr. Chiaverini. Yes, he was arrested, which would have happened with or without the money laundering charge. However, he also spent three days in jail awaiting arraignment. Would that have happened for only misdemeanor charges? What about bail? Would his bail have been as high without a felony charge on the list? Apparently, I was not the only one to think this way.

In taking that position, the Sixth Circuit stepped out on its own. Three other Courts of Appeals have held that the presence of probable cause for one charge does not automatically defeat a Fourth Amendment malicious-prosecution claim alleging the absence of probable cause for another charge.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

The Dissent

Not everyone on the Supreme Court agreed with the decision. While Justice Kagan was joined by Justices Roberts, Sotomayor, Kavanaugh, Barrett, and Jackson, Justices Thomas and Gorsuch both filed dissents, and Justice Alito joined with Justice Thomas. For this article, I will focus on Thomas’ dissent.

Jascha Chiaverini sued several city officials for damages under 42 U. S. C. §1983. He alleged that they violated his Fourth Amendment rights by subjecting him to a malicious prosecution. I continue to adhere to my belief that a “malicious prosecution claim cannot be based on the Fourth Amendment.” … Accordingly, I would affirm the dismissal of Chiaverini’s claim.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Justice Thomas believes that a malicious prosecution claim cannot be based on the Fourth Amendment. I must admit I was confused at first, until I looked up the definition of malicious prosecution. As I’ve already quoted, the Free Legal Dictionary defines malicious prosecution is an action against someone for an unsuccessful proceeding that was started without probable cause.

To raise a successful claim under §1983, a plaintiff must allege the deprivation of “rights, privileges, or immunities secured” to him by the Constitution. … In this case, Chiaverini claims that he was seized without probable cause in violation of the Fourth Amendment.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Is it that Mr. Chiaverini was seized without probable cause or that his seizure was extended or enhanced because of a warrant issued without probable cause?

A malicious-prosecution claim bears little resemblance to an unreasonable seizure under the Fourth Amendment. Consider what is required to establish a claim of malicious prosecution. A plaintiff must show that “(i) the suit or proceeding was ‘instituted without any probable cause’; (ii) the ‘motive in instituting’ the suit ‘was malicious,’ . . . ; and (iii) the prosecution ‘terminated in the acquittal or discharge of the accused.’” … These elements have no overlap with what is required to establish a Fourth Amendment seizure violation.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Did Justice Thomas read his own dissent? The Fourth Amendment clearly states that “no Warrants shall issue, but upon probable cause,” and that a malicious prosecution case also requires that proceeding without probable cause. How does that not overlap? The case against Mr. Chiaverini was discharged, so the only element of a malicious prosecution left is to ask if the charge was malicious?

Malicious prosecution is therefore not an appropriate tort analog for a §1983 claim alleging a seizure in violation of the Fourth Amendment.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

Again, I’m confused. A malicious prosecution case requires that the case be brought without probable cause, which is a prima facie violation of the Fourth Amendment. In a case where probable cause for one of the charges was not established, that involves a deprivation of rights under color of law, which is the purpose of §1983.

The Court’s decision to forge ahead with combining the malicious-prosecution and Fourth Amendment frameworks will inevitably create confusion. As I have explained, an unreasonable seizure under the Fourth Amendment requires a seizure; a malicious-prosecution claim does not.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

It appears Justices Thomas, Alito, and I believe Gorsuch, have a preconceived notion that malicious prosecution and a Fourth Amendment claim are not only different, but never the twain shall meet, even if they both require a lack of probable cause. While a malicious prosecution claim may not require a seizure, it doesn’t exclude it.

Conclusion

How did the court find in this case?

Held: The presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious-prosecution claim relating to another, baseless charge. The parties, and the United States as amicus curiae, all agree with this conclusion, which follows from both the Fourth Amendment and traditional common-law practice.

Jascha Chiaverini, et al., Petitioners v. City Of Napoleon, Ohio, et al.

So when a court issues an arrest warrant, probable cause must be established for all charges, not just one of them. I supposed if all of the charges were misdemeanors or of similar severity, it may not have impact on the treatment of the accused. However, in the case of Mr. Chiaverini, the invalid charge was much more serious than the valid charges.

In some ways I agree with Justice Thomas. I don’t know if a malicious prosecution claim, over and above the deprivation of rights protected by the Fourth Amendment, improved Mr. Chiaverini’s case or not. What I do not see is how the Fourth Amendment claim would invalidate it.

As always, it appears the devil is in the details. If Mr. Chiaverini had a letter from the police telling him to hold onto the ring, he should have simply informed the officers and left it at that. As numerous attorneys have said, there is no benefit from talking to the police, and this case is an example. If Mr. Chiaverini had not continued his conversation with the officers, the subject of his precious metals license may never have come up, leading to the second misdemeanor charge. Without that admission, the police may not have turned their investigative eye from the ring to Mr. Chiaverini’s business. Then again, if the judge had better considered the probable cause for the money laundering charge, it may not have been included in the arrest warrant. Put all of this together and it appears Mr. Chiaverini’s situation went from bad to worse because of ongoing discussion with the police.

I think this case should be a warning, not only about talking to the police when not legally necessary, but also reading the fine print, especially of warrants. Should Mr. Chiaverini’s malicious prosecution claims turn out to be valid, it may also impact the other charges by association.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 15, 2024

• You have the right to remain silent, correct?
• SCOTUS says you don’t have the right to remain silent unless you say so.
• Do you find it ironic that you have to speak to remain silent?

Everyone knows we have a right to remain silent, correct? What if I told you that in 2013 the Supreme Court upheld a decision basically stating that is not true. You only have the right to remain silent if you verbally claim the right in the first place, otherwise, according to SCOTUS, your silence can be used against you. Let’s take a look at this case and some of the history behind this violation of your rights.

Your Right to Remain Silent

Anyone who has watched a crime drama, or has been arrested, knows about the Miranda Warning.

the requirement set by the U. S. Supreme Court in Miranda v. Alabama (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: “the right to remain silent, the right to legal counsel, and the right to be told that anything he/she says can be used in court against” him/her.

Miranda warning – The Free Legal Dictionary

There’s more to the Miranda decision, but this is what every American “knows”: They have a right to remain silent. But where does that come from?

No person shall … be compelled in any criminal case to be a witness against himself

U.S. Constitution, Amendment V

Technically, you have the right not to be compelled to be a witness against yourself in a criminal case. Since anything you say could be used against you, you generally did not have to talk to law enforcement, or any government agent for that matter. However, as is so often the case, the right to not be compelled to self-witness was relabeled the right to remain silent. While at first that sounds like the same thing, we’ll soon found out it is not.

Berghuis v. Thompkins, 560 U.S. 370 (2010)

In the Berghuis v. Thompkins case, Mr. Thompkins had been arrested and advised of his right in accordance with Miranda, at which point two officers interrogated him about a shooting where one victim died. As recorded in the case:

At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting.

Berghuis v. Thompkins, 560 U.S. 370 (2010)

At trial, Mr. Thompson moved to suppress his statement, claiming he had invoked his Fifth Amendment right to remain silent and that his statements were involuntary. The question of Mr. Thompson’s motion made it all the way to the Supreme Court, which held that the state court’s decision to deny the motion was correct.

Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” … If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent.

Berghuis v. Thompkins, 560 U.S. 370 (2010)

The Berghuis court relied on the case Davis v. United States. However, while the case did involve Miranda rights, it did not involve the right to remain silent.

Petitioner, a member of the United States Navy, initially waived his rights to remain silent and to counsel when he was interviewed by Naval Investigative Service agents in connection with the murder of a sailor. About an hour and a half into the interview, he said, “Maybe I should talk to a lawyer.” However, when the agents inquired if he was asking for a lawyer, he replied that he was not. They took a short break, he was reminded of his rights, and the interview continued for another hour, until he asked to have a lawyer present before saying anything more. A military judge denied his motion to suppress statements made at the interview, holding that his mention of a lawyer during the interrogation was not a request for counsel. He was convicted of murder, and, ultimately, the Court of Military Appeals affirmed.

Davis v. United States, 512 U.S. 452 (1994)

I contend that there is a fundamental problem with the decision in Berghuis. Miranda does not protect a single right, but multiple rights, as the Miranda court stated:

The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney.

Miranda v. Arizona, 384 U.S. 436 (1966)

The Miranda court clearly identified two separate rights that the police need to advise someone upon arrest: The right to remain silent and the right to an attorney. These rights are different not only in form, but in function. The right to an attorney is a positive right; it identifies something the government must provide to the accused. This right is protected by the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right …to have the Assistance of Counsel for his defence.

U.S. Constitution, Amendment VI

The right to remain silent, more accurately the right not to witness against yourself, is a negative right because it’s what the government cannot do to you: Compel you to witness against yourself. This is protected by the Fifth Amendment.

No person … shall be compelled in any criminal case to be a witness against himself,

U.S. Constitution, Amendment V

So when the Berghuis court found:

Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”

Berghuis v. Thompkins, 560 U.S. 370 (2010)

The court was partially correct in that, by voluntarily making a statement to the police, he was waiving his “right to remain silent” under Miranda. However, the court made an egregious mistake when they held:

Such a waiver may be “implied” through a “defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”

Berghuis v. Thompkins, 560 U.S. 370 (2010)

No, Thompkins did not waive his right to remain silent, he simply did not exercise it for a time. Later, he did exercise it, recognizing that the police could not compel him to witness against himself. Which leads us to Salinas v. Texas and the hole the court claims to have punched through the Fifth Amendment.

Salinas v. Texas

The case of Salinas v. Texas starts with Mr. Salinas being questioned by police.

Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment.

Salinas v. Texas, 570 U.S. 178 (2013)

In Salinas’ case, it wasn’t a question of whether or not what he said could be admitted as evidence in a court of law, rather than whether his silence was evidence of his guilt. This abuse of the Fifth Amendment was upheld by a 5-4 decision by the Supreme Court, the opinion for which was written by Justice Alito.

To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it.

Salinas v. Texas, 570 U.S. 178 (2013)

Here again we see the illiteracy often demonstrated by the courts. First, what’s at issue is not a “privilege,” it’s a right to immunity. The government is not required to give you silence, they just cannot force you to speak. Second, this right has nothing to do with self-incrimination, but with self-witness. If you don’t wish to divulge information about yourself that has no incriminating value, that is your right, protected by the Fifth Amendment to the Constitution of the United States. Apparently this fact is lost on at least five of the nine justices on the Supreme Court. The court compounded this error when Justice Alito wrote:

Petitioner’s silence falls outside this exception because he had no comparable unqualified right not to speak during his police interview.

Salinas v. Texas, 570 U.S. 178 (2013)

Apparently these justices were absent in law school when they taught about the First Amendment. Oh, wait, law schools do not teach the actual Constitution anymore. Otherwise the justices would have remembered the First Amendment.

Congress shall make no law … abridging the freedom of speech

U.S. Constitution, Amendment I

You see, Freedom of Speech is not only the right to speak, but the right to refrain from speaking. So, contrary to Mr. Alito’s opinion, Mr. Salinas retained the rights not to speak and not to abase himself during his police interview. I don’t know if Congress has passed legislation requiring people to speak to law enforcement, but if they did, it’s unconstitutional and therefore void, and the courts are bound to ignore it.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison, 5 U.S. 137 (1803)

If Congress has not passed such legislation, then Justices Alito, Roberts, Kennedy, Thomas, and Scalia violated their oaths of office by placing their own opinions above the law of the land.

Biasing the Jury

The courts, from Texas all the way to the Supreme Court, not only violated Mr. Salina’s rights protected by the Fifth Amendment, but the Sixth Amendment as well.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,

U.S. Constitution, Amendment VI

By claiming that a lack of evidence is itself evidence, the courts effectively biased the jury against the accused. Mr. Salinas was asked if the ballistics of his shotgun would match those of the casings found at the murder scene. By not answering that question, and only that question, everyone assumed it was because he knew the ballistics would match because he had committed the murder. That’s not evidence, that’s an assumption. Perhaps Mr. Salinas did not know if the ballistics would match? If I assume Mr. Salinas is not guilty of the crime, there are several reasonable explanations for his silence. Maybe someone else had access to his shotgun, and may have committed the murder. Perhaps someone collected spent casing from his shotgun and either planted them at the scene or had previously dropped them. Mr. Salinas may have been shooting with the victim at another time, accidentally leaving his spent casings behind. Perhaps the ballistics tests were just not that reliable. All of those assumptions would be reasonably valid reasons why Mr. Salinas did not wish to witness against himself, only to later be accused of lying to the police. And let’s face it, if Mr. Salinas had invoked his right to remain silent when asked that question, would the assumption of guilt by the police and prosecution be any less likely?

Conclusion

Name one other right where you are required to announce that you are exercising it before you are allowed to do so? If the police come to your home, should you be required to invoke your right against unreasonable searches before you deny them consent to search your home? When the FBI attempts to intimidate you into censoring “misinformation,” should you be required to invoke Freedom of Speech and Press before saying no? In either case, should your refusal to allow entry or to comply with censorship demands be considered evidence of your guilt? The answer to all of these questions should be a hearty and forceful NO!

I do not know if Mr. Salinas is guilty or not, or even if the egregious violation of this rights and biasing of the jury was the turning point in his conviction, but I know that the courts abused their position not only against Mr. Salinas, but against all of us. The opinions in Salinas v. Texas, from the state court on up, has blown a hole in the Fifth Amendment as surely as if the court had used Mr. Salinas’ shotgun.

Based on this case, and the advice of several attorneys, we know the courts will not protect our right against self-witness. Therefore, it has been recommended to me to not merely to exercise my right to remain silent, but to clearly state that I am doing so beforehand. And if you find it ironic that you have to speak before you can safely remain silent, then you are apparently smarter than a Supreme Court justice.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 5, 2024

• Do you loose your rights when you cross state lines?
• Does a state have the power to ignore licenses from another state?
• Can Massachusetts require visitors from out of state to get their permission before carrying a firearm in their state?

Can Massachusetts prosecute out-of-staters who can legally carry in their home state? That was the question before Massachusetts courts in two cases. Needless to say, when these courts agreed with the plaintiffs, the Commonwealth disagreed, appealing the cases to the Massachusetts Supreme Judicial Court. While we wait for the court to decide the case, let’s look at the originating cases and the Commonwealth’s argument.

Two Challenges

The two cases we’re looking at here are almost identical. In fact, the court even mentioned that the case Commonwealth v. Phillip Marquis is similar to Commonwealth v. Donnell, so we’ll focus on the latter.

The defendant Dean Donnell is charged in the Lowell District Court with carrying a firearm without a license under G.L. 269 $10(a). The defendant has filed a motion to dismiss the charge in the complaint claiming that:

1. 269 §10(a) is unconstitutional on its face.
2. 269 $10(a) is unconstitutional as applied to the defendant, and
3. 269 §10(a) violated the defendant’s right to be free from cruel and
   unusual punishment.

Commonwealth v. Dean F. Donnell

In both cases the defendants were charged in Lowell District Court with carrying a firearm without a license. And in both cases the defendants claim that GL. 269 §10(a) is unconstitutional on several counts. What is General Law (G.L.) 269 §10(a)?

Whoever, except as provided or exempted by statute, knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm, loaded or unloaded, as defined in section one hundred and twenty-one of chapter one hundred and forty without either:

(1) being present in or on his residence or place of business; or

(2) having in effect a license to carry firearms issued under section one hundred and thirty-one of chapter one hundred and forty …

Massachusetts General Law, Chapter 269, Section 10(a)

Under Massachusetts law, possession of a firearm without a license is prohibited. While the law provides some exceptions, the fact is Massachusetts law generally prohibits the bearing of a firearm. What arguments did the defendants make that G.L. 269 §10(a) is unconstitutional?

The defendant in his memorandum in support advances arguments that;

1. L. 269 §10(a) impermissibly infringes on the Second Amendment of the U.S. Constitution;
2. L. 296 §10(a) impermissibly shifts the burden of proof onto the defendant to prove he was in fact licensed;
3. Requiring non-residents to obtain licenses to carry firearms violates the Second Amendment because there is no historical analogue burdening the right to interstate travel;
4. The holding of Commonwealth v Harris … does not survive Constitutional muster and is inapplicable to the defendant’s case; and
5. The defendant’s right to equal protection and the right to travel has been violated.

Commonwealth v. Dean F. Donnell

Massachusetts Law and the Second Amendment

Does G.L. 269 §10(a) infringe on the Second Amendment?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution, Amendment II

It sure seems like an infringement on the people’s right to keep and bear arms. After all, what other right do the people possess where they have to get permission from the state to exercise it? Does requiring someone produce a license shift the burden of proof of a crime onto the defendant? Does requiring an out of state resident obtain a license in Massachusetts place an unconstitutional burden on their right to interstate travel? Was the court wrong in Commonwealth v. Harris? Does G.L. 269 §10(a) fail to protect the rights of residents from other states? These are all questions placed before the Lowell District Court.

The facts leading up the issuance of the complaint are not in dispute and for the purposes of this motion, the Court accepts them.

Commonwealth v. Dean F. Donnell

No one disputes the facts of either of these cases. Both men live in New Hampshire, and hold valid carry licenses in that state. And both men exercised their right to bear arms when they crossed the state line into Massachusetts.

There is no question that the holding of the U.S. Supreme Court in New York State Rifle and Pistol Association, Inc. v. Bruen, …, has changed the legal landscape on how the second amendment of the Constitution is interpreted, particularly how it affects existing firearm statutes and challenges to their constitutionality

Commonwealth v. Dean F. Donnell

Yes, the Supreme Court case NYSRPA v. Bruen has changed the legal landscape, specifically that exercising the right to keep and bear arms is presumptively constitutional, and that governments must prove not only that their laws follow the text of the Constitution, but the historical tradition of American law.

In fact, the Supreme Judicial Court in Commonwealth v. Guardada, … recognized for the first time that the Second Amendment to the U.S. Constitution guarantees an individual’s right to possess and carry a firearm outside of his home.

Commonwealth v. Dean F. Donnell

Not until the 2023 case Commonwealth v. Guarded did the Supreme Judicial Court of Massachusetts recognize what the Second Amendment actually says: The people have a right to both keep (own) and bear (carry) arms..

Prior to Guardado, Massachusetts treated the possession or carrying a firearm outside of one’s home as a“privilege” that was conferred on a person by the state.

Commonwealth v. Dean F. Donnell

The court admits that, for years, Massachusetts treated the right to keep and bear arms as a “privilege” granted by the state. That Massachusetts officials and judges simply ignored the plain language of the Constitution and substituted their own opinions.

It was against the Bruen backdrop that the SJC reversed the longstanding law in Massachusetts that licensure to possess a firearm was not an essential element of the felony of unlawful possession of a firearm outside of the home, Massachusetts had previously required that holding a valid license to carry a firearm was an exception to the otherwise prohibition of carrying a firearm and that requiring a defendant to produce a license at trial did not infringe on Constitutionally protected conduct.

Commonwealth v. Dean F. Donnell

As I’ve already pointed out, Massachusetts law generally prohibits the carry of a firearm, with certain exceptions. Only after the Bruen decision did the SJC change its position. Which clearly informed the judge in the Lowell District Court, John F. Coffey, in deciding these two cases.

The conduct of the defendant in the instant case clearly is covered by the Second Amendment. Therefore, the burden falls on the Commonwealth to justify the law showing that it is consistent with the Country’s tradition of firearm regulation.

Commonwealth v. Dean F. Donnell

Following the advice from the Supreme Court in their Bruen decision, Judge Coffey states that carrying a firearm is clearly covered by the Second Amendment, placing the burden of proof on the Commonwealth to show that their laws are consistent with America’s history when it comes to firearm regulation.

As the defendant in the instant case is not a resident of Massachusetts and was in compliance with his home states laws on the possession of the firearm, the Commonwealth needed to show some historical analogue relating to disparate treatment of nonresidents and must point to some “historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.”

Commonwealth v. Dean F. Donnell

The defendants in both cases were not residents of Massachusetts, and were in compliance with their home state’s laws. Specifically, they held valid carry licenses, but that has not been good enough for Massachusetts in the past.

Full Faith and Credit

The Commonwealth argues that under the holding in Commonwealth v. Harris supra, Massachusetts is not obligated to recognize an out of state resident right to carry a firearm under the Full Faith and Credit clause of the Constitution. They claim that the Commonwealth is not required to substitute its statutes for those of New Hampshire. … and Bruen does not affect the ability of states to require a license as long as the license criteria are objective.

Commonwealth v. Dean F. Donnell

The Commonwealth argues that a decision of their court supersedes the Constitution of the United States? After all, Article IV, Section 1 states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

U.S. Constitution, Article IV, Section 1

The Commonwealth of Massachusetts is required to give full faith and credit to the public acts and records of all the other states. Shouldn’t that include the validation that a person is not prohibited from carrying a firearm? After all, the Commonwealth of Massachusetts accepts New Hampshire issued drivers licenses as valid for operating a motor vehicle. So why not carry licenses for carrying a firearm?

Furthermore, no one is requiring Massachusetts to substitute New Hampshire laws for their own, only to recognize the valid licenses held by their residents.

This argument is not persuasive because at the time of the Harris decision, carrying a firearm outside of the home was a privilege, and the Harris Court held that Massachusetts didn’t have to give Full Faith and Credit to New Hampshire laws conferring that same privilege.

Commonwealth v. Dean F. Donnell

How about the fact that the Harris decision was wrong? Massachusetts law may declare that carrying a firearm is a privilege, but the Constitution clearly states not only that it’s a right, but that it shall not be infringed. As as the Supremacy Clause clearly states:

This 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2

Not only was the judge bound to follow the Constitution, he was bound to uphold it above not only the laws, but above the Constitution of the Commonwealth of Massachusetts.

Firearm Licensing

The Commonwealth is correct that a concurring opinion in Bruen did state that the ability of States to require a license is not affected, but the holding in Bruen basically took away all subjective criteria for the issuance of such a license, The Commonwealth points to no historical precedent limiting the reach of one’s exercise to a federal constitutional right to only within that resident’s states borders.

Commonwealth v. Dean F. Donnell

While the Supreme Court did hold that state licensing requirements were not affected by its decision, that was only the arbitrary decision of the court, unsupported by the Constitution of the United States. Even so, what right does the Commonwealth have to limit the exercise of a constitutionally protected right outside its own borders? How can the Commonwealth claim to be giving full faith and credit to the public acts of other states if they provide such an arbitrary exception for carry licenses?

Moving on to the defendant’s claim that GL 269, sec. 10(a) violates the defendant’s right to travel and equal protection, the Commonwealth also asserts that it does not violate the right to travel and equal protection clause because the Commonwealth’s license requirements do not prohibit him from traveling in Massachusetts, they only prohibit him from carrying a firearm while traveling in Massachusetts. The Commonwealth further argues that the licensing requirements don’t treat non-residents differently than a residents because they can apply for a temporary nonresident license to carry, or they can travel through the state while complying with statutory exemptions of unloading the firearm and storing it secured in a locked compartment and the travel is for a specific purpose such as training or competition.

Commonwealth v. Dean F. Donnell

Personally, I think the right to travel and equal protection claims are the weakest of the case. As the Commonwealth points out, both defendants were free to travel in the state as long as they complied with state law, and they could have carried firearms if they had obtained a state license to do so. However, while these points may be the weakest, the court still upheld them.

The Commonwealth’s argument against the defendant’s claim that GL 269, sec. 10(a) violates his rights under the equal protection clause because he can obtain a temporary nonresident license to carry is also unpersuasive. As stated above, prior to the Bruen decision, Massachusetts treated the carrying of a firearm as a privilege. While it allowed nonresidents to apply to obtain a license for that privilege, nonresidents were not treated the same asresidents. Residents of Massachusetts obtaining a license were granted the license for five years. A temporary non resident license was only valid for one year.

Commonwealth v. Dean F. Donnell

The court points out that a resident and non resident license were not equal, since a non resident license is only valid for one fifth the time of a resident license. But what about the licensing scheme as a whole?

The Commonwealth next argues that the Massachusetts licensing scheme imposes a permissible burden because of the substantial state interest in preventing certain people from possessing firearms. However, under federal law, certain people are prohibited from obtaining/possessing firearms. 8 U.S.C.$ 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition, …

Commonwealth v. Dean F. Donnell

The problem with this Commonwealth argument is that Massachusetts does not use its licensing scheme to prevent certain people from possessing firearms, as the law clearly states, it permits by exception, certain people to carry firearms. Since New Hampshire requires a background check to be issued a carry license, Massachusetts should have been satisfied that said certain person would have been denied a carry license in the first place.

While Judge Coffey uses a federal law to make it unlawful for certain categories of persons to possess firearms, that law itself has constitutional issues, since public safety is a state power, not a federal one, under the Tenth Amendment.

District Court Conclusion

A law-abiding resident of New Hampshire who is exercising his Constitutional right should not become a felon by exercising that right while he is traveling thorough Massachusetts merely because he has not obtained a Massachusetts license to carry, which now, under the holding of Bruen, has to be issued to an applicant unless the applicant is otherwise disqualified. The standard for who is a disqualified individual must be the same. Otherwise, a state may decide to impose different requirements on the exercise of any Constitutional right. For example, some states could impose different age limits on voting in elections.

Commonwealth v. Dean F. Donnell

While I agree that the exercise of a constitutionally protected right should not make someone a felon because they did not pay a tax and get government permission, the judge did make a couple of mistakes. First, the power to determine who is disqualified to possess a firearm was not delegated to the Congress. The Fifth Amendment clearly states:

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

The only way for someone to be deprived of the property they have in their rights is via due process of law. In this case, only as punishment for conviction of a crime does the removal of a right meet the due process requirement. Since Congress only has general legislative authority over lands legally owned by the federal government (Article I, Section 8, Clause 17), they do not have the power to determine punishments for crimes within the states; only the states themselves can do that.

Also, the judge was wrong when he said “For example, some states could impose different age limits on voting in elections.” If the judge had bothered to read Amendment XXVI, he would find that the states can set their own voting age, as long as it is not older than 18 years of age.

This Court can think of no other constitutional right which a person loses simply by traveling beyond his home state’s border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentence of incarceration. Anecdotally, a law abiding New Hampshire resident exercising his constitutional right to carry while shopping at the Pheasant Tree Mall in Nashua, New Hampshire would become a felon when he shops in a section of a store at that Mall, which happens to be in Tyngsborough, Massachusetts.

Commonwealth v. Dean F. Donnell

Well said, and I find the examples of the Pheasant Tree Mall especially poignant.

Therefore, the Court finds that GL. 269, sec. 10{a) in unconstitutional as applied to this particularly situated defendant and Allows the motion to dismiss on that ground.

Commonwealth v. Dean F. Donnell

Petition to Supreme Judicial Court

As I stated before, while the District Court found for the out of staters in both cases, the Commonwealth wasn’t happy about it. So they appealed to the Massachusetts Supreme Judicial Court.

Now comes the Commonwealth and requests, … that this Court grant direct appellate review and consolidate the cases of Commonwealth v. Dean F. Donnell, Jr. (23-P-1338) (hereinafter referred to “Donnell”) and Commonwealth v. Philip Marquis (23-P-1278). These cases involve pending appeals of the allowance of the defendants’ motions to dismiss by the same motion judge in the Lowell District Court, which invoke novel but erroneous applications of Second Amendment constitutional law. The motion judge erroneously ruled that out-of-state residents may not be prosecuted for unlawful possession of firearms in Massachusetts if they were legally entitled to possess those weapons in their home state.

Commonwealth v. Dean F. Donnell

The Commonwealth claims that Judge Coffey did “invoke novel but erroneous applications of Second Amendment constitutional law.” That may be true, but he did follow the Constitution of the United States, which supersedes the opinions of judges, even if they call their decision “constitutional law.”

The same motion judge has already dismissed seven cases in total under this erroneous theory. The judge’s rationale deprives the Commonwealth of its right and obligation to enforce its laws equally for all those who are within its borders. The grounds for this application are set forth below.

Commonwealth v. Dean F. Donnell

In addition to the two cases the Commonwealth is asking to be consolidated, there are five others currently in the Appeals Court. The Commonwealth makes a grave error in this motion. The Commonwealth’s right to enforce its laws do not extend to laws that violate the Constitution of Massachusetts or the United States. When Judge Coffey found that G.L. 269 §10(a) violates the Constitution of the United States, he also found that the Commonwealth had neither right nor duty to enforce that law.

Both Commonwealth v. Dean F. Donnell, Jr. and Commonwealth v. Philip Marquis involve defendants who were legally entitled to possess firearms in New Hampshire but were not licensed to possess those firearms in Massachusetts. Both defendants were charged with illegally possessing firearms in Massachusetts. Neither defendant had attempted to acquire a non-resident license to carry firearms within the Commonwealth of Massachusetts prior to the respective offenses at issue.

Commonwealth v. Dean F. Donnell

That, however, is the point. The law that prohibited these two men from carrying firearms in Massachusetts, in this two instances, has been found unconstitutional and therefore void in these cases.

Finally, states have always been free to regulate who was allowed to possess arms within their territorial borders, what types of weapons were prohibited, and where arms could be carried, imposing differing standards in each sovereign.

Commonwealth v. Dean F. Donnell

There’s a difference between being free to regulate and to get away with regulating. Since 1791 the States have been prohibited from infringing on the right to keep and bear arms without due process of law. This is where the burden of proof argument makes sense. If there is a question as to whether or not someone can bear arms, the burden of proof must be on the state. By placing financial and training requirements on the exercise of a constitutionally protected right, the state effectively places the burden on the people to prove they are not prohibited, violating due process.

The motion judge concluded that applying Massachusetts firearm licensing laws to nonresidents within its border violates an out-of-state resident’s constitutional rights to travel and equal protection. This was clearly erroneous; neither defendant had sought a Massachusetts firearms license. Therefore, the defendants were treated exactly the same as Massachusetts residents would have been who had made no efforts to avail themselves of the licensing statute.

Commonwealth v. Dean F. Donnell

The Commonwealth claims the rights of the two defendants were not violated because they didn’t seek Massachusetts’ permission to exercise a right protected by the Constitution of the United States. Not only does Massachusetts want non residents to get permission before possessing a firearm in their state, this is the process the state wants them to go through:

To apply for a Non-Resident License to Carry Firearms or a Resident Alien Permit:

• You must apply for a non-resident license to carry firearms or a resident alien permit through the Firearms Records Bureau.
• You will need:
  • A complete non-resident firearms licenseor resident alien permit 
  • The required application fee
  • A Massachusetts Basic Firearms Safety Coursecertificate
• You may need:
  • An in-person appearance
  • A visa or copy of immigration card

Apply for a firearms license – Massachusetts Government Website

This is not all. For example:

Every applicant is required to appear in-person at the Firearms Records Bureau (FRB) for the first non-resident license to carry (LTC) application. …

Renewals will be processed solely by mail, and you will still need to renew your LTC annually. However, subsequent in-person appearances may be required at the discretion of the FRB. If required, you will receive an appointment notice by mail or email with your scheduled date and time to appear at this office. Appointments will be scheduled in the order that completed applications are received.

Application for Non-Resident Temporary License to Carry Firearms

Not only are you required to apply in-person for your initial application, but you may be required to appear at any of your renewals as well. While this may not be a great expense of inconvenience for someone in New Hampshire, for someone like me in Nashville, TN, it’s a very big deal. And don’t forget, you not only have to pay for a firearm safety course, but your instructor must be certified by the Colonel of the Massachusetts State Police. Then there’s the annual fee of $100, all so you can exercise a right protected by the Constitution of the United States. Yet the Commonwealth of Massachusetts sees this as a “permissible burden” to the exercise of a constitutionally protected right. Tell me, do you believe the Commonwealth would think the same thing if every government employee had to go through a similar process to exercise their right to enforce their laws? Somehow, I don’t think so.

Conclusion

It’s nice to see a judge that not only recognizes they are bound to the supreme law of the land, but willing to act on it. While I’m not surprised that the Commonwealth sees differently, the real question is, what does the Supreme Judicial Court think? History tells me they are much more likely to find for the Commonwealth than for the defendants, no matter what the Constitution says. In such a case, will these two men appeal to the federal courts? Since the State of Massachusetts would be party to the case, they could go directly to the Supreme Court under Article III, Section 2, Clause 2. I suppose we will have to wait and see. While we wait, consider the laws in your state. Do they follow the Constitution of the United States or are they contrary to it? As Alexander Hamilton wrote in Federalist #78:

No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves;

Alexander Hamilton – Federalist Papers #78

Who is superior, the people or their representatives? Which version of America do you want to live in?

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 28, 2024

• Are there limits to the powers of a federal agency?
• When Congress created OSHA, did they follow the Constitution?
• While the Supreme Court failed to take the time to consider these questions, We the People should.

Was the Occupational Safety and Health Administration properly created? Was the grant of authority Congress gave the agency constitutional and valid, or did Congress create an overpowered agency to micromanage businesses throughout the United States? That is the question in the case Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al. Sadly, the Supreme Court decided not to hear the case, even if Justice Gorsuch would have and Justice Thomas wrote a dissent.

The Petition

When I was researching my book, The Constitution Study, I made a shocking discovery. There are 537 departments and agencies in the federal government, yet only 49 of those agencies exercise powers delegated to the United States by the Constitution. This case asks a similar question about the Occupational Safety and Health Administration (OSHA).

Congress gave the Occupational Safety and Health Administration the power to enact and enforce any workplace-safety standard that it deems “reasonably necessary or appropriate.” 29 U. S. C. §§652(8), 655(b). This petition asks us to consider whether that grant of authority is an unconstitutional delegation of legislative power.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

The petition in question is for a writ of certiorari, asking the Supreme Court to review this case. Sadly, at least to my mind, the court has declined to hear the case, a decision with which justices Gorsuch and Thomas disagreed. Justice Thomas went so far as to write a dissent from the decision.

The Law in Question

The Thomas dissent listed two subsections of Chapter 15 of Title 29 of the United States Code, which covers Occupational Health and Safety. The first of them, §652(8) defines the term “occupational safety.”

(8) The term “occupational safety and health standard” means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

29 USC §652(8)

The second establishes the procedures for the creation and management of the occupational safety and health standards.

The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner: …

(2) The Secretary shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments.

29 USC §655(b)

While the court was asked to determine the question of delegation of powers, there is a more fundamental problem with Chapter 15 as a whole.

(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources

29 USC §651

While Congress may be correct that work related personal injuries and illness place a burden on interstate commerce, Congress is not authorized to regulate said work related situations, only interstate commerce itself.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

You see, Congress can regulate commerce among the several states, but not anything that impacts said commerce. Furthermore, Congress claims to create these laws under their power to “provide for the general welfare.’

But Congress is NOT delegated the power to provide for the general welfare as they claim. Read the General Welfare clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

U.S. Constitution, Article I, Section 8, Clause 1

Congress has the power to lay and collect taxes, to pay the debts, and provide for the common defense and General Welfare of the United States, capital “U”, capital “S”, a proper noun, the very same proper noun the Tenth Amendment uses to say:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Congress is not delegated the power to regulate labor, neither is it delegated the power to regulate anything it thinks is for the “general welfare.” During a debate on bounties for cod fisherman, none other than James Madison said on the floor of the House of Representatives:

If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

Bounty Payments for Cod Fisheries, [6 February] 1792

The General Welfare Clause was never meant as a “catch all” power for Congress to do whatever it thought was for the “general welfare” of those in the nation. Rather, it seems quite obvious by its placement in a taxes clause, that the General Welfare Clause was meant to allow Congress to collect taxes to pay for the ancillary costs of its duties, such as paying the salaries of those offices created by the Constitution, maintaining “other needful buildings,” and providing necessary supplies. Based on this, Chapter 15 of Title 29 of the United States code was made contrary to the Constitution of the United States. Therefore, as Alexander Hamilton stated in Federalist #78:

No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Alexander Hamilton, Federalist #78

Delegation of Powers

As I said, this case is not about the creation of OSHA, but of the powers Congress delegated to it.

The Constitution vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States.” Art. I, §1. And, “[w]e have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body,” including to an administrative agency.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

All legislative power, all power to make law, is vested solely in Congress, and the Constitution does not delegate that body the power to delegate the powers vested in it. However, the court doesn’t seem to get tripped up on this detail.

But, under our precedents, a delegation of authority is constitutional so long as the relevant statute sets out an “‘intelligible principle’” to guide the agency’s exercise of authority.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

If, as the court has held, “the Constitution categorically forbids Congress to delegate its legislative power to another body,” how can they say that delegation of authority is constitutional under any circumstance? The answer is: By violating their oath of office and placing precedent and politics above the supreme law of the land.

The Court of Appeals for the Sixth Circuit upheld the delegation of authority to the Occupational Safety and Health Administration under this “intelligible principle” test, over Judge Nalbandian’s dissent.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Based on this unconstitutional “intelligible principle” test, the courts, including the Sixth Circuit court of appeals, have set aside the Constitution in support of a political agenda, namely empowering unelected bureaucrats to effectively make law. Since these unconstitutional laws include the collection of fines, fees, and other pseudo taxes, Congress’ dereliction of duty is the very definition of “taxation without representation,” or as the Declaration of Independence put it:

For imposing Taxes on us without our Consent

Declaration of Independence

The American people’s consent, as shown in the Constitution, did not include allowing unelected bureaucrats to impose fees, fines, or any other form of taxation.

Since the courts are not delegated the power to simply make up the rules as they go along, Justice Thomas states:

I continue to adhere to my view that the intelligible principle test “does not adequately reinforce the Constitution’s allocation of legislative power.”

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Justice Thomas is correct. Since the Constitution categorically prohibits Congress from delegating their legislative power to another branch, these laws are unconstitutional and void.

Usurpation of the Constitution

This case is a perfect example not only of Congress creating the bloated administrative state, but also of the courts placing the imprimatur of legitimacy on their actions.

This case exemplifies the problem. Congress purported to empower an administrative agency to impose whatever workplace-safety standards it deems “appropriate.” That power extends to virtually every business in the United States.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Congress literally handed over the keys of the regulatory system over to OSHA, by allowing them to create any standard they deem appropriate, with little if any oversight, review, and certainly no due process.

The agency claims authority to regulate everything from a power lawnmower’s design, 29 CFR §1910.243(e) (2023), to the level of “contact between trainers and whales at SeaWorld,”

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Not only does OSHA claim the authority to regulate every aspect of the workplace, but to overrule the Constitution itself. Specifically, Title 29 §1903.3 of the Code of Federal Regulations claims:

Compliance Safety and Health Officers of the Department of Labor are authorized to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer;…

29 CFR § 1903.3 Authority for inspection.

What Fourth Amendment?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

U.S. Constitution, Amendment IV

Who cares if a search of someone’s business is reasonable or not, or if there’s probable cause or due process? This group of unelected bureaucrats claim that the Constitution doesn’t apply to them. And if you refuse to allow them to illegally search your business, guess who gets to review the refusal?

Upon a refusal to permit the Compliance Safety and Health Officer, in exercise of his official duties, to enter without delay … The Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal, and shall immediately report the refusal and the reason therefor to the Area Director. The Area Director shall consult with the Regional Solicitor, who shall take appropriate action, including compulsory process, if necessary.

29 CFR § 1903.4 Objection to inspection

That’s right, the very same agency attempting to illegally inspect your business reviews your objection to it. Please notice, none of these powers are recorded in the laws of the United States, because they are not law. There are merely regulations impersonating laws and used to destroy your rights.

The Occupational Safety and Health Act may be the broadest delegation of power to an administrative agency found in the United States Code. … If this far-reaching grant of authority does not impermissibly confer legislative power on an agency, it is hard to imagine what would.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Thomas is correct, if OSHA isn’t the greatest abuse of power, both by Congress in creating it and in the agency by how they wield said power, I don’t know what is. I can think of no other act by Congress that so exemplifies the tenth grievance listed in the Declaration of Independence:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

Declaration of Independence

Just imagine if other agencies had similar discretion?

It would be no less objectionable if Congress gave the Internal Revenue Service authority to impose any tax on a particular person that it deems “appropriate,” and I doubt any jurist would sustain such a delegation.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Again, Just Thomas is correct. Yes, as inconceivable as this law is, the nine justices on the Supreme Court could not muster the four votes needed to hear the case. That, ladies and gentlemen, is not only inconceivable to me, but an apparent dereliction of duty of the highest order.

The question whether the Occupational Health and Safety Administration’s broad authority is consistent with our constitutional structure is undeniably important. At least five Justices have already expressed an interest in reconsidering this Court’s approach to Congress’s delegations of legislative power. See Paul v. United States, 589 U. S. , (2019) (statement of KAVANAUGH, J., respecting denial of certiorari) (slip op., at 2); Gundy, 588 U. S., at 149 (ALITO, J., concurring in judgment); id., at 164 (GORSUCH, J., joined by ROBERTS, C. J., and THOMAS, J., dissenting). Because this petition is an excellent vehicle to do exactly that, I would grant review.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Justice Thomas then lists two cases, Paul v. United States and Gundy, where justices Kavanaugh, Alito, Gorsuch, Roberts, and Thomas himself have questioned Congress’ delegation of legislative power. So why couldn’t this case get four votes to review? We will probably never know.

Conclusion

Here the Supreme Court had an excellent opportunity to fix the mistake of the “intelligible principle” test, yet it didn’t even take a swing at the case. As I said, we may never know why. I suppose the most generous view would be that there were more important cases to deal with this term, but I do not see that. Which leaves me with what I believe is the more likely reasons: Either it was politics or the desire to maintain the unconstitutional administrative state, neither of which are good for the republic. As Justice Thomas said:

Because the standard this Court currently applies to determine whether Congress has impermissibly delegated legislative power “largely abdicates our duty to enforce that prohibition,” I would grant the petition.

Allstates Refractory Contractors, LLC v. Julie A. Su, Acting Secretary of Labor, et.al.

Which is why it is so important that We the People read and study the Constitution. Not only so we are prepared to defend and assert our rights from the abusive powers of the bureaucrats, but so we can hire representatives at the state, federal, and yes, even local level, to help us protect ourselves and our rights. Because as long as unelected bureaucrats have the power to make rules, we are NOT a republic and we are most definitely NOT free.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 20, 2024

• Are AR-15s the super lethal weapon it’s often described as?
• Does the Second Amendment mean what it says?
• Can a court simply state that certain arms aren’t covered by the Second Amendment without any evidence?

There are plenty of myths that revolve around the Second Amendment. It’s only meant for the militia, or for hunting, or some weapons are just too dangerous, are only a few. When we read the Constitution, along with just a tiny bit of research into the Bill of Rights, these myths should evaporate like the morning mist. In the case Bianchi v. Brown, it appears the Fourth Circuit believes the myths. However, some unorthodox procedures may show the court manipulated the process to get the outcome they desired.

Assault Weapons Ban

Maryland, like some other states, have laws known as “Assault Weapons Bans.” First, we have to define what Maryland calls an “assault weapon.”

The statute defines “assault weapon” as “(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon.” … The term “assault long gun,” in turn, encompasses more than forty-five enumerated long guns “or their copies, regardless of which company produced and manufactured” the firearm. …. These proscribed guns include an assortment of military-style rifles and shotguns capable of semiautomatic fire, such as the AK-47, almost all models of the AR-15, the SPAS-12, and the Barrett .50 caliber sniper rifle. … The term “assault pistol” encompasses more than fifteen enumerated firearms and their copies. These include the TEC-9 and semiautomatic variants of the MAC-10, MP5K, UZI, and other military-style submachine guns.

Bianchi v. Brown

Maryland defines many different rifles, shotguns, and pistols as “assault weapons.” Many of these weapons are actually semi-automatic weapons as opposed to the full-automatic many people think of as “assault” or “military style” weapons. Maryland also defines a “copycat” weapon.

“Copycat weapon” is defined as a firearm that is not an assault long gun or assault pistol yet is covered by at least one of the following six categories:
(i) a semiautomatic centerfire rifle that can accept a detachable magazine and has any two of the following:

1. a folding stock;
2. a grenade launcher or flare launcher; or
3. a flash suppressor;

(ii) a semiautomatic centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;
(iii) a semiautomatic centerfire rifle that has an overall length of less than 29 inches;
(iv) a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds;
(v) a semiautomatic shotgun that has a folding stock; or
(vi) a shotgun with a revolving cylinder.

Bianchi v. Brown

What I find interesting are the banned features that have nothing to do with the lethality of the weapon. For example, how does a folding stock or flash suppressor make the weapon more lethal? The answer is, it doesn’t.

Maryland law prohibits any person in the state from selling, purchasing, receiving, transporting, transferring, or possessing an “assault weapon, ” subject to limited exceptions. Md. Code, Crim. Law § 4-303. A violator of this statute faces up to three years’ imprisonment. … Maryland law enforcement officers are authorized to seize and dispose of weapons sold, purchased, received, transported, transferred, or possessed in violation of the law.

Bianchi v. Brown

There are several constitutional issues with this Maryland law, not just the Second Amendment. Chief among them is the confiscation of so-called “assault weapons.” For example, is it reasonable for law enforcement to seize property that was legally purchased? It’s one thing to seize an item that was purchased, or even transported, in violation of the law, but what about the weapons that were purchased, received, or transported before this law went into effect? This law potentially violates the Fourth Amendment, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

U.S. Constitution, Amendment IV

It also violates the Fourteenth Amendment:

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV

Those who challenged the law did not claim it was a violation of the Fourth or Fourteenth Amendments, but of the Second.

Appellants are three Maryland residents who allege that they are legally eligible to possess and acquire firearms, three nonprofit gun rights organizations to which the residents belong, and a licensed firearms dealer based in Maryland. On November 13, 2020, appellants filed a complaint under 42 U.S.C. § 1983 in the U.S. District Court for the District of Maryland against the then-Attorney General of Maryland and other state law enforcement officials. Appellants contended that these officials’ enforcement of Maryland’s assault weapons regulations was unconstitutional under the Second Amendment’s right to keep and bear arms as applied to the states through the Fourteenth Amendment. They sought a declaratory judgment that the regulations prevented them from exercising their right to keep and bear arms, as well as an injunction to prohibit appellees from enforcing the statute.

Bianchi v. Brown

Again we have the lie that the Bill of Rights did not apply to the states until the Fourteenth Amendment, which is all based on a claim written by Chief Justice Marshall without any evidence at all. I go into more detail in the article The Bill of Rights and the States. The question remains though: Does this Maryland law violate the Second Amendment?

In their complaint, however, appellants “acknowledge[d] that the result they seek is contrary to Kolbe v. Hogan, …” In Kolbe, we upheld against a constitutional challenge the very same Maryland statute at issue here insofar as it applied to “assault long guns and those copycat weapons that are rifles and shotguns.” … Our en banc opinion rested on two distinct grounds. We first concluded that the assault weapons at issue were “not constitutionally protected arms.” … We then found that, even assuming the Second Amendment reached such weapons, the Maryland regulations survived intermediate scrutiny.

Bianchi v. Brown

Bianchi and company agreed that what they were asking the court to do was contrary to their previous opinion in Kolbe v. Hogan. Between the court’s decision in Kolbe and this case, however, the Supreme Court had decided New York State Rifle & Pistol Association v. Bruen.

On June 23, 2022, before ruling on the cert petition, the Supreme Court decided New York State Rifle & Pistol Ass’ n v. Bruen, … In Bruen, the Court disavowed as “one step too many” the two-step framework that our court used in Kolbe and that other federal circuit courts had nearly universally employed to assess Second Amendment claims in the wake of District of Columbia v. Heller, … Although “[s]tep one of the predominant framework” —which was “rooted in the Second Amendment’s text, as informed by history”—was “broadly consistent with Heller,” the Court emphasized that the “means-end scrutiny” at the second step was improper. … Because “the Second Amendment . . . codified a pre-existing right,” courts were not to engage in interest balancing to determine whether a challenged regulation was constitutionally permissible. … Instead, we were tasked with discerning the historical scope of the right and parsing whether the challenged regulation was consistent with it.

Bianchi v. Brown

The Supreme Court said the Fourth Circuit got it wrong in how they analyzed this case. Now the court had to look at whether the law fits within “constitutional text and history” (NYSRPA v. Bruen).

A week after Bruen was decided, the Supreme Court granted appellants’ petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Bruen. … We ordered the parties to provide supplemental briefing, and a panel of this court heard oral argument on December 6, 2022. Before an opinion issued, however, our court voted to rehear the case en banc. We received additional supplemental briefing from the parties, and heard oral argument as a full court on March 20, 2024. Now, with the benefit of Bruen, we can proceed to decide this case.

Bianchi v. Brown

The Supreme Court “GVRed”, or granted certiorari, vacated the judgment, and remanded it back to the Fourth Circuit to consider based on the Supreme Court’s opinion. This is where some “shenanigans” came in.

Shenanigans

Let’s start with the explanation of what happened from a footnote on page 87 of the decision.

This unorthodox procedural posture bears some explanation. After hearing the case in December 2022, the initial panel majority reached a decision and promptly circulated a draft opinion. Yet for more than a year, no dissent was circulated. The panel thus held the proposed opinion in accordance with our custom that majority and dissenting opinions be published together. A year later—as the proposed opinion sat idle—a different panel heard arguments in United States v. Price (No. 22-4609), which also involved interpreting and applying Bruen. The Price panel quickly circulated a unanimous opinion that reached a conclusion at odds with the Bianchi majority’s year-old proposed opinion. Facing two competing proposed published opinions, the Court declined to let the earlier circulated opinion control. Rather, in January 2024, we “invoked the once-extraordinary mechanism of initial-en-banc review.” … I hope that we will not find ourselves in this posture again soon. Cf. United States v. Gibbs, 905 F.3d 768, 770 (4th Cir. 2018) (Wynn, J., voting separately) (suggesting that majority opinions may be issued without awaiting dissenting opinions to prohibit those dissenting opinions from exercising a “pocket veto” to “deny or delay fairness and justice”).

Bianchi v. Brown

So after hearing the case in December, the court sat on it for more than a year. Why was no dissent circulated? Was one written, but not distributed? Did one of the panel vote against the decision, but never write a dissent? I don’t know. However, it’s apparent that another panel had a unanimous decision different than the one the Bianchi panel had come to. To make things worse, the full court decided to review the case even though the reviewing panel had not published its decision. Why did the court make this extraordinary move? Could it be that, as the court in United States v. Gibbs warned, that the dissent exercised a “pocket veto”? Did the dissent in Bianchi delay justice to get the outcome they wanted?

Second Amendment

With that question in mind, let’s go back to the facts of the case.

The Second Amendment instructs, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. This single sentence provides us with a lofty command, but little concrete guidance. In the past two decades, the Supreme Court has stepped in to provide this guidance, offering a methodological framework by which to structure our inquiry.

Bianchi v. Brown

Here I completely disagree with the court. The Second Amendment gives concrete guidance: The right of the people to keep and bear arms shall not be infringed. It doesn’t get much more concrete than that. Of course, I’m pretty sure the court wants some wiggle room to get the outcome they want. Yes, the Supreme Court has provided guidance, but that guidance seems to contradict what the Constitution actually says.

This was the question we earlier faced as an en banc court in Kolbe. Our primary holding in that case was that the assault weapons regulated by the statute were not within the scope of the Second Amendment. … Specifically, we resolved the case by finding that the covered weapons were “‘like’ ‘M-16 rifles’, i.e., ‘weapons that are most useful in military service,’ and thus outside the ambit of the Second Amendment.” … It was only after “we affirm[ed] the district court’s award of summary judgment in favor of the State” on those grounds that we turned to finding, “[i]n the alternative,” that the assault weapons regulations survived intermediate scrutiny. Id. at 137–38.

Bianchi v. Brown

This is where the court goes completely off the rails. First of all, only one of the covered weapons are anything like an M-16. Second, how does the fact that a weapon is “like” another remove it from Second Amendment coverage? Of course, we still have this “scope” of the Second Amendment question.

Having elucidated our understanding of the Second Amendment’s text in its historical context, we turn to the Maryland regulations under challenge in the present case. Our analysis confirms that the covered weapons are not within the ambit of the “right to keep and bear arms” as codified within the plain text of the Second Amendment.

Bianchi v. Brown

While the court may have “elucidated” their understanding of the Second Amendment, their understanding is not based in the law. The court provides no evidence that when the drafters or ratifiers of the Second Amendment said “arms,” they actually meant “arms that are not too scary or dangerous.” In short, their analysis is not based on the language of the Second Amendment, but on their desire to get to a specific outcome.

The AR-15

We do recognize, however, that the parties thoroughly briefed the issue of whether the Second Amendment protects a citizen’s ability to purchase and possess an AR-15, which appellants refer to as the “paradigmatic semiautomatic rifle targeted by ‘assault weapons’ laws.” … This is also the question we primarily considered at our en banc oral argument. Because it has been fully briefed and considered after a remand from the Supreme Court, we find the question of whether the AR-15 is within the ambit of the Second Amendment appropriate to address here. Not to address it would be to bypass the very heart of the dispute in this proceeding.

Bianchi v. Brown

Since the AR-15 is so often the target of these “assault weapons bans,” the court takes the time to look specifically at that weapon. Sadly, the court again gets their facts wrong.

The civilian versions of the AR-15 have not strayed far from the rifle’s military origin.

Bianchi v. Brown

The AR-15 is not derived from military weapons; it’s actually the other way around.

First developed in the 1950s for civilian use, the AR-15 rifle was named after its manufacturer, Armalite. The letters “AR” do not stand for “assault rifle” or “automatic rifle.”

Armalite sold the rifle’s design to another firearms manufacturer, Colt, in 1959. Four years later, the U.S. military selected Colt to manufacture a standard-issue model of the AR-15 — dubbed the M-16 — for soldiers in the Vietnam War.

The history of the AR-15 and how it became a symbol of American gun culture

The AR-15 was originally designed for civilian use. Years later, after purchasing the design from Armalite, the Colt company developed a military version known as the M-16. Colt later built the civilian semi-automatic version with M-16 stocks. The court goes on to show its ignorance regarding firearms and ammunition.

The AR-15 continues to use the same internal piston firing system and the same ammunition as the M16. … Its bullets leave the muzzle at a similar velocity of around 3000 feet per second, have a similar effective area target range of up to 875 yards, and deliver a similar amount of kinetic energy upon impact. …

Bianchi v. Brown

The court starts with pointing out that the AR-15 and M-16 use the same “firing system.” That merely means that both weapons fire, extract the spent casing, load a new round, and return to battery the same way. Specifically, there is a spring inside a tube (known as the buffer tube), that stops the bolt when it’s pushed back by the fired round, and pushes the bolt back into “battery,” or ready to fire. By the way, while the specifics may be different, this is how pretty much every semi-automatic weapon works. Either the recoil or gas from the fired round pushes a bolt or slide back into a spring, which then push it back into battery.

The court also makes the scary point that both the AR-15 and the M-16 have similar muzzle velocities. Of course the court fails to mention that more than three dozen rifle calibers have a muzzle velocity of 3,000 ft/min or more. In fact, of those three dozen calibers with at least 3,000 ft/min muzzle velocity, 2/3rds are faster than the .223 or 5.56mm used in the AR-15. In fact, the average “deer rifle” cartridge like a .308 or .30-06 has up to 50% more kinetic energy than the .223, and they’re not considered “assault weapons”.

Contemporary versions of the AR-15 and M16 have both incorporated additional combat-functional features. These include a flash suppressor that conceals the shooter’s position and facilitates night combat operations, and a pistol grip that enables fast reloading and accuracy during sustained firing. …

Bianchi v. Brown

While I am not an expert on “combat-functional features,” I can tell you that a flash suppressor comes in very handy if you happen to need to use your AR-15 for home defense at night or in a darkened room. Personally, I cannot see why fast reloading or accuracy would be a bad thing, whether it’s for a shooting competition or defending yourself and your family.

Most versions of the AR-15, like the M16, use detachable 20-round or 30-round magazines that increase the weapon’s effective rate of fire and are most useful in prolonged firefights with enemy combatants. … Both weapons are also compatible with up to 100-round magazines. … Other combat-functional features that the AR-15 and M16 share include a threaded barrel for the affixing of a flash suppressor, recoil compensator, or silencer; a barrel shroud to protect the shooter’s hands from excessive heat during sustained firing; and a rail integration system for the mounting of sights, scopes, slings, flashlights, lasers, foregrips, bipods, bayonets, and under-barrel grenade launchers or shotguns.

Bianchi v. Brown

In short, the court appears to not like the AR-15 because it’s a very flexible and capable platform. Lost on the court is the fact that there are plenty of legitimate reasons to sustain fire. Shooting competitions or having to defend yourself against a gang of criminals attempting to enter your house are just a few.

The firepower of the AR-15 and M16 is a key component of their “phenomenal lethality.” … Built to generate “maximum wound effect” and to pierce helmets and body armor, … AR-15 bullets discharge at around “three times the velocity of a typical handgun, ” … These higher velocity rounds “hit fast and penetrate deep into the body, ” creating severe damage.

Bianchi v. Brown

The idea of the AR-15 having “phenomenal lethality” again shows the ignorance of the court. The WWII workhorse, the M-1, used a .30-06 round, with similar muzzle velocity and 50% more kinetic energy than the .223 used by the AR-15. Add to that the fact the most rifle rounds have three times or more the muzzle velocity of a typical handgun, and it becomes quite clear that the court knows very little about firearms or what makes them dangerous. All the language about the lethality of the AR-15 is nothing but scare tactics and displays the utter ignorance of those trying to justify their infringement of your rights.

The Decision

Based on all of this, how did the court find?

The Framers recognized they could not foresee all the dangers that novel weaponry would someday pose, or the circumstances that would invoke the basic power of government to protect the governed. Maryland is a testament to their prescience, though other states with other characteristics and other approaches to this problem may be as well. We have before us nothing more or less than a challenge to one state’s regulation of assault weapons. Following Heller and Bruen, we hold that the Maryland statute is plainly a constitutional enactment.

Bianchi v. Brown

The Second Amendment was not drafted to limit the powers of the people so government could protect them. The Second Amendment was drafted to insure the American people could defend themselves, including against a government that went beyond its limited and enumerated powers. That’s why the Second Amendment protects the right to keep and bear “arms”:

Weapons of offense, or armor for defense and protection of the body.

Arms – Webster’s 1828 Dictionary

Any arm, and weapon of offense or armor for defense, is protected by the Second Amendment. The members of this court violated their oaths of office, first by placing decisions of the Supreme Court above the Constitution, the supreme law of the land, and second, by substituting their own preferences to the actual language of the law.

Conclusion

Are there weapons too dangerous for the people to use? If there are, then they are too dangerous for people in government to use as well. In fact, the very aspects of the AR-15 and the other arms listed as “assault weapons” are exactly why our right to own and carry them are protected by the Second Amendment.

The very atmosphere of firearms anywhere and everywhere
restrains evil interference –
they deserve a place of honor with all that’s good.

George Washington

The purpose of the Second Amendment is not to protect hunting or shooting sports, but to insure that the people have the tools necessary to restrain evil interference in their lives.

[T]he advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

James Madison – Federalist #46

The very fact that the American people are armed and can form militias attached to their states is a barrier to the enterprises of an ambitious government, even if the states and the people haven’t used them lately. These are a few of the quotes from our Founding Fathers about our right to keep and bear arms, but I think they are best summarized by Noah Webster:

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. “

Noah Webster

This court got it wrong, for many reasons. They made outrageous and erroneous claims about the weapons in question, they attempted to scare people into agreeing with their decision, and apparently denied the appellants justice by delaying the publication of their decision until after another panel gave them the answer they wanted. Worst of all, this court completely ignored the law and made one up for themselves, which is definitely an act of bad behavior. Because of their malfeasance, people in Maryland will be denied their rights protected by the Constitution. Some may even be arrested, jailed, and forever denied their rights as convicted felons, in large part because this court sought an outcome rather than applying the law. I only wish the members of this court could feel the shame they so richly deserve for this decision.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 18, 2024

• Does the Constitution matter any more?
• Is there something wrong with the Constitution?
• Does the Constitution need to be rewritten, or just reread?

I’ve spent a lot of time the last few years wondering why Americans do not celebrate Constitution Day. Then it occurred to me that we have spent so much time and effort trampling the document, along with the freedoms and liberties it’s designed to protect, We the People are simply too apathetic to celebrate the Constitution or too ashamed to do so. However, for those of us not embarrassed by our founding document, there is still hope to secure the blessings of liberty for ourselves and our posterity.

Treatment of the Constitution

Like most Americans, I went through school without learning very much about the Constitution. Sure, I learned about the three branches of government, but most of what I was taught about that fact was a lie. I learned about the Bill of Rights, too, but most of what I was taught about that was a lie as well. While I didn’t think that much about it at the time, this lack of education turns out to have been extremely dangerous.

One Generation Away from Extinction

Ronald Reagan warned us about the impact apathy has on freedom.

But freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. The only way they can inherit the freedom we have known is if we fight for it, protect it, defend it and then hand it to them with the well thought lessons of how they in their lifetime must do the same. And if you and I don’t do this, then you and I may well spend our sunset years telling our children and our children’s children what it once was like in America when men were free.

Ronald Reagan, Encroaching Control” (1961)

Think about the freedoms you enjoy. The ideals and concepts that are so much a part of the warp and woof of society, we’ve come to believe they are normal. However, a look at history shows that freedom is not the natural state of man, subjection is. A vast number of people throughout human history have been subjects of one form of autocratic rule or another. Kingdoms and empires are the norm. Greece tried a democracy, but they eventually conglomerated and centralized into another form of autocracy. Rome was as a republic, until Octavian became the first emperor. Then, in 1776, a group of freedom fighters declared independence from their mother country, winning their freedom in 1783. Then in 1787, in an attempt to stabilize the union they had created, they replaced the Articles of Confederation with a new Constitution. However, there were still those who sought to enslave their fellow countrymen.

Necessities Plea

Of course most of those who wanted to control others didn’t see it as enslaving them. Rather, I believe most of them simply thought they knew better how things should be done, and the necessity was for others to agree.

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.

William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

Every infringement on human freedom starts with the idea that the ends justify the means. What was true when William Pitt (the Younger) was speaking from the House of Commons in 1783 is just as true today. The need to deal with COVID was the necessity to take control of your health and, in fact, your life. The need to keep you safe is the claim behind every act to infringe on your right to defend yourself. And the need to make sure you have the “correct” facts stands squarely behind all the calls for censorship and your right to both express yourself and to hear what others think. And We the People simply go along, in large part I believe, because of our ignorance. And for many years, I included myself in that cabal of ignorance.

Fundamental Education

Several years ago I was in North Carolina, working with a couple of international teams. It was a presidential election year, so one day at lunch, someone asked about the electoral college. Since I was the only American on the teams, they expected me to explain this system to them. This was before I had started studying the Constitution, so I stumbled through what I had been taught it school, but ultimately I failed. Here I was, a natural born citizen of the United States, yet unable to explain to a curious group of foreigners how the President was elected. To my great shame, even that was not enough to get me to actually read the Constitution, which explains the process so well.

How can it be that so many born and raised in this country don’t know how its governments work? I believe the answer is simple: We don’t read the foundational laws that created it.

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

Why do you think the first Chief Justice of the United States thought it so important that everyone read and study the Constitution of the United States? He gives the answer in this quote: So we will sooner perceive when our rights are violated and be better prepared to defend and assert them.

Which to me, begs the question: If reading and studying the Constitution is so important, why do we not teach the rising generation to be free? After all, the Constitution isn’t taught in public or most private schools. Based on my research, it’s not even taught in our law schools, where you think it would be most important for it to be taught. So why isn’t this foundational document taught? I believe the evidence is plain, there’s only one reason the rising generation is not taught to be free.

No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffused and virtue is preserved. On the Contrary, when People are universally ignorant, and debauched in their Manners, they will sink under their own weight without the Aid of foreign Invaders.

Samuel Adams

How better to get the people to give up their rights and liberties without a fight? Without knowledge about our rights, and the tools we have to defend them, the people are more easily persuaded by the siren song of “necessity”. For generations the American people have allowed our public schools to train a more and more ignorant people. I’m not simply talking about our ever falling math and English test scores, I’m talking about people who do not know the Constitution, what their rights are, and certainly not how to defend and assert them.

For 25 years, Freedom Forum has surveyed Americans regarding their knowledge and opinions regarding the First Amendment. According to their last report, The State of the First Amendment: 2019 29% of those surveyed could not name a single freedom protected by the First Amendment. This was a vast improvement over the 2018 survey, where 40% could not recall a single freedom. Is it any wonder that the concepts of Freedom of Religion, Speech, and Press are no longer regarded to be as central to American society as they once were? We the People have blindly handed over the rising generations to government schools, without any supervision or oversight. Now we’re shocked, shocked that government schools did not teach our children to be free, but to be dependent on government.

Benjamin Franklin – Can we keep it?

After the Constitutional Convention in 1787, Benjamin Franklin was famously asked “Well, Doctor, what have we got, a republic or a monarchy?” His response should be ringing in the ears of every American in this day and age: “A republic, if you can keep it.”

Listen to politicians and pundits and you rarely hear the United States referred to as a republic anymore. We hear about threats to our “democracy,” champions of our “democracy,” and even the necessity of protecting our “democracy”. Which all shows how universally ignorant We the People have become about our nation. How are we supposed to keep our republic if we don’t even recognize it as one? Which may explain some of the calls for change we keep hearing in the media.

Take for example, the attempt to abolish the so-called “electoral college.” I say “so-called” because not only is the term “electoral college” nowhere in the Constitution, but there is not single gathering of the presidential electors.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President

U.S. Constitution, Amendment XII

Yet every four years we repeatedly hear about the “electoral college” from politicians, pundits, media, and everyday citizens. And based on what they are saying, they are just as ignorant about the Presidential election process as I was back when I tried to explain it to my international colleagues. Another example of our universal ignorance is the repeated discussion of the “national popular vote” for President. There is no national popular vote for President, and there never has been. Since the beginning of the republic, the states have elected the President, not the people.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:

U.S. Constitution, Article II, Section 1, Clause 2

Even the states have gotten into the game of making sure the American people are ignorant of their Constitution. Just eight years ago, the majority of state ballots stated that the people were voting for “electors for President and Vice President”. Four years ago, three-fourths of the states lied to their citizens, telling them they were voting for “President and Vice President.” However, the states still appointed electors that then voted for President and Vice President.

How can we keep a republic when we not only do not know who is electing people to what positions or even that we are a republic in the first place?

It Doesn’t Need to be Rewritten

It still amazes me to this day that roughly 90% of federal agencies are not constitutional. I found out while researching my book that 90% of federal departments and agencies are not exercising powers delegated to the United States by the Constitution, as the Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Now consider that while Congress generally passes a few hundred laws each year, these federal agencies promulgate thousands of rules each and every year. And each year those rules are having a greater impact on our society. As if that isn’t bad enough, based on some research I did on the website USASpending.gov, approximately 60% of every dollar the federal government spends is for unconstitutional purposes.

For these, and many other reasons, there have been repeated calls to amend the Constitution. Some have called for Congress to propose amendments to “fix” some of these problems. Joe Biden has asked Congress to propose an amendment stating that there is no Presidential immunity. Others have called for a convention for proposing amendments to do everything from imposing term limits to requiring a balanced budget. Many are concerned that such a convention would lead to an overall rewriting of the Constitution. The problem is, the Constitution doesn’t need to be rewritten, it just needs to be reread.

It Needs to be Reread

One of the major reasons I hear people talk about amending the Constitution is to rein in these out of control federal agencies, and especially the rules they keep promulgating. However, a quick reading of the Supremacy Clause and the Tenth Amendment proves we already have the tools to do so.

This 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;

U.S. Constitution, Article VI, Clause 2 – The Supremacy Clause

While this clause makes quite clear what is the supreme law of the land, it also allows us to determine what is not the supreme law of the land. Federal regulations are not listed as the supreme law of the land, so they are not. If fact, they are not law at all since, as Article I, Section 1 clearly states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

U.S. Constitution, Article I, Section 1

All power for making laws (legislative power), is vested in Congress. Since all federal departments and agencies are part of the executive branch, they are prohibited from making laws, or anything treated as such. And since the Constitution does not delegate the power to make laws, every piece of legislation where they claim to is, itself, unconstitutional. And according to Alexander Hamilton and several Supreme Court decisions, such acts are void and of no effect.

No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Federalist Paper #78

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

Marbury v. Madison, 5 U.S. 137 (1803)

An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.

Ex parte Siebold :: 100 U.S. 371 (1879)

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County :: 118 U.S. 425 (1886)

Since the Constitution did not delegate to Congress the power to create federal departments and agencies that enforce powers not delegated to the United States, all the legislation that created these agencies are unconstitutional and therefore void. Furthermore, all the legislation that appropriated monies to these agencies is also void, making their funding embezzlement.

But, Paul, if the Supreme Court has already weighed in on the legitimacy of these agencies, how can you claim they don’t legally exist? Go back to the Supremacy Clause and do you know what is not listed as the supreme law of the land? The decision of a court, any court, including the Supreme Court. I know, you’ve been taught that the Supreme Court is the final arbiter of what the Constitution says, but that simply is not true. Nowhere in the Constitution is any part of the United States delegated the power to be the final arbiter of its meaning, so according to the Tenth Amendment, that power is reserved. Who is that power reserved to? Since it is not prohibited by the Constitution to the States, and since the States are the only legitimate ratifiers of the Constitution and its amendments, they are the final word on what it means.

Conclusion

Ladies and Gentlemen, this is only the beginning. We have before us the questions of how to enforce the limited and enumerated powers of the United States, how do we balance the federal budget, and how do we handle the powers that the federal government has illegally assumed? Let’s face it, depending on where you start, we’ve been ignoring the Constitution between 100 to 200 years. That means a lot of mistakes have been made, and it is a giant mess to clean up. Regardless of how you would prioritize fixing this mess, I believe it starts with education:

I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.

Thomas Jefferson

Furthermore, I do not think we fix it through the public schools, or even through private schools. Go back to what John Jay said:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

It is up to us, to both diligently read and study the Constitution of the United States. I know it sounds daunting, but I can tell you from personal experience, it’s not nearly as hard as you’ve been led to believe. Only after we have a grasp of the fundamental and paramount law can we judge if other laws are complaint with it, if our states should abide by them, and if our representatives are fulfilling their oath to support it. We will also be in a position to teach the rising generation to be free. Note, I did not say have schools teach the rising generation to be free; that is part of our responsibilities as parents. Also, we’ll be able to prepare to defend and assert our rights, and do so legally and legitimately.

As we celebrate Constitution Day, I can think of no better way to honor those who pledged their lives, fortunes, and sacred honor to bring us freedom, than to reread the document they gave us to help keep the republic.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 13, 2024

• It’s never fun to be pulled over by the police, especially if you be legally carrying a firearm.
• Does the mere legal possession of a firearm qualify as probable cause for law enforcement to search your vehicle.
• If an officer searches you and your vehicle due to the legal possession of a firearm, are they entitled to qualified immunity?

Encountering law enforcement can be a nerve wracking situation, even if you’ve done nothing wrong. Imagine you’ve been pulled over to safely deal with something in your vehicle, then have a police officer pull up behind you. Nothing to worry about, right? You’ve done nothing wrong. Then imagine, after providing your drivers license, you’re pulled out of your car, searched, handcuffed, and “stuffed” into the back of the police cruiser while the officer searches your vehicle from stem to stern, even though you’ve done nothing wrong. Now imagine, after this harrowing abuse of power, the officer claims “qualified immunity” and asks the court to dismiss your case against him. That is what happened to Basel Soukaneh in Waterbury, CT. The current state of that case is certainly worth looking into.

Is legally carrying a firearm probable cause that you are committing a crime? An officer of the Waterbury, CT police department used Mr. Soukaneh’s legally posessed firearm as “probable cause” to both detain him and to search his vehicle. After Mr. Soukaneh filed a complaint in the U.S. District Court for Connecticut, the officer, Nicholas Andrzejewski asked to have the case dismissed because he, as a police officer, had qualified immunity. While the details of this case should disturb everyone, not just gun owners, the outcome so far should give us hope.

Background

I remember when I first started carrying a firearm. I thought everyone could see it and that every officer would give me a hard time about it. After I got used to carrying though, I didn’t think much about it anymore. Which is probably how Basel Soukaneh felt before November 12, 2018.

At approximately 8:43 p.m. on November 12, 2018, Basel Soukaneh stopped his car with the engine running on the side of a street in Waterbury, Connecticut. Soukaneh’s iPhone GPS, located in a holder mounted to the car’s dashboard, was frozen, and he stopped his car to fix it.

Soukaneh v. Andrzejewski

Here we have a responsible driver. He’s having problems with his phone, and rather than trying to fix it while driving, he pulls over. Unfortunately, where he pulled over may have started his encounter with the law.

The area “was dark and [known as] a high crime area well known for prostitution, drug transactions and other criminal activity.” … Within seconds after Soukaneh stopped his car, Officer Nicholas Andrzejewski approached the vehicle, knocked on the driver’s side window, and according to Soukaneh, loudly demanded Soukaneh’s driver’s license.

Soukaneh v. Andrzejewski

OK, unsavory part of town or not, it’s not uncommon for an officer to pull over to check on a possible driver in distress. There are many reasons for the officer to “loudly demand” Soukaneh’s drivers license, but it should not be a problem, right? After all, Soukaneh has done nothing wrong, only pulled over to deal with a slight technical problem.

The interior vehicle light was on, so although the area was dark, Andrzejewski could see the activity inside of the car when he approached the window. As Soukaneh complied and handed his license over, he also provided Andrzejewski with a facially valid firearms permit. While doing so, Soukaneh also disclosed to Andrzejewski that, per the permit, he was in lawful possession of a pistol that was located in the driver’s side door compartment.

Soukaneh v. Andrzejewski

So far, Soukaneh is doing things by the book, especially for a person carrying a firearm. He has the interior light on so the officer can see, he hands over his license, along with his firearms permit, and informs the officer that he was also in lawful possession of a firearm, including where it was at the time.

Following that exchange, Andrzejewski ordered Soukaneh out of the vehicle. According to Soukaneh’s description, Andrzejewski then violently “dragged [him] out of the car,” pushed him to the ground, yelled and screamed at him, handcuffed him, and pat-searched his person, recovering neither a weapon nor contraband.

Soukaneh v. Andrzejewski

Here’s where things start going wrong. Officer Andrzejewski has no reason to be concerned for his safety, since Mr. Soukaneh is being compliant with his commands. Instead, Officer Andrzejewski is treating Mr. Soukaneh as if he just caught a felon in the act of committing a crime. Still, officer Andrzejewski didn’t stop there.

Andrzejewski then “shoved [Soukaneh] into the rear area of [Andrzejewski’s police] cruiser,” and left Soukaneh “bent over and partially on the floor of the vehicle.” … Soukaneh remained “in that position, facing down and unable to see, until another police officer came along several minutes later and helped him sit up.”

Soukaneh v. Andrzejewski

I’m not familiar with the police guide in Waterbury, CT, but I doubt it includes roughly handling a compliant detainee, much less leaving him in an awkward position while handcuffed and therefore unable to right himself.

Once the other officer repositioned Soukaneh in the cruiser, Soukaneh saw Andrzejewski search his “entire car, both front and rear,” as well as the car’s trunk. … After the search, Andrzejewski returned to the cruiser and kept Soukaneh handcuffed and detained in it for an additional half hour, during which time “a group of seven to ten police officers gathered.”

Soukaneh v. Andrzejewski

Even after searching Mr. Soukaneh and his vehicle, finding nothing, officer Andrzejewski detains him for an additional half-hour, while additional officers gathered at the scene. You’d think officer Andrzejewski had captured a terrorist or other extremely dangerous person to draw such a crowd.

At one point, Andrzejewski began writing on his onboard computer and turned to a fellow officer who had arrived at the scene and asked, “What should I write him up for?” … The other officer laughed and the sergeant, who had also since arrived, told Andrzejewski what to write.

Soukaneh v. Andrzejewski

All of this and Officer Andrzejewski did not even have an articulable crime to charge Mr. Soukaneh. However, the officer still wanted to write him up, for doing nothing wrong. There was a footnote in the opinion stating they were not sure if a citation was even written for Mr. Soukaneh.

Both parties agree that at some unspecified point during Soukaneh’s handcuffed detention while in the vehicle, Andrzejewski ran a check on Soukaneh’s firearm permit and confirmed that the permit was validly held.

Soukaneh v. Andrzejewski

At some point in all of this craziness then, apparently no one knows when, officer Andrzejewski did actually confirm that Mr. Soukaneh’s firearm permit was valid.

Soukaneh was subsequently released.

Soukaneh v. Andrzejewski

Finally, after who knows how long, Mr. Soukaneh was released to go on his way.

The Case

Many people would have just been happy to leave and not follow up. Thankfully, Mr. Soukaneh was not one of them.

On July 25, 2019, Soukaneh filed a complaint in the United States District Court for the District of Connecticut. He principally alleged that Andrzejewski’s actions deprived him of his Fourth Amendment right to be free from “unreasonable and warrantless arrest and/or detention,” and “warrantless and unreasonable search and seizure of his person, vehicle and effects,” and sought compensatory and punitive damages pursuant to 42 U.S.C. §§ 1983 and 1988.

Soukaneh v. Andrzejewski

Mr. Soukaneh sued Officer Andrzejewski under two federal laws.

• 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. §1983

• 1983 provides for people to file a civil case against anyone who, under color of law, deprives them of a right protected by the Constitution or laws of the United States. In this case, §1988 appears to be more about collecting attorney and expert fees.

On December 31, 2020, Andrzejewski moved for partial summary judgment under Federal Rule of Civil Procedure 56(a), arguing that his actions were justified because he had reasonable suspicion and probable cause, or alternatively, that he was entitled to qualified immunity as to the claims asserted against him because if any rights were violated, they were not “clearly established.”

Soukaneh v. Andrzejewski

Officer Andrzejewski asked for the district court to dismiss the case because, he argued, he was entitled to qualified immunity, because he had reasonable suspicion and probable cause to treat Mr. Soukaneh as he had.

On August 6, 2021, the district court granted Andrzejewski’s motion for summary judgment in part and denied it in part. … The district court granted Andrzejewski’s motion for summary judgment with regard to the initial stop. It concluded that since “[Andrzejewski’s] basis for stopping [Soukaneh’s] vehicle was that the car was stopped at night in the roadway with the engine running in an area known for drugs and prostitution,” it was reasonable for Andrzejewski to believe that Soukaneh was committing a traffic violation, “giving him reasonable suspicion to stop [Soukaneh], check his driver’s license, and require him to step out of the car.”

Soukaneh v. Andrzejewski

If an officer sees a car stopped on the side of the road, especially in a part of town known for crime, is it reasonable to stop and ask the driver for his license? Yes. I’m not so sure about having him step out of the car, but if the officer had simply patted Mr. Soukaneh down, I doubt this case would have been filed. After all, Soukaneh did hand over his license when asked and even told officer Andrzejewski he was carrying. What about the rest of the “stop”?

However, the district court denied summary judgment on the remaining issues related to (1) handcuffing and detaining Soukaneh in the police cruiser, (2) searching the interior of Soukaneh’s car, and (3) searching the car’s trunk.

Soukaneh v. Andrzejewski

The district court, however, was not willing to let officer Andrzejewski off on the search and seizure.

The district court reasoned that Andrzejewski did not possess the requisite arguable probable cause to justify this conduct, explaining that a reasonable officer would not believe that Soukaneh was committing a crime, or “posed a meaningful threat of being ‘armed and dangerous’” for merely disclosing the presence of the firearm and its accompanying permit. … That was especially true in light of Soukaneh’s compliant and non-threatening behavior, and “the absence of any articulable reason for Defendant to believe the [gun] permit was counterfeit or otherwise invalid.”

Soukaneh v. Andrzejewski

Guess what, legally possessing a firearm is not probable cause that you’re armed and dangerous or that you are committing a crime. Remember when officer Andrzejewski asked another officer “What should I write him up for?” That should be a clue that you do not have probable cause that someone was committing a crime before you violated his rights. The district court pointed out just how absurd officer Andrzejewski’s claim was.

The district court concluded that “[a]ny contrary holding would make it practically impossible for the lawful owner of a firearm to maintain a Fourth Amendment right to privacy in his or her automobile.” … Accordingly, the district court determined that Andrzejewski was not entitled to qualified immunity on these issues, and thus denied Andrzejewski’s motion for summary judgment in remaining part.

Soukaneh v. Andrzejewski

Officer Andrzejewski appealed the court’s decision.

Qualified Immunity

Before we go on, let’s take some time and look at the court’s explanation of qualified immunity.

Qualified immunity shields officials “when [their] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly

Soukaneh v. Andrzejewski

The court has decided that government officers have some level of immunity from civil lawsuits. The qualification for such immunity is that their conduct does not violate clearly established rights protected by the Constitution or laws of the United States. The problem we run into is who “establishes” what a reasonable person should know?

“The Supreme Court has instructed that ‘[q]ualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’” Vega v. Semple

Soukaneh v. Andrzejewski

Notice, it’s not the Constitution or a law passed by Congress, but the Supreme Court that simply made up this “qualified immunity” because they thought it was necessary.

It’s an important principle of our legal system that law enforcement officers must have the necessary discretion to perform their required duties. That principle must be balanced, however, with a core tenet enshrined in the Fourth Amendment—the right to be free from unreasonable search and seizure. Thus, it has long been the “essential purpose of the proscriptions in the Fourth Amendment [] to impose a standard of ‘reasonableness’ upon the exercise of discretion by . . . law enforcement agents, in order ‘to safeguard the privacy and security of individuals against arbitrary invasions.’” Delaware v. Prouse

Soukaneh v. Andrzejewski

In other words, the actions of law enforcement when conducting a search or seizure must be reasonable. Based on my research, the law defines “reasonableness” as what a reasonable person would find reasonable. I was taught that you cannot define a word by itself. Then again, I am not a lawyer, thank God.

Soukaneh’s Detention

When officer Andrzejewski appealed the district court decision about summary judgment to the Second Circuit Court of Appeals, there were two main areas of this case the court needed to examine, Soukaneh’s detention and the search of his person and vehicle. We start with the detention.

Andrzejewski first argues that he did not violate Soukaneh’s constitutional rights by handcuffing and detaining him in the police cruiser for over half an hour because the detention should be “governed by the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968),” and Andrzejewski possessed reasonable suspicion of criminal activity to make a lawful “Terry stop.”

Soukaneh v. Andrzejewski

Ah, the infamous “Terry stop”, or as it’s colloquially known, “Stop and Frisk”. If you are asking yourself, “But did officer Andrzejewski do more than just stop and frisk Mr. Soukaneh?” You are correct.

Alternatively, Andrzejewski contends that even if the detention constituted an arrest, he possessed the requisite probable cause based on Soukaneh’s possession of a gun, irrespective of the facially valid firearms permit.

Soukaneh v. Andrzejewski

In other words, according to officer Andrzejewski, the legal possession of a firearm is probable cause for a person to be arrested. Apparently, to officer Andrzejewski, the legal possession of a firearm is itself a crime. Those aren’t my words, they are the words of officer Andrzejewski in court filings.

We disagree, however, that this was a Terry stop requiring only reasonable suspicion, because the facts before us demonstrate that Soukaneh’s detention was a de facto arrest for which probable cause was required but lacking. We further conclude that the detention violated Soukaneh’s clearly established rights.

Soukaneh v. Andrzejewski

OK, the court disagrees that this was a Terry stop, which only requires reasonable suspicion of criminal activity. I guess, if the officer had run Soukaneh’s license and firearm permit, found them valid, and gone on his way, that would have been considered a Terry stop. That’s not what officer Andrzejewski did.

It “has long been the law that ‘an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’” … A reasonable officer in Andrzejewski’s position who had a desire to check the validity of an individual’s licensing information would know that the circumstances here could barely justify a Terry stop, let alone a prolonged, handcuffed detention.

Soukaneh v. Andrzejewski

Officer Andrzejewski did not follow the law. This detention was more than temporary, lasting longer than necessary to check Mr. Soukaneh’s credentials. By placing Mr. Soukaneh in handcuffs and roughly placing him in the police cruiser for an extended period of time, Mr. Andrzejewski violated both the law and Mr. Soukaneh’s rights.

This is not a case in which there were circumstances, however insufficient to establish probable cause, that might suggest to a reasonable officer that there was something illegal about a suspect’s possession of a weapon. Here, there was literally no reason to believe that Soukaneh’s possession of the gun—whose presence Soukaneh freely acknowledged, and for which he provided a facially valid permit that Andrzejewski had no reason whatsoever to believe was forged or had been revoked—was unlawful.

Soukaneh v. Andrzejewski

In short, it appears quite apparent, by both the actions and words of officer Andrzejewski, that he arrested Mr. Soukaneh for the alleged crime of legally possession a firearm.

However, the record here, taken in the light most favorable to Soukaneh, supports a finding that the detention continued far longer than was necessary to effectuate any of Andrzejewski’s alleged reasons for his actions (legitimate and not)—demonstrating that he did not conduct the stop efficiently or in the least intrusive way possible. In the absence of facts suggesting some irregularity to justify the nature of the detention, the constitutional question and the unreasonableness of Andrzejewski’s actions here are “beyond debate” for a reasonable officer in Andrzejewski’s position.

Soukaneh v. Andrzejewski

Even if officer Andrzejewski’s reasons for detaining Mr. Soukaneh were legitimate, by not using the least intrusive methods to assuage his concern, he not only violated Mr. Soukaneh’s rights, but did so in a manner that is beyond debate.

The Searches of Soukaneh’s Vehicle and Trunk

The other area of concern for this court was the searches, both of Mr. Soukaneh’s vehicle and trunk.

Andrzejewski argues that there was no constitutional violation as to his search of the interior of Soukaneh’s car because it was a lawful Terry frisk of a car. He further argues that the warrantless search of Soukaneh’s trunk was lawful under the automobile exception to the warrant requirement.

Soukaneh v. Andrzejewski

Officer Andrzejewski claims that his search of the vehicle was legitimate because it was a “Terry frisk of the car”. However, as the court has pointed out, by the time officer Andrzejewski initiated his alleged Terry frisk of the car, he had already de facto arrested Mr. Soukaneh, having handcuffed him and placed him in his cruiser. And what about this “automobile exception”?

Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a “reduced expectation of privacy” and because a vehicle is inherently mobile.

Automobile Exception – West’s Encyclopedia of American Law, edition 2.

Notice that the automobile requires the officer to reasonably believe that the vehicle holds evidence of a crime, yet nothing in what Mr. Soukaneh said or did, other that stopping in a bad neighborhood, provided any reason to believe the vehicle held evidence of a crime. Furthermore, the automobile exception specifically excludes the trunk. Not only was there no risk of the vehicle leaving the scene with evidence since the operator and only occupant was cuffed and detained in the officer’s cruiser, the officer also detained Mr. Soukaneh for thirty minutes after conducting the search, in which there was plenty of time to call in for a warrant.

However, we reject Andrzejewski’s contentions that either of these searches were justified and that they did not violate clearly established rights. …

In addition to being necessary for Soukaneh’s de facto arrest, probable cause was also needed for the warrantless searches of his car. As discussed above, no such probable cause existed.

Soukaneh v. Andrzejewski

So officer Andrzejewski had no reasonable suspicion that the car contained evidence, and had no probable cause either to arrest Mr. Soukaneh or search his vehicle. The court notes, there is another way officer Andrzejewski’s search could be considered constitutional.

However, another inquiry for determining the lawfulness of a vehicle search during a traffic stop is whether an officer had a reasonable apprehension of danger—which may permit a Terry frisk of the automobile.

Soukaneh v. Andrzejewski

Did officer Andrzejewski have a reasonable apprehension of danger?

Andrzejewski argues that the Supreme Court’s holding in Michigan v. Long precludes us from finding that he violated Soukaneh’s constitutional rights when he searched the interior of Soukaneh’s car because of the known presence of the gun.

Soukaneh v. Andrzejewski

Yes, there was a gun present. In fact, Mr. Soukaneh told the officer that he legally possessed a firearm, produced his permit to have the firearm, and even told him where it was in the car, but that wasn’t good enough for officer Andrzejewski.

However, a straightforward analysis of Long leads us to conclude that this is not correct—the presence of a lawful weapon alone does not automatically make someone suspicious, nor a situation dangerous, such as would justify the Terry frisk of a car.

Soukaneh v. Andrzejewski

The lawful presence of a firearm alone does not make someone suspicious or dangerous. If that were true, every law enforcement officer would be considered suspicious and dangerous. Considering the actions not only of officer Andrzejewski, but of his fellow officers, including his sergeant, it is understandable why people are suspicious, not of legal gun owners, but of law enforcement.

Conclusion

After all of the bad things that happened two Mr. Soukeah, this case is a glimpse of vindication for him.

This is not a close case, about which reasonable officers could differ. The law as it stood at the time of the events in question left no doubt that a person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid.

Soukaneh v. Andrzejewski

This wasn’t even a close case. It’s not like officer Andrzejewski made a judgment call supported by the law. Rather, he ignored the law, apparently assuming that a lawful gun owner was, by definition, suspicious and dangerous. That type of thinking is what got officer Andrzejewski into trouble.

For those reasons, we hold that Andrzejewski’s alleged conduct violated Soukaneh’s constitutional rights where the detention constituted a de facto arrest without probable cause, and where case law from the Supreme Court and this Circuit clearly established Soukaneh’s right to be free from such a detention under the circumstances.

Soukaneh v. Andrzejewski

I agree with the court, but I would go one step further. Yes, office Andrzejewski violated Mr. Soukaneh’s rights protected by the Constitution of the United States. Officer Andrzejewski’s actions were not only reprehensible, but were criminal.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;

18 USC §242

Officer Andrzejewski clearly deprived Mr. Soukaneh of rights protected by the Constitution and laws of the United States, and did so under color of law. Furthermore, since office Andrzejewski allegedly roughly removed Mr. Soukaneh from his vehicle and tossed him into the back of his cruiser, It is quite possible that Mr. Soukaneh was injured by the illegal actions of officer Andrzejewski, triggering another part of §242.

and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;

18 USC §242

It seems to me that officer Andrzejewski should face criminal charges for his actions, though that was not the question before this court. The question was, did the district court err by denying officer Andrzejewski’s motion of summary judgment and dismissal under qualified immunity. Thankfully not.

For the foregoing reasons, we AFFIRM the judgment of the district court

and REMAND the case for further proceedings consistent with this opinion.

Soukaneh v. Andrzejewski

That doesn’t mean Mr. Soukaneh’s ordeal is over. This decision merely means that the district court can proceed with Mr. Soukaneh’s lawsuit based on the facts at hand. Mr. Soukaneh has a long way to go before he finds out if he will receive a favorable redress of his grievance. Even if Mr. Soukaneh wins his day in court, this does not mean that officer Andrzejewski will be personally punished for his crime. Since this is a civil lawsuit, the city of Waterbury, CT will pay any judgments against officer Andrzejewski. Unless a criminal complaint is filed, there will be nothing to prevent officer Andrzejewski from doing this to other law-abiding citizens who are not only exercising their right to keep and bear arms, but complying with the unconstitutional and therefore invalid laws Connecticut has put place.

If complying with the law is not enough to keep you from police harassment, how can we call ourselves a nation of laws, not men?

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 31, 2024

• Under what conditions can you legitimately loose your right to keep and bear arms?
• If you wanted to challenge federal law that prohibited your right to keep and bear arms, would you want Zackey Rahimi to be the face of your case?
• The case Rahimi v. United States challenged 18 U.S.C. §922(g)(8) which prohibits someone subject to a domestic violence protection order from possessing a firearm.

There’s an adage in the legal profession: “Hard cases make bad law.” It can also be said that bad cases make bad law, and the case of United States v. Rahimi is one of those bad cases. The question is legitimate: Does 18 U. S. C. §922(g)(8), which prohibits a person under a domestic violence restraining order from possessing a firearm or ammunition, violate the Second Amendment? For those of you who are thinking the answer is yes, Zackey Rahimi is not the person you would want leading this case.

Background

Federal limitations on gun possession have been a sticking point among the Second Amendment community for decades. I know several groups and law firms that have been looking for the perfect case to challenge these laws. Instead, Zackey Rahimi got his case to the Supreme Court first.

Respondent Zackey Rahimi was indicted under 18 U. S. C. §922(g)(8), a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm.

United States v. Rahimi

Zackey Rahimi was indicted under §922(g)(8), meaning he is accused of possession of a firearm while subject to a domestic violence restraining order. This law requires that several conditions are met regarding the restraining order before §922(g)(8) can be enforced.

In particular, the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child, §922(g)(8)(C)(i), or “by its terms explicitly prohibit[ ] the use,” attempted use, or threatened use of “physical force” against those individuals, §922(g)(8)(C)(ii).

United States v. Rahimi

Based on that, the first question that needs to be asked is: Did the restraining order against Mr. Rahimi meet those requirements?

Rahimi concedes here that the restraining order against him satisfies the statutory criteria, but argues that on its face Section 922(g)(8) violates the Second Amendment.

United States v. Rhyme

Even Mr. Rahimi concedes that the restraining order against him meets the requirements of §922(g)(8). However, he contends that §922(g)(8) facially violates the Second Amendment. There’s a bit of a twist to this case though:

The District Court denied Rahimi’s motion to dismiss the indictment on Second Amendment grounds. While Rahimi’s case was on appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen.

United States v. Rahimi

After the District Court denied Rahimi’s motion, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen. This is important because in Bruen the court stated that a law that falls within the Second Amendment is unconstitutional unless there is evidence that it fits within traditional firearm regulations at the time the Bill of Rights and the Fourteenth Amendment were adopted. This led to a different decision by the Circuit Court.

In light of Bruen, the Fifth Circuit reversed, concluding that the Government had not shown that Section 922(g)(8) “fits within our Nation’s historical tradition of firearm regulation.”

United States v. Rahimi

Opinion

Which brings us to the decision of the vast majority of the court.

Held: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.

United States v. Rahimi

Eight of the nine justices agreed with this decision. Six of those eight, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson either filed or joined in concurrences. A 8-1 decision is fairly rare at the Supreme Court, even if six of the eight disagree with some part of how the court got to it.

Since the Founding, the Nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here, Section 922(g)(8) fits within this tradition.

United States v. Rahimi

Yes, there have been laws in our nation’s tradition that stop individuals who threaten to harm others. But does §922(g)(8) meet that standard?

Rahimi’s facial challenge to Section 922(g)(8) requires him to “establish that no set of circumstances exists under which the Act would be valid.” … Here, Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s own case. Rahimi has been found by a court to pose a credible threat to the physical safety of others, … and the Government offers ample evidence that the Second Amendment permits such individuals to be disarmed.

United States v. Rahimi

Even Rahimi concedes that the restraining order against him meets the §922(g)(8) standard, which includes a finding that “such person represents a credible threat to the physical safety of such intimate partner or child . . . .”

Barrent Concurrence

As I mentioned, six of the eight justices either filed or joined a concurrence. While all six of those justices agree with the opinion, noting relatively minor differences in their concurrences, Justice Barrett did make one statement I think worth commenting on.

Despite its unqualified text, the Second Amendment is not absolute. It codified a pre-existing right, and preexisting limits on that right are part and parcel of it.

United States v. Rhyme

Even though Justice Barrett notes that the text of the Second Amendment is unqualified, she wants to put qualifications on it. Here’s the problem I have with that: Justice Barrett is simply ignoring the text of the Constitution she doesn’t like. Yes, the Second Amendment is unqualified, just as the First, Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth are, but that doesn’t mean there are not situations where an individual cannot exercise their rights. As Benjamin Franklin, writing as Silence Dogood said:

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.

Silence Dogood, No. 8, 9 July 1722

The limitations of the exercise of our rights does not extend to harming or controlling another. For example, in the case Schenck v. United States, the Supreme Court recognized that a person could not use the First Amendment to defend false claims meant to hurt others, also known as the “fire in a crowded theater” situation. And just as a person cannot use their freedom of speech to harm others, neither can someone use their right to keep and bear arms for such a purpose. And according to Benjamin Franklin, that is the only check it ought to suffer.

Thomas Dissent

While Justice Thomas was the only dissenter, his dissent is worth reading.

After New York State Rifle & Pistol Assn., Inc. v. Bruen, … this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent.

United States v. Rahimi

Unlike the rest of the court, Justice Thomas says there is not historical analog to justify §922(g)(8).

Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence.

United States v. Rahimi

As Justice Thomas points out, there is no requirement that a person be found guilty of domestic violence before §922(g)(8) can be enforced. This makes it different than other parts of §922(g).

It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections. … And, §922(g)(8) does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order.

United States v. Rahimi

If both parties seek a restraining order, would said order include a finding of a credible threat to the physical safety of one of the parties?

In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders. … There is no hearing or opportunity to be heard on the statute’s applicability, and a court need not decide whether a person should be disarmed under §922(g)(8). The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.

United States v. Rahimi

Justice Thomas says that §922(g)(8) strips a person of a right protected by the Constitution without due process. It’s the due process that’s important, because the Fifth Amendment states;

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

While there is no hearing regarding §922(g)(8), the protective order that triggers it does require the person be notified and have the opportunity to participate in the hearing. Does that satisfy the due process requirement?

Conclusion

This case seems to be full of contradictions. On the one hand, we have §922(g)(8), which states that someone who has a court order of protection because of a finding of a credible threat to the physical safety of another, cannot lawfully possess a firearm or ammunition. However, even though the subject of the order must have the opportunity to participate in a hearing before the order is issued, there is apparently no requirement that they receive due process during the hearing. They don’t have the right to counsel, to confront their accuser, or to compel witnesses in their favor. It’s not as if a disgruntled spouse or neighbor hasn’t accused someone of being a physical threat without any threat being made. And just how does the federal government get to use the actions of state courts to claim a justification of a criminal statute? Since the Second Amendment prohibits the infringement on the right of a person to keep and bear arms, shouldn’t it be the court finding the facts of this case that determines if the punishment is just for the subject? After all, if a judge issued an order depriving someone of a right protected by the Constitution without due process, they would be violating the Constitution.

I’m also a bit disappointed with this case as a whole. Yes, Mr. Rahimi deserves his grievance be heard, but of all the cases of infringement on the Second Amendment by court order, I would have preferred a less unsavory subject. After all, he did agree that he posed a threat of physical harm to an intimate partner.

There are two subsections of §922 I would like to see brought before the court.

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

18 U.S.C. §922(g)(1)

There are plenty of non-violent crimes through out the states and federal government that are punishable by a year or more of imprisonment. Should someone be deprived of their right to keep and bear arms for being convicted of a non-violent crime, simply because of how long a sentence they could have received?

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

18 U.S.C. §922(g)(9)

So if someone is convicted of felony domestic violence, they are not subject to §922? How does that make any sense?

While part of me recognizes that people who are threatened don’t want those who threaten them to have legal access to firearms, I also recognize that does not always prevent the subject from actually having firearms. At the same time, I recognize that the accused is not the convicted, and we have a policy of innocent until proven guilty in this country.

Where do I come down on this decision? I would have liked to see a discussion on the constitutionality of the federal government adding punishments to state crimes and court orders. Reluctantly, based solely on the facts of the case, I have to come down with the majority. In the competition between due process and physical safety, our right to life must take precedence. While the temporary loss of rights is an infringement, I think the law strikes a balance by requiring that the accused be able to participate in the hearing, and that a judge comes to a finding that they represent a credible threat to the physical safety of another. That said, I am saddened by the fact that the court order is just a piece of paper, and can do nothing to prevent someone found to be a threat from actually acquiring a firearm and sadly, using it.

While not within the jurisdiction of the court, I think §922(g), and in fact other parts of §922, have some serious constitutional problems. I see no power delegated to the United States to add federal penalties to state laws, nor to regulate firearms ownership, only foreign and interstate commerce.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 26, 2024

• The Supreme Court once said the Bill of Rights doesn’t apply to the states.
• Then again, the Supreme Court also said that the Fourteenth Amendment incorporated the Bill of Rights against the states.
• Are either of those statements true?

There are certain lies told about the Constitution that repeatedly grind into me like salt in an open wound. One of those is the repeated statement that “The Fourteenth Amendment incorporates the Bill of Rights, including the First Amendment, to the states.” By which, the speaker usually means that, before the Fourteenth Amendment, none of the ten amendment in the Bill of Rights could be applied to the states. That, ladies and gentlemen, is a flat out lie, and I will prove it here.

Amending the Constitution

We all know that the Bill of Right are the first ten amendments to the Constitution. Therefore, to understand the scope of their effectiveness, we have to understand how the Constitution is amended. That process is laid out in Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

U.S. Constitution, Article V

There are two steps to amend the Constitution. First, an amendment must be proposed. This can be done either by Congress or by a convention of the states for the purpose for proposing amendments. Once an amendment is proposed, it’s sent to the states where it can be ratified in one of two ways, either by state legislatures or by conventions in the states. In either case, there must be a three-fourths majority of states that ratify the amendment before it becomes a part of the Constitution, as Article V states.

which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution

U.S. Constitution, Article V

That means, when when three-fourths of the states had ratified these ten amendments in 1791, they were as much a part of the Constitution as the original seven articles, and the 17 amendments that were later ratified.

The Marshall Rebellion

In 1833 the case Barron v. Mayor & City Council of Baltimore was decided by the Supreme Court. Writing the opinion was Chief Justice Marshall, who said:

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

Barron v. Mayor & City Council of Baltimore

In the mind of the court, since the Constitution established the government of the United States, and not the governments of the Several States, then any general statement it contained logically applied only to what we now call the federal government. Needless to say, that was not the position of the other side.

The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court.

Barron v. Mayor & City Council of Baltimore

According to the court, the fact that each clause of Article I, Section 10 specifically states that “No State shall..” is proof that the court is correct in its opinion.

The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that “no bill of attainder or ex post facto law shall be passed.” No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that “no State shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.

Barron v. Mayor & City Council of Baltimore

Isn’t it amazing that the court used terms like “obviously intended” and “the demonstration is complete” to demonstrate that their position is correct, yet not a single clause they quote, nor any other in the Constitution, actually states or infers that it’s purpose was solely for the central government unless stated otherwise. Which brings us to the Bill of Rights.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.

Barron v. Mayor & City Council of Baltimore

I would say that is a very big if, especially when you consider more than just the cherry-picked clauses that court has used. Let’s start with the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

U.S. Constitution, Preamble

Why did We the People ordain and establish this Constitution for the United States of America? Not, as the court stated “for their own government”, but for a more perfect union. A union of what? A union of states. How is this Constitution supposed to insure domestic tranquility or provide for the common defense if it is not applicable to the states? Yes, the Constitution created the government of the United States, but that is not all that it did. Let’s take a look at Article IV, Section 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

U.S. Constitution, Article IV, Section 2

Tell me, how is a citizen of one state supposed to be entitled to all privileges and immunities of citizens in the several states if that one state is not bound, under the Constitution, to do so? How is a person charged in one state to be delivered up to another state unless the Constitution binds them to do so? And how is an escaped person supposed to be delivered up unless the states are bound by the Constitution to do so? These statements may not be as general as those the court referenced in Article I, Section 9, but there’s more.

This 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S Constitution, Article VI, Clause 2

Article VI, Clause 2, known as the Supremacy Clause, not only clearly states that the Constitution is the supreme law of the land, but that the judges in every state are bound to it. In fact, Clause 3 adds to that thought:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

U.S Constitution, Article VI, Clause 3

Not only are the members of the federal government required to be bound by oath or affirmation to support the Constitution, but the members of each state’s legislature and their executive and judicial officers are as well. If the Constitution is supreme even over the constitution and laws of any state, why would anyone assume that a general statement in the document would not be binding against the states?

Also, if Chief Marshall and the court are allowed to infer by language, let me do a little myself. While, according to the Preamble, the people did ordain and establish this Constitution for the United States of America, are the people not parties to the compact?

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

U.S. Constitution Article VI

The states, as the ratifying entities, are the parties to this compact, this agreement between the states. Don’t you think, if they intended to be excluded from part of it, they would have said so somewhere? Yet I can find nothing in the language of the Constitution, or the debates in the convention, that even hinted at the idea that this document was primarily to protect us only from the actions of the federal government unless otherwise stated.

There’s one more thing, but that will have to wait until we get the to First Amendment below.

The Fourteenth Amendment

When people talk about the Fourteenth Amendment “incorporating” the Bill of Rights against the states, I can only reasonably surmise they’re talking about Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

Do you see any language in the amendment stating that the Bill of Rights, the first ten amendments, were once somehow not a full part of the Constitution, but now are? Could they mean “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”? But how is that functionally different from “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” in Article IV, Section 2, Clause 1 that I cited before? In fact, nowhere in the Fourteenth Amendment does it claim to change the scope of any other part of the Constitution. If anything, much of Section 1 of the Fourteenth Amendment seems to overturn the mistaken decision by the Barron court.

The First Amendment

There is one part of the Bill of Rights that patently applies only to the federal government: The First Amendment,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, Amendment I

Unlike the other nine amendments, the first five words of the First Amendment are, “Congress shall make no law….” Congress is the proper name of the federal legislature. Therefore, only that body is restricted by the First Amendment. And since the rest of the federal government was either created by Congress or acts in response to laws created by Congress, the First Amendment only applies to the federal government. There is no language in the Fourteenth Amendment that modifies the First Amendment. Before you start worrying about your precious freedoms of religion, speech, press, assembly, and petition, recognize that each and every state has their own version of the Bill of Rights which protects these rights, if in different details and forms.

Which brings me back to the Barron court, which claimed that any general statement in the Constitution was to be applied only to the central government, what we now call the federal government. If that were true, why did the members of the very first Congress, many of whom were involved with the the Constitutional Convention or the Ratification Debates for the Constitution, feel the need to call out Congress for what became the First Amendment? After all, neither the President nor the federal courts can make federal law, but only the federal legislature. So if, as the court and Chief Justice Marshall contend, “No Bill of Attainder or ex post facto Law shall be passed,” obviously applies only to the federal government, why wouldn’t “No law respecting an establishment of religion,” as well? I contend that it’s obvious that in an agreement between the states, general statements apply to all parties except when the language or context identifies a specific entity.

Conclusion

When I sat down and read the Constitution for the first time, I was struck by two things. First, how much I had not been taught in school. Second, how much of what I had been taught was absolutely wrong. This idea that the Bill of Rights did not apply to the states until 1868 and the ratification of the Fourteenth Amendment is one of those things we’re taught that’s absolutely false.

I’m not sure why the Barron court wanted to detach the Constitution from the parties that ratified it, but they did, and without any concrete evidence to support their position. Here we are, almost 200 years later, and the fiction created by the Barron court still persists today. No, the Barron court did not attempt to excise the Bill of Rights from the rest of the Constitution, but as we know, judges play a form of telephone with their opinions. One judge says one thing, then another judge interprets that to mean something slightly different, and this goes on and on until the judges believe the Constitution says the exact opposite of those words on parchment.

This toxic separation of the Bill of Rights and the States is a perfect example of the need for We the People to once again read and study the Constitution of our country. The only way we can be the land of the free is to be the home of people brave enough to read our founding documents, then apply them to our lives today.

So the next time someone tells you the Bill of Rights doesn’t apply to the states, or that it didn’t until the Fourteenth Amendment, ask them to show you evidence of why that is so. If they claim Barron v. Baltimore, you have an answer that can prove them wrong.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 13, 2024

• DOJ has charged numerous January 6th defendants with corruptly impeding the certification of the 2020 presidential election results.
• Furthermore, SCOTUS found that the DOJ was wrong to file those charges.
• What does this SCOTUS decision mean for the other J6 defendants?

After the January 6th riots the U.S. Department of Justice began charging anyone they thought had participated, but not just for the crimes they committed. According to the DOJ, anyone who showed up at the Capitol had corruptly obstructed or impeded an official proceeding, which was punishable by a fine and imprisonment for up to 20 years. Many claimed that the DOJ was overcharging these J6ers, misusing the law to punish dissenters. When it comes to 18 U. S. C. §1512(c), SCOTUS agreed.

Certifying the Presidential Elections

Before we get into this case, there is a fundamental error in all the parts of this opinion. Chief Justice Roberts wrote in the opinion:

On that day, Congress convened in a joint session to certify the votes in the 2020 Presidential election.

Fischer v. United States

Justice Jackson wrote in her concurrence:

On January 6, 2021, an angry mob stormed the United States Capitol seeking to prevent Congress from fulfilling its constitutional duty to certify the electoral votes in the 2020 Presidential election.

Fischer v. United States

And Justice Barrett wrote in her dissent:

At the time, Congress was meeting in a joint session to certify the Electoral College results.

Fischer v. United States

Do you see the mistake? Congress does not certify the votes of the Presidential Electors.

the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

U.S. Constitution, Amendment XII

Congress is not present to certify the election, but to observe the votes being counted. The two houses of Congress do have one additional function they may need to perform though:

and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. …

and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President;

U.S. Constitution, Amendment XII

While not directly related to the facts of this case, the fact that all nine justices of the Supreme Court placed their name on some part of this opinion that falsely claims that Congress has the authority to certify, and by extension overrule, the votes of the presidential electors, should give us all of pause. Now consider how many filings, briefs, complaints, and opinions have been filed as this case worked its way through our judicial system with the lie as part of it. If you are going to charge someone with a crime, the least you can do is get the circumstances around the alleged crime correct.

Background

With all of the controversies, allegations, and shouting back and forth, I’ve seen one question come up time and time again. Are the J6ers being overcharged by the Department of Justice? One of those accused of a crime punishable by up to 20 years in prison is Joseph Fisher.

According to the complaint, about an hour after the Houses recessed, Fischer trespassed into the Capitol and was involved in a physical confrontation with law enforcement. Fischer claimed in Facebook posts that he “pushed police back about 25 feet,” and that he “was inside the [Capitol] talking to police.” … Body camera footage shows Fischer near a scrum between the crowd and police who were trying to eject trespassers from the building.

A grand jury returned a seven-count superseding indictment against Fischer. Six of those counts allege that Fischer forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol, among other crimes. … Those six counts carry maximum penalties ranging from six months’ to eight years’ imprisonment.

Fischer v. United States

Mr. Fischer has been charged with a total of seven counts, six of which range from relatively minor to moderately serious. However, this case revolves around a single count of the indictment.

In Count Three, the only count now before us, the Government charged Fischer with violating 18 U. S. C. §1512(c)(2). Fischer moved to dismiss that count, arguing that the provision criminalizes only attempts to impair the availability or integrity of evidence. The District Court granted his motion in relevant part. It concluded that the scope of Section 1512(c)(2) is limited by subsection (c)(1) and therefore requires the defendant to “‘have taken some action with respect to a document, record, or other object.’” …

A divided panel of the D. C. Circuit reversed and remanded for further proceedings. Judge Pan, writing for the court, held that the word “otherwise” in Section 1512(c)(2) means that the provision unambiguously covers “all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by §1512(c)(1).” … Judge Walker concurred in part and concurred in the judgment because he read the mens rea element of the statute—“corruptly”—as requiring a defendant to act with “an intent to procure an unlawful benefit.”

Fischer v. United States

The crux of the matter is the third count in the indictment, a violation of 18 USC §1512(c)(2). What is §1512(c)(2)? Let’s start with a little context.

• 1512. Tampering with a witness, victim, or an informant

18 USC §1512

Section 1512 is about tampering with a witness, victim, or informant. Within this section we find subsection (c):

(c) Whoever corruptly-

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

18 USC §1512

While this may seem to be a small point, the context of the law matters. In this case, it all comes down to the scope of one word, “otherwise”.

The controversy before us is about the scope of the residual “otherwise” clause in Section 1512(c)(2). On the one hand, Fischer contends that (c)(2) “applies only to acts that affect the integrity or availability of evidence.” …. On the other, the Government argues that (c)(2) “capture[s] all forms of obstructive conduct beyond Section 1512(c)(1)’s focus on evidence impairment.”

Fischer v. United States

Isn’t it amazing how 20 years of this man’s life, and the life of others who have been similarly charged, can come down to the meaning and context of a single word.

The Case

The history of this law goes all the way back to the early 2000’s. After the Enron and other accounting scandals, U.S. Senator Paul Sarbanes and U.S. Representative Michael G. Oxley sponsored a bill in 2002 called Sarbanes-Oxley or “SOX”.

The Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” 18 U. S. C. §1512(c)(1). The next subsection extends that prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” §1512(c)(2).

Fischer v. United States

There’s a bit of a problem already with this part of the Sarbanes-Oxley Act. Subsection (c)(1) criminalizes the destruction of records, but is part of a section of the law regarding tampering with witnesses, not records. They could have placed this language in §1510 Obstruction of criminal investigations or ∞1519 Destruction, alteration, or falsification of records in Federal investigations and bankruptcy. Instead, they put this document tampering language in a section of the law dealing with witness intimidation.

Petitioner Joseph Fischer was charged with violating §1512(c)(2) for his conduct on January 6, 2021. On that day, Congress convened in a joint session to certify the votes in the 2020 Presidential election. …

This breach of the Capitol delayed the certification of the vote. The criminal complaint alleges that Fischer was among those who invaded the building. Fischer was charged with various crimes for his actions on January 6, including obstructing an official proceeding in violation of §1512(c)(2).

Fischer v. United States

The breach of the Capitol did not delay the certification of the vote because, as I’ve already pointed out, Congress doesn’t certify the vote. The breach did delay the counting of the votes, but while Mr. Fischer’s actions may have extended the delay, it did not cause it. As the complaint stated, Mr. Fisher did not enter the capitol until an hour after they had recessed. However, that is not why Mr. Fisher challenged this count of his indictment.

He moved to dismiss that charge, arguing that the provision criminalizes only attempts to impair the availability or integrity of evidence. The District Court granted his motion in relevant part. A divided panel of the D. C. Circuit reversed and remanded for further proceedings.

Fischer v. United States

Which brings us to the critical word “otherwise.”

(1) Section 1512(c)(1) describes particular types of criminal conduct in specific terms. The purpose of (c)(2) is, as the parties agree, to cover some set of “matters not specifically contemplated” by (c)(1). … Perhaps Congress sought to criminalize all obstructive acts in §1512(c), and having named a few examples in (c)(1), devised (c)(2) to prohibit the rest. But (c)(2) could have a narrower scope if Congress designed it to fill inadvertent gaps in the focused language of (c)(1).

Fischer v. United States

Did Congress mean to criminalize all obstructive acts, or was subsection (c)(2) only meant to fill in any gaps they left in (c)(1)? How does a court perceive the intent of Congress?

One way to discern the reach of an “otherwise” clause is to look for guidance from whatever examples come before it. Two general principles are relevant. First, the canon of noscitur a sociis teaches that a word is “given more precise content by the neighboring words with which it is associated.” Unit… And under the related canon of ejusdem generis, a general or collective term at the end of a list of specific items is typically controlled and defined by reference to those specific items that precede it. … These approaches to statutory interpretation track the common sense intuition that Congress would not ordinarily introduce a general term that renders meaningless the specific text that accompanies it.

Fischer v. United States

Have you ever wondered why attorneys and judges like to use fancy latin sayings rather than simple English? If you look at the definitions of both “noscitur a sociis” and “ejusdem generis”, their meanings are pretty close. You define an ambiguous word by it’s context.

Under these principles, the “otherwise” provision of §1512(c)(2) is limited by the list of specific criminal violations that precede it in (c)(1). If, as the Government asserts, (c)(2) covers all forms of obstructive conduct beyond §1512(c)(1)’s focus on evidence impairment, Congress would have had little reason to provide any specific examples at all. And the sweep of subsection (c)(2) would swallow (c)(1), leaving that narrower provision with no work to do.

Fischer v. United States

I’ve seen this argument before with the General Welfare Clause. If the framers of the Constitution meant the General Welfare Clause to authorize pretty much anything Congress thought was good, why follow it with 17 specific powers?

(2) It makes sense to read (c)(2) as limited by (c)(1) in light of the history of the provision. The Enron accounting scandal exposed a loophole in §1512. At that time, the statute imposed liability on anyone who, among other things, corruptly persuaded another person to shred documents. But it curiously failed to impose liability on a person who destroyed records himself. The parties agree that Congress enacted §1512(c) as part of the broader Sarbanes-Oxley Act to plug this loophole. It would be peculiar to conclude that in closing the Enron gap, Congress created a catch-all provision that reaches beyond the scenarios that prompted the legislation. …

By reading (c)(2) in light of (c)(1), the Court affords proper respect to “the prerogatives of Congress” in carrying out the quintessentially legislative act of defining crimes and setting the penalties for them.

Fischer v. United States

As Chief Justice Roberts writes in the opinion, (c)(2) of §1512 must be read in the light of (c)(1), leading to the following conclusion.

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. … The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

It is so ordered.

Fischer v. United States

So Mr. Fischer’s case goes back to the Circuit Court to be heard again. This time though, the Circuit Court is to follow the opinion of the Supreme Court and read subsection (c)(2) in light of (c)(1).

Concurrence

Justice Jackson wrote a concurring opinion. While she comes to the same conclusion as the majority, she also brings up a couple of interesting points.

On January 6, 2021, an angry mob stormed the United States Capitol seeking to prevent Congress from fulfilling its constitutional duty to certify the electoral votes in the 2020 Presidential election. … The peaceful transfer of power is a fundamental democratic norm, and those who attempted to disrupt it in this way inflicted a deep wound on this Nation. But today’s case is not about the immorality of those acts. Instead, the question before this Court is far narrower: What is the scope of the particular crime Congress has outlined in 18 U. S. C. §1512(c)(2)?

Fischer v. United States

Yes, the peaceful transfer of power is fundamental to our norms. However, the transfer should not only be peaceful, but must be legal. While a small group of agitators did storm the capitol, the question that seems to be lost is whether their purpose was to disrupt the peaceful transfer or power or to disrupt the illegal transfer or power? This gets to the mens rea of §1512 (c).

(c) Whoever corruptly-

18 USC §1512

“Mens rea” is latin for “Criminal intent”. While I agree that many who entered the capitol on January 6th committed trespass, some even vandalism, was the intent of the group as a whole corrupt? If you have evidence that the elections in many of the states had violated state law, then it was the elections that were corrupt, and attempting to stop their use was both ethical and moral. If, as I had shown at the time, several of the states had appointed presidential electors in a manner other than the one directed by their legislature, then those electors were corruptly appointed and should not be counted. Working to prevent that was not a corrupt attempt to impede an official proceeding, but an attempt to stop the corruption of that proceeding.

Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis, … and even when the conduct alleged is indisputably abhorrent,

Fischer v. United States

Justice Jackson is correct, the rule of law requires courts to follow the law as written. There is no exception clause for national crisis or emergency. I only wish the courts would have remembered that when so-called “national emergencies” had been invoked in our recent past.

Dissent

Justice Barrett wrote a dissent which Justices Kagan and Sotomayor joined. In her dissent, Justice Barrett wrote.

Joseph Fischer allegedly joined a mob of rioters that breached the Capitol on January 6, 2021. At the time, Congress was meeting in a joint session to certify the Electoral College results. The riot forced Congress to suspend the proceeding, delaying it for several hours.

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. So why does the Court hold otherwise?

Because it simply cannot believe that Congress meant what it said. Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway. The Court, abandoning that approach, does textual backflips to find some way—

Fischer v. United States

So why do Justices Barrett, Kagan, and Sotomayor not understand that taking a subsection of law out of context is not only judicial malpractice, but certainly bad behavior? I believe it is because it does not get them to the outcome they desire: The severe punishment of those who would challenge an election with physical intervention.

There is no getting around it: Section 1512(c)(2) is an expansive statute. Yet Congress, not this Court, weighs the “pros and cons of whether a statute should sweep broadly or narrowly.” … Once Congress has set the outer bounds of liability, the Executive Branch has the discretion to select particular cases to prosecute within those boundaries. By atextually narrowing §1512(c)(2), the Court has failed to respect the prerogatives of the political branches. Cf. ante, at 15. I respectfully dissent.

Fischer v. United States

Yes §1512(c)(2) is an expansive statute.

having a capacity or a tendency to expand

expansive: Merriam-Webster’s Online Dictionary

Subsection (c)(2) expands (c)(1). Both subsections expand subsection (c), which itself expands §1512, whose stated purpose is to define and set punishment for “Tampering with a witness, victim, or an informant”. What Justice Barrett is attempting to do is expand (c)(2) beyond its context and pretend it is a statue all to itself.

Conclusion

What can we conclude from this decision? First and foremost, that everyone deserves due process, regardless of how despicable we may think them to be. Remember, no matter how badly you may want someone to pay for their actions, there’s probably someone out there who feels the same way about you. If we start denying due process to people, for any reason, then we are no longer a nation of laws and justice, we’ve become just another banana republic.

Second, when trying to understand laws, we must read them in their context. This is not the first argument someone has made that looks at a single clause, line, or phrase out of its context in order to get what they want, and it won’t be the last.

Lastly, everyone who has been charged with a violation of §1512(c)(2) in connection with January 6th can use this opinion to move that those charges be dropped. Any other charges may proceed, after all, since they are alleged to have committed those crimes, but they do have evidence that their §1512 charges should be dropped.

I’m sure this is not the last we’ll hear of January 6th prosecutions. However, we should celebrate the seeking of justice and the rule of law when we see it, especially at our nation’s highest court.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 9, 2024

• Can an executive agency act as judge, jury, and enforcer of their own rules?
• How important is your right to a trial by jury?
• Can Congress overrule the Seventh Amendment by simple legislation?

Seeking redress of our grievances is an important right, protected by the First Amendment. Can the federal government deprive you of due process as a condition of seeking redress? While not talked about in that way, that’s pretty much what the case SEC v. Jarkesy is all about. After assessing George Jarksey Jr. civil penalties for alleged violations of antifraud provisions, the SEC attempted to deny him his right to a trial by jury. Could this be a start of reforms of unconstitutional administrative law courts?

Securities and Exchange Commission

After the stock market crash of 1929, Congress passed several laws to regulate the trading of securities. This was not exactly constitutional, since Congress is only empowered to punish securities fraud under Article I, Section 8, Clause 6.

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

U.S. Constitution, Article I, Section 8, Clause 6

Of course, the Constitution hasn’t stopped Congress from creating illegal agencies in the past, including the Securities and Exchange Commission.

To enforce these Acts, Congress created the Securities and Exchange Commission. The SEC may bring an enforcement action in one of two forums. It can file suit in federal court, or it can adjudicate the matter itself.

Securities And Exchange Commission v. Jarkesy et al.

Not only did Congress create the SEC and empower them to bring enforcement actions, but claimed that they can act like a court and adjudicate those actions themselves. Does anyone else see a problem here? Congress creates the SEC, then makes them judge, jury, and enforcer?

The forum the SEC selects dictates certain aspects of the litigation. In federal court, a jury finds the facts, an Article III judge presides, and the Federal Rules of Evidence and the ordinary rules of discovery govern the litigation. But when the SEC adjudicates the matter in-house, there are no juries. The Commission presides while its Division of Enforcement prosecutes the case. The Commission or its delegee—typically an Administrative Law Judge—also finds facts and decides discovery disputes, and the SEC’s Rules of Practice govern.

Securities And Exchange Commission v. Jarkesy et al.

Basically, if the SEC wants, they create a kangaroo court where everyone except you works for the SEC. This is not only a problem with the SEC, but with all Administrative Law Courts. When it comes to the SEC, this was not always the case.

One remedy for securities violations is civil penalties. Originally, the SEC could only obtain civil penalties from unregistered investment advisers in federal court. Then, in 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Act authorized the SEC to impose such penalties through its own in-house proceedings.

Securities And Exchange Commission v. Jarkesy et al.

Leave it to Congress to take a problem and make things worse. Originally, if the SEC thought you violated one of their rules, they had to take you to federal court, where you received the due process required by the Fifth Amendment. The court had to make sure you were provided with the evidence against you and they had to follow the rules of evidence. When Congress claimed to “fix” the problems that led to the housing collapse of 2008, many of which Congress created, not only did they NOT fix problem, they created a new one: The violation of due process and the Constitution of the United States.

George Jarkesy, Jr.

Now, let me introduce you to the subject of this case, Mr. George Jarkesy, Jr.

Shortly after passage of the Dodd-Frank Act, the SEC initiated an enforcement action for civil penalties against investment adviser George Jarkesy, Jr., and his firm, Patriot28, LLC for alleged violations of the “antifraud provisions” contained in the federal securities laws. The SEC opted to adjudicate the matter in-house. As relevant, the final order determined that Jarkesy and Patriot28 had committed securities violations and levied a civil penalty of $300,000. Jarkesy and Patriot28 petitioned for judicial review.

Securities And Exchange Commission v. Jarkesy et al.

After an in-house review, the SEC levied a civil penalty of $300,000. Mr. Jarkesy asked for a court to review his case.

The Fifth Circuit vacated the order on the ground that adjudicating the matter in-house violated the defendants’ Seventh Amendment right to a jury trial.

Securities And Exchange Commission v. Jarkesy et al.

The Fifth Circuit vacated the order because, in the court’s view, it violated the Seventh Amendment. The Seventh Amendment is one of the “Due Process Amendments”. What does the Seventh Amendment say?

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

U.S Constitution, Amendment VII

Interestingly, the $20 minimum is not indexed for inflation. Even though $20 in 1789 would be over $700 today, all it takes is a controversy of $20 for you to have a right to a jury trial. That is, if this is a common law suit.

Because the claims at issue here implicate the Seventh Amendment, a jury trial is required unless the “public rights” exception applies. Under this exception, Congress may assign the matter for decision to an agency without a jury, consistent with the Seventh Amendment. For the reasons below, the exception does not apply.
Pp. 13–27.

Securities And Exchange Commission v. Jarkesy et al.

So the SEC antifraud provision are just like common law fraud, so this is a suit of common law. What is this “public rights” exception the court is talking about though?

public rights: rights enjoyed by persons as members of the public, as distinct from private rights attached to the personality of the individual or deriving from property owned by him. Public rights may derive from the common law (such as the right of members of the public to pass and repass along the highway) or from statute.

Collins Dictionary of Law © W.J. Stewart, 2006

Are there cases that involve “public rights” and therefore do not fall under the jurisdiction of courts because they do not involve a controversy of law or equity? There may be, but that is not the situation in this case.

The SEC claims that the public rights exception applies because Congress created “new statutory obligations, impose[d] civil penalties for their violation, and then commit to an administrative agency the function of deciding whether a violation ha[d] in fact occurred.” … Congress cannot “conjure away the Seventh Amendment by mandating that traditional legal claims be . . . taken to an administrative tribunal.” … The SEC’s argument that Granfinanciera does not apply because the Government is the party bringing this action also fails. What matters is the substance of the suit, not where it is brought, who brings it, or how it is labeled.

Securities And Exchange Commission v. Jarkesy et al.

Put another way, the SEC claims that Congress created an exception to the Seventh Amendment by allowing them to handle cases in-house.

Gorsuch Concurrence

Justice Gorsuch wrote a concurring opinion, which Justice Thomas joined. Justice Gorsuch brought up a very important point.

I write separately to highlight that other constitutional provisions reinforce the correctness of the Court’s course. The Seventh Amendment’s jury-trial right does not work alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, or property. The Seventh Amendment guarantees the right to trial by jury. Article III entitles individuals to an independent judge who will preside over that trial. And due process promises any trial will be held in accord with time-honored principles. Taken together, all three provisions vindicate the Constitution’s promise of a “fair trial in a fair tribunal.”

Securities And Exchange Commission v. Jarkesy et al. – Gorsuch Concurrence

Justice Gorsuch points to a triad of protections of our rights. As the court noted, the Seventh Amendment protects our right to a jury trial, while the Fifth Amendment protects our right to due process. Article III protects our right to an independent judge to oversee your trial.

In 2010, however, all that changed. With the passage of the Dodd Frank Act, Congress gave the SEC an alternative to court proceedings. Now, the agency could funnel cases like Mr. Jarkesy’s through its own “adjudicatory” system. … That is the route the SEC chose when it filed charges against Mr. Jarkesy.

Securities And Exchange Commission v. Jarkesy et al. – Gorsuch Concurrence

With the passage of the Dodd Frank Act, the SEC can now deal with issues like Mr. Jarkesy in-house. Why would that be a problem?

There is little mystery why. The new law gave the SEC’s Commissioners—the same officials who authorized the suit against Mr. Jarkesy—the power to preside over his case themselves and issue judgment. To be sure, the Commissioners opted, as they often do, to send Mr. Jarkesy’s case in the first instance to an “administrative law judge” (ALJ). … But the title “judge” in this context is not quite what it might seem. Yes, ALJs enjoy some measure of independence as a matter of regulation and statute from the lawyers who pursue charges on behalf of the agency. But they remain servants of the same master—the very agency tasked with prosecuting individuals like Mr. Jarkesy. This close relationship, as others have long recognized, can make it “extremely difficult, if not impossible, for th[e ALJ] to convey the image of being an impartial fact finder.” … And with a jury out of the picture, the ALJ decides not just the law but the facts as well.

Securities And Exchange Commission v. Jarkesy et al. – Gorsuch Concurrence

I think Justice Gorsuch’s point is not only right, but extremely critical. With Administrative Law Judges, controversies are handled by the executive branch agency. Sounds like a good deal for the agency.

Going in, then, the odds were stacked against Mr. Jarkesy. The numbers confirm as much: According to one report, during the period under study the SEC won about 90% of its contested in-house proceedings compared to 69% of its cases in court. … Reportedly, too, one of the SEC’s handful of ALJs even warned individuals during settlement discussions that he had found defendants liable in every contested case and never once “‘ruled against the agency’s enforcement division.’”

Securities And Exchange Commission v. Jarkesy et al. – Gorsuch Concurrence

That’s the problem with Administrative Law Judges: They are biased. Everyone in the court, even your counsel, works for the agency. There is no impartial judge or jury, which explains why so many ALC cases are won by the agency; the home team has the advantage.

The rules of evidence, including their prohibition against hearsay, do not apply with the same rigor they do in court. … For that reason, live testimony often gives way to “investigative testimony”—that is, a “sworn statement” taken outside the presence of the defendant or his counsel.

How did all this play out in Mr. Jarkesy’s case? Accompanying its charges, the SEC disclosed 700 gigabytes of data—equivalent to between 15 and 25 million pages of information—it had collected during its investigation. … Over Mr. Jarkesy’s protest that it would take “two lawyers or paralegals working twelve-hour days over four decades to review,” … the ALJ gave Mr. Jarkesy 10 months to prepare for his hearing, … Then, after conducting that hearing, the ALJ turned around and obtained from the Commission “an extension of six months to file [her] initial decision.” … The reason? The “‘size and complexity of the proceeding.’” … When that decision eventually arrived seven months after the hearing, the ALJ agreed with the SEC on every charge.

Securities And Exchange Commission v. Jarkesy et al. – Gorsuch Concurrence

Does that sound like a fair trial with an impartial judge to you? There was not enough time to deal with a data dump but, of course, the judge gets an extension to make her decision. Sure, the decision didn’t go Mr. Jarkesy’s way, but he can always appeal, right?

Mr. Jarkesy had the right to appeal to the Commission, but appeals to that politically accountable body (again, the same body that approved the charges) tend to go about as one might expect. The Commission may decline to review the ALJ’s decision. … If it chooses to hear the case, it may increase the penalty imposed on the defendant. … A defendant unhappy with the result can seek further review in court, though that process will take more time and money, too. Nor will he find a jury there, only a judge who must follow the agency’s findings if they are supported by “‘more than a mere scintilla’” of evidence. … Mr. Jarkesy filed an appeal anyway. The Commission agreed to review the ALJ’s decision. It then afforded itself the better part of six years to issue an opinion. And, after all that, it largely agreed with the ALJ.

Securities And Exchange Commission v. Jarkesy et al. – Gorsuch Concurrence

Years of appeals in a biased court doesn’t sound like a fair trial system, and it most definitely doesn’t sound like due process. No wonder Justice Gorsuch felt compelled to expand on his concurrence.

Dissent

It seems the same three justices have dissented in most of the cases I’ve reviewed lately. This time, Justice Sotomayor wrote the dissent and justices Kagan and Jackson joined.

Throughout our Nation’s history, Congress has authorized agency adjudicators to find violations of statutory obligations and award civil penalties to the Government as an injured sovereign. The Constitution, this Court has said, does not require these civil-penalty claims belonging to the Government to be tried before a jury in federal district court. Congress can instead assign them to an agency for initial adjudication, subject to judicial review. This Court has blessed that practice repeatedly, declaring it “the ‘settled judicial construction’” all along; indeed, “‘from the beginning.’” … Unsurprisingly, Congress has taken this Court’s word at face value. It has enacted more than 200 statutes authorizing dozens of agencies to impose civil penalties for violations of statutory obligations. Congress had no reason to anticipate the chaos today’s majority would unleash after all these years.

Securities And Exchange Commission v. Jarkesy et al. – Dissent

Keeping to pattern, the dissent focuses on tradition rather than the law. Yes, Congress has authorized agencies to award civil penalties. And no, the Constitution doesn’t require jury trials, but it does require that right to be preserved. That means it’s the right of the accused to request a jury trial, and the government is to comply. The fact that the court has blessed this doesn’t mean that it’s constitutional. Besides, as the Constitution states, it is the supreme law of the land, not the courts.

This 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;

U.S. Constitution, Article VI, Clause 2

However, the dissent seemed to have missed the supremacy clause when it was taught in law school. Oh, wait, it’s unlikely that the justices actually studied the Constitution in law school.

Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity, also known as a public right. According to the majority, the Constitution requires the Government to seek civil penalties for federal securities fraud before a jury in federal court. The nature of the remedy is, in the majority’s view, virtually dispositive. That is plainly wrong. This Court has held, without exception, that Congress has broad latitude to create statutory obligations that entitle the Government to civil penalties, and then to assign their enforcement outside the regular courts of law where there are no juries.

Securities And Exchange Commission v. Jarkesy et al. – Dissent

The dissent points out that the court has found that Congress screwed up, but that is nothing new. The dissent also claims that the government is the sovereign. It would be nice if they actually looked up that word in a legal dictionary.

A chief ruler with supreme power;

In the United States the sovereignty resides in the body of the people.

SOVEREIGN: A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

The dissent thinks the government has the power to grant itself a right by law because it’s “sovereign”. Yet it’s we the people who are sovereign, so only we have the power to delegate a right to government. The dissent made another major legal error.

Beyond the majority’s legal errors, its ruling reveals a far more fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court’s mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary. The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.

Securities And Exchange Commission v. Jarkesy et al. – Dissent

It’s the dissent that is mistaken, and it’s their position that threatens not only the separation of power, but due process. It’s the courts, not the executive branch, that is designed to deal with controversies in law. And just how is the assignment of fine a public-right? Furthermore, it’s the Constitution that protects a person’s right to a trial by jury, not this court. In fact, it’s because this court acted as a neutral umpire that it recognized Mr. Jarkesy’s right to a trial by jury. Chief Justice Roberts made this point in his opinion.

A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands. Jarkesy and Patriot28 are entitled to a jury trial in an Article III court.

Securities And Exchange Commission v. Jarkesy et al.

Thankfully, Chief Justice Robert’s opinion won the day.

Conclusion

I’ve noticed a pattern is several of the opinions lately. The same three justices seem to be more interested in history than the law. If you keep doing that same things, you never have the opportunity to correct your mistakes. That has been the pattern of the Supreme Court for decades. I for one am glad to see this changing. This case is a perfect example of why we protect the rights of the people, regardless of who they are.

People like Mr. Jarkesy may be unpopular. Perhaps even rightly so: The acts he allegedly committed may warrant serious sanctions. But that should not obscure what is at stake in his case or others like it. While incursions on old rights may begin in cases against the unpopular, they rarely end there. The authority the government seeks (and the dissent would award) in this case—to penalize citizens without a jury, without an independent judge, and under procedures foreign to our courts—certainly contains no such limits. That is why the Constitution built “high walls and clear distinctions” to safeguard individual liberty. … Ones that ensure even the least popular among us has an independent judge and a jury of his peers resolve his case under procedures designed to ensure a fair trial in a fair forum. In reaffirming all this today, the Court hardly leaves the SEC without ample powers and recourse.

Securities And Exchange Commission v. Jarkesy et al.

The beauty of our system, especially the due process protections, is that everyone gets them. Rich or poor, popular or not, the Constitution protects all of our rights. If we allow them to be trampled because of tradition, we lose more than just the right to a trial by jury, we lose the most basic protections of justice.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 30, 2024

• Chevron Deference has been the bane of the constitutional community for decades.
• The decision in Chevron directly violated the Administrative Procedures Act, but that didn’t stop the courts from allow executive agencies from rewriting laws.
• While Loper overturned Chevron, I have to wonder if allowing the courts to “fill in the blanks” will be any better?

There are certain legal terms and cases that most people don’t know about, at least until they’re used to bite someone in the backside. One of those terms is Chevron Deference, or the Chevron Doctrine. It comes from a 1984 case where the Supreme Court came up with the great idea that, when Congress isn’t specific, the bureaucrats get to decide. While the court may have overruled Chevron, Loper may not be much better.

Background

The three branches of government have specific powers. The legislative branch writes the law, the executive branch executes the law, and the judicial branch decides controversies. What happens though, when the legislative branch doesn’t do a very good job writing the law? Back in 1984, the Supreme Court decided in the case Chevron v. Natural Resources Defense Council that, when Congress is not specific the executive agency gets to decide. This has led to what many call the Administrative State, where the agencies of the executive branch are the ones making the laws.

Today’s case started with a rule about fishing. Specifically, did the National Marine Fisheries Service have the legal authority to make a rule requiring fishing boats to pay for federal observers?

Petitioners Loper Bright Enterprises, Inc., H&L Axelsson, Inc., Lund Marr Trawlers LLC, and Scombrus One LLC are family businesses that operate in the Atlantic herring fishery. In February 2020, they challenged the Rule under the MSA, 16 U. S. C. §1855(f ), which incorporates the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq. In relevant part, they argued that the MSA does not authorize NMFS to mandate that they pay for observers required by a fishery management plan. The District Court granted summary judgment to the Government. It concluded that the MSA authorized the Rule, but noted that even if these petitioners’ “arguments were enough to raise an ambiguity in the statutory text,” deference to the agency’s interpretation would be warranted under Chevron.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

The “MSA” the court refers to is the “Magnuson-Stevens Fishery Conservation and Management Act”. Lower courts decided, based on the Supreme Court’s decision in Chevron, that they should defer to the decision of the National Marine Fisheries Service (NMFS). The question is, was the court’s Chevron decision correct?

The Court granted certiorari in these cases limited to the question whether Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., …, should be overruled or clarified. Under the Chevron doctrine, courts have sometimes been required to defer to “permissible” agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently. … In each case below, the reviewing courts applied Chevron’s framework to resolve in favor of the Government challenges by petitioners to a rule promulgated by the National Marine Fisheries Service pursuant to the Magnuson-Stevens Act, 16 U. S. C. §1801 et seq., which incorporates the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

The question before the court sounds relatively simple: Should Chevron be overturned or clarified? That decision though, would have a large impact on how the federal government works.

Chevron Deference

So what is this Chevron Deference people are talking about?

The Court recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

Congress writes the law, but it’s up to the President to see that they are faithfully executed. Being made up of humans, many of them attorneys, Congress has a habit of writing long, convoluted laws that don’t necessarily match every situations. When an executive branch agency, like the National Marine Fisheries Services issues rules and regulation that align with the laws Congress has written, there is no problem. But what if the agency goes beyond what the law says?

The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who may well have drafted the laws at issue. United States v. Moore, …. “Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. “[I]n cases where [a court’s] own judgment . . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” United States v. Dickson.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

This exposes some serious problems, not just in the Chevron Doctrine. First of all, the assumption that those who work in an executive agency are “usually able men, and masters of the subject” is foolish. Yes, there are experts within the agency, but those making the decisions regarding rules and regulations are often political appointees, not lifetime experts. Furthermore, those within said agencies do not represent the people. Loper is a classic example of taxation without representation, since no one in the NMFS was elected, yet they sought to impose a fee, effectively a tax, on fishing boats as a condition of being allowed to fish.

How Chevron Works

Which brings us to how Chevron works.

Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional judicial approach of independently examining each statute to determine its meaning. The question in the case was whether an Environmental Protection Agency (EPA) regulation was consistent with the term “stationary source” as used in the Clean Air Act. 467 U. S., at 840. To answer that question, the Court articulated and employed a now familiar two-step approach broadly applicable to review of agency action. The first step was to discern “whether Congress ha[d] directly spoken to the precise question at issue.” … The Court explained that “[i]f the intent of Congress is clear, that is the end of the matter,”… and courts were therefore to “reject administrative constructions which are contrary to clear congressional intent,” … But in a case in which “the statute [was] silent or ambiguous with respect to the specific issue” at hand, a reviewing court could not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” … Instead, at Chevron’s second step, a court had to defer to the agency if it had offered “a permissible construction of the statute,” … even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” … Employing this new test, the Court concluded that Congress had not addressed the question at issue with the necessary “level of specificity” and that EPA’s interpretation was “entitled to deference.” …

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

Chevron was unique. Of the nine justice on the Supreme Court, only six of them actually decided the case. Justices Marshall and Rehnquist were not part of the consideration of the case, and justice O’Connor did not participate in the decision. All six of the justices who decided the case agreed with it, including its two-step approach. First, If Congress was clear in what they meant, then the courts were to reject any act by the agency that contradicted said intent. If, however, the law was silent or ambiguous, the court was to defer to the agency’s interpretation.

Notice, the court once again made up “law” out of thin air. There is nothing in the Constitution or laws of the United States that delegate the interpretation of laws to the executive branch. In fact, the court actually ignored the law.

Congress in 1946 enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” … The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, 5 U. S. C. §706 (emphasis added)—even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding. … And by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, §706, it makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference. The APA’s history and the contemporaneous views of various respected commentators underscore the plain meaning of its text.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

All the way back in 1946, Congress saw a need to check the powers of the administrative state. The Administrative Procedures Act specifically states that it’s the courts, not agencies, that answer questions about the law. By telling the court to interpret both the constitution and laws, they also prohibit the agencies from doing so.

The Mistake in Chevron

The 1984 court erred in another way as well, in the distinction between implicit and explicit delegation of power.

Chevron cannot be reconciled with the APA by presuming that statutory ambiguities are implicit delegations to agencies. That presumption does not approximate reality. A statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. Many or perhaps most statutory ambiguities may be unintentional. And when courts confront statutory ambiguities in cases that do not involve agency interpretations or delegations of authority, they are not somehow relieved of their obligation to independently interpret the statutes. Instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity. But in an agency case as in any other, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. … It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

The Constitution uses explicit, not implicit, delegation of powers, as seen in the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

That leaves no room for anyone to exercise implicit powers; they must be explicitly delegated. Furthermore, the power to write laws is vested solely in Congress.

All legislative Powers herein granted shall be vested in a Congress of the United States

U.S. Constitution, Article I, Section 1

Which means executive agencies have no power, implicit or explicit, to make, modify, or interpret laws to their own understanding. For that matter, neither do courts have the power to make or modify laws, only to interpret what is written.

The 1984 court assumed that those making the decision in the agencies would have special competence in their area of expertise, an assumption that has been shown to be flawed. However, today’s court recognizes that those agencies do not have any competence in dealing with legal ambiguities.

Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

The court then pointed out that political actors are not suited to interpreting laws.

Finally, the view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken because it rests on a profound misconception of the judicial role. Resolution of statutory ambiguities involves legal interpretation, and that task does not suddenly become policymaking just because a court has an “agency to fall back on.” … Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. To stay out of discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA.

By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron prevents judges from judging.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

Dissent

It shouldn’t be a surprise that not all of the justices agreed. Justice Kagan wrote a dissenting opinion, which was joined by Justices Sotomayor and Jackson

[I]f the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made. Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness. That rule has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al. – Dissent

Once again, we see justices placing their own tradition above the law. According to Justice Kagan, we should leave the Chevron Doctrine in place not because it is constitutional or was enacted by law, but because it’s been around for forty years. In fact, she goes further, by claiming Chevron is giving deference is what Congress wants.

And the rule is right. This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al. – Dissent

If Congress wanted the executive agencies to fix their imperfectly written statues, why did they give the power to make such interpretations to the courts?

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.

5 USC §706 – Administrative Procedures Act

Justice Kagan does point out one area of concern, but not in the way she seems focused on.

Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. … But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al. – Dissent

Yes, the court has effectively moved interpretive power, and by it the power to modify law, from the executive branch to the courts. Justice Kagan seems quite offended by the idea, claiming that the court has substituted its judgment above OSHA, EPA, and the Dept. of Education. I personally find that list interesting, since the Constitution does not delegate the power to create any of those agencies to the United States in the first place. She also seems to be upset that a 40 year old decision of the court with absolutely no constitutional or statutory basis, is being overturned by an actual law passed by Congress and signed by the President of the United States, simply because it is 80 years old.

Chief Justice Roberts had a response to the dissent’s position.

The dissent ends by quoting Chevron: “‘Judges are not experts in the field.’” … That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. … The rest of the dissent’s selected epigraph is that judges “‘are not part of either political branch.’” (quoting Chevron, 467 U. S., at 865). Indeed. Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. … And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

Interesting. One of the major complaints about Chevron is that it places politics above the law. Rather than looking for experts to interpret the laws Congress makes, Justice Kagan and the rest of the dissent seem more than happy to have political appointees making up the rules for political reasons rather than legal ones.

Conclusion

The overturning of Chevron is not the death knell to the Administrative State some pundits have been promoting. It is, however, a healthy blow for the rule of law.

Chevron has proved to be fundamentally misguided. It reshaped judicial review of agency action without grappling with the APA, the statute that lays out how such review works. And its flaws were apparent from the start, prompting the Court to revise its foundations and continually limit its application.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

Chevron was a mistake from the beginning. It ignored the law in a misguided attempt to move lawmaking power into the executive branch, thus establishing what we now call the Administrative or Deep State. Removing that power from the Administrative State can, over time, restore the executive branch to its proper role of executing laws, not establishing policy.

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not, and under the APA may not, defer to an agency interpretation of the law simply because a statute is ambiguous.

Because the D.C. and First Circuits relied on Chevron in deciding whether to uphold the Rule, their judgments are vacated, and the cases are remanded for further proceedings consistent with this opinion.

Loper Bright Enterprises Et Al. v. Raimondo, Secretary Of Commerce, Et Al.

I do have a concern. Now that the courts are expected to infer what Congress meant when it was silent or ambiguous, we have a similar problem, just with another branch of government. What is to keep the courts from “interpreting” the law to mean something exactly the opposite of what Congress wrote? After all, that is exactly what they did in Chevron in the first place. All the more reason for We the People to demand Congress write better laws, and to punish those in the executive and judicial branches for assuming that powers are implied rather than explicitly delegated.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 23, 2024

• In a constitutional republic, is anyone immune from prosecution?
• When government actors are immune for their actions, how can they be held accountable?
• If, as the Supreme Court has said, the President is immune for his official actions, how does that not make him a king?

When the delegates to the Constitutional Convention debated the role of the chief executive, many expected George Washington to become our first king. Between Mr. Washington’s humility, and the delegates recent experience with a king, they decided we’d be better off with a President rather than a king. With the recent case of Trump v. United States, many have asked: Have we turned the office of President into the office of king?

Background

On January 6th, 2021, Congress had met to witness the counting of the ballots from the presidential electors, commonly known as the Electoral College. Many people had issues with how the preceding election had been handled, myself included. Some of them showed up at the capital to both display their displeasure, and some to seek redress of their grievances. One of those who was there was then President Donald J. Trump.

Before we go further, I think it’s important to point out a certain misconception, one that is repeated frequently in this court’s opinion. I said Congress was in session to witness the counting of the ballots, not to certify the election, as is often claimed.

the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

U.S. Constitution, Amendment XII

Congress is there to observe, not certify, the counting of the ballots. The two houses are also present in case no one gets a majority of votes for either President or Vice President.

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. …

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President;

U.S. Constitution, Amendment XII

While this fact is not directly related to the case, what Congress was doing January 6, 2021 is so often misrepresented by the court, the media, and pundits in general, I thought it worth correcting the record.

The Case

This particular case started with an indictment for Mr. Trump regarding his actions on and around January 6th.

A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties. The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D. C. Circuit affirmed. Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts.

Trump v. United States

Trump says he has immunity, the District and Circuit courts disagreed. However, the Supreme Court did not.

Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

Trump v. United States

The court based its decision on the doctrine of separation of powers. Under the Constitution, each of the three branches of government are given specific powers which only they can exercise. The court expands on this in their opinion.

This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.

Trump v. United States

Interesting that the court claims immunity is a question of separation of powers, because the court ignores the fact that the powers are vested in the office, not the person holding it at any point in time.

This is an historic case. Not simply because a former President is accused, but the circumstances under which he was indicted. Let’s start with whether or not such a prosecution should move forward.

(1) Article II of the Constitution vests “executive Power” in “a President of the United States of America.” §1, cl. 1. The President has duties of “unrivaled gravity and breadth.” Trump v. Vance, 591 U. S. 786, 800.

Trump v. United States

The Constitution does vest the executive power of the United States in its President, but the duties that Constitution vests are not unrivaled in gravity or in breadth. For example, the President is the Commander in Chief of the Army & Navy (Article II, Section 2, Clause 1), but it is Congress that sets the rules for the military (Article I, Section 8, Clause 14). The President can sign treaties and make appointments, but only with the advice and consent of the Senate (Article II, Section 2, Clause 1). Notice, this court points to the Constitution for the President’s executive power, but to another court when discussing its gravity and breadth.

His authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id., at 638 (Jackson, J., concurring). When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

Trump v. United States

This is where I see the court drifting from its constitutional power. Yes, the President’s power comes from the Constitution, but nowhere in the Constitution is Congress delegated the power to grant him authorities other than his constitutional ones. The court appears to try to “split the baby” between official acts that are within his constitutional powers and those that are not.

Not all of the President’s official acts fall within his “conclusive and preclusive” authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress. To determine the President’s immunity in this context, the Court looks primarily to the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases where a President resisted prosecutorial demands for documents.

Trump v. United States

Do you see the contradiction? The court talks about separation of powers while claiming there are powers shared with Congress. Are the powers separate or not? When the court looks at the Framers’ design of the Presidency, it appears their view is myopic. As the dissent pointed out:

At the Constitutional Convention, James Madison, who was aware that some state constitutions provided governors immunity, proposed that the Convention “conside[r] what privileges ought to be allowed to the Executive.” Records of the Federal Convention of 1787, p. 503 (M. Farrand ed. 1911). There is no record of any such discussion. … Delegate Charles Pinckney later explained that “[t]he Convention which formed the Constitution well knew” that “no subject had been more abused than privilege,” and so it “determined to . . . limi[t] privilege to what was necessary, and no more.” … “No privilege . . . was intended for [the] Executive.”

Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President. James Wilson recognized that federal officers who use their official powers to commit crimes “may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.” Debates on the Constitution 177 (J. Elliot ed. 1836). A few decades later, Justice Story evinced the same understanding. He explained that, when a federal official commits a crime in office, “it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders.” Commentaries on the Constitution of the United States §780, pp. 250–251 (1833). Without a criminal trial, he explained, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” … This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law.

Trump v. United States – Dissent

Contrary to the court’s opinion, not only is presidential immunity not included in the Constitution, but apparently the idea of privilege was rejected during the convention. The evidence shows that the idea of immunity for any office was downright offensive to those who drafted and commented on the Constitution.

The court went on to explain their position.

(i) The Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J. Cooke ed. 1961) (A. Hamilton). They vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the “unique risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” the Court has recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.” Id., at 749, 751, 752, n. 32. In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Id., at 756. The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decision making process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.”

Trump v. United States

Once again we see that courts, not the Constitution, are the source of this idea of presidential immunity. Yes, we want an executive that’s energetic in exercising his duties, but how far does that go? If we look at the context of Federalist #70 we find Alexander Hamilton was asking the same question:

Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

Federalist Paper #70

The court seemed very concerned about the prospect of impairing the President’s ability to act, but not the dangers of a lack of restraint.

The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decision making process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” Clinton v. Jones, 520 U. S. 681, 694

Trump v. United States

What about the consideration of the consequences of the President’s actions? Shouldn’t someone with the powers of the President consider the legality of their actions? Is there not a need to worry about the impact of one’s actions, especially if those actions are criminal? Shouldn’t the court’s dominant concern be about the application of the law, rather than covering over the bad actions of the President.

Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.

Trump v. United States

The court has yet to provide a constitutional argument of how the separation of powers places anyone’s actions above review. What this court has done is promote the opinion of previous judges, unsupported by law or Constitution, above the supreme law of the land, and create a privilege for the President that was not only rejected by the federal convention, but by those who observed and commented on it.

The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Mitchell, 472 U. S., at 525. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at least some such conduct.

Trump v. United States

The court never answers what appears to be the most important question. How can we know if a president’s conduct is immune from prosecution if the deciders of facts, the courts, are not allowed to look? The court’s position not only creates a self-fulfilling prophesy, but an active immunization of any President for his actions while in office. If a President cannot be held to answer for his conduct, how can that be considered anything but placing the office above the law?

The court even admits that their position is not based on the Constitution.

True, there is no “Presidential immunity clause” in the Constitution. But there is no “‘separation of powers clause’” either.

Trump v. United States

True, the phrase “separation of powers” does not exist in the Constitution, but the principle is clearly spelled out in the first clause of the first three articles.

All legislative Powers herein granted shall be vested in a Congress of the United States,

U.S Constitution, Article I, Section 1

The executive Power shall be vested in a President of the United States of America.

U.S Constitution, Article II, Section 1, Clause 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

U.S Constitution, Article III, Section 1

Each branch is vested with specific and separate powers. Hence, the “separation of powers”, but those powers are vested in offices, not the people in them. Furthermore, Article III not only vests the judicial power of the United States, it set their jurisdiction as well.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

U.S. Constitution, Article III, Section 2, Clause 1

How can the court have jurisdiction in all cases in law and equity if this court exempts the President from said jurisdiction?

The court’s opinion dealt with several of the dissent’s arguments. One however, I think is worth discussing here.

The principal dissent then cites the Impeachment Judgment Clause, arguing that it “clearly contemplates that a former President may be subject to criminal prosecution.” … But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular.

Trump v. United States

As the court points out, the Impeachment Clause does not prohibit criminal prosecution after conviction, but neither does prohibit prosecution without impeachment. In fact, the Impeachment Clause specifies:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Constitution, Article I, Section 3, Clause 7

If the Impeachment Clause states that a President can be subject to trial after impeachment, how can the court claim he is immune from answering for such crimes? This court claimed that any such actions would be outside of the President’s official duties, but that doesn’t make sense. As the dissent points out:

When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.

Trump v. United States

All of those actions, and plenty more, are part of the core official powers of the President, and expressly illegal.

Thomas Concurrence

Justice Thomas agreed with the court, but brought up a very interesting point.

In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure.

Trump v. United States

This is an interesting point. Is this whole case a product of an illegal case brought by a Special Counsel that does not legally exist? And if the Special Counsel office is invalid, was Mr. Smith’s appointment legitimate?

Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” … So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.”

Trump v. United States

Just another interesting twist to this interesting case.

Barrett Concurrence

Barrett agreed with most of the court’s opinion, except Part III-C.

For reasons I explain below, I do not join Part III–C of the Court’s opinion. The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct. That said, I would have framed the underlying legal issues differently.

Trump v. United States

What is this part Justice Barrett disagreed with?

The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. See, e.g., Collins v. Yellen, 594 U. S. 220, 235– 236 (2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194 (2012); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 487–488 (2010). A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.

Trump v. United States

If the Constitution does not insulate a President from criminal liability for official acts, why did Justice Barrett concur with court’s opinion? Was that not a violation of her oath of office, and by extension, bad behavior?

Dissent

Justice Sotomayor’s dissented, and was joined by Justices Kagan and Jackson.

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, … the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

Trump v. United States

While I rarely agree with Justice Sotomayor, I agree with most of what she said here. It is this court, not the Constitution, that is granting immunity to the President. It does place the office of President above the law by preventing prosecution. While it does not give President Trump all that he asked for, it gives him enough.

Conclusion

What can we conclude from this historic decision? First, we have yet another example of the court simply making up laws out of thin air. As both the opinion and the dissent noted, there is no immunity clause for the President in the Constitution, yet the court makes one up. The court claims that the separation of powers grants the President immunity, but said immunity actually contradicts the separation of power by preventing the judicial branch from doing what it is constitutionally bound to do. It appears that the court needs to take a very close look in the mirror, for it seems to be projecting itself on the dissent.

The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.”

Trump v. United States

It is not the dissent that is ignoring the Constitution, but the majority. The separation of powers is just that, separation of powers, not the isolation of the branches of government. By claiming the executive has power to evade the power of the judiciary, it is the court that is violating separation of powers.

The court’s disregard of the Constitution goes far beyond Donald Trump and his January 6th actions. Consider that attacks against pro-lifers advocates, parents, traditional Roman Catholics, and so many more by the Biden Administration’s so-called Department of Justice. The armored raid of people’s houses who are accused of misdemeanors, the targeting of political opponents as potential domestic violent extremists, and the coercion of social media outlets to suppress information; those acts are deprivation of rights under color of law, and federal crime under 18 USC §242. If any of those acts can be tied back to Joe Biden, that would make him a conspirator, and criminally liable under §241. But according to the court, Mr. Biden is immune from prosecution, and effectively immune from investigation, since there’s no need to investigate a crime that cannot be prosecuted. It’s not just Joe Biden; Barack Obama, George W. Bush, and even Jimmy Carter are living Presidents who may have committed crimes for which they cannot be held legally accountable, thanks to this court.

This court looked at examples of malicious prosecution, and rather than finding out the truth and applying the law, they got into politics and made the law. Rather than punishing the bad actors in these cases, the court has exposed each and every American to an expansion of the tyranny already coming from the executive branch. After all, since there is no distinction made for the President when it comes to criminal charges, how can the court logically extend them to those who work for him? Since those in the executive branch are exercising the powers vested in the President, don’t they get the same protection?

This opinion is so bad, such a violation of the justice’s oaths of office, that I believe it rises to the point of bad behavior. I don’t believe justices should be impeached over their opinions, and I don’t believe the justices should be impeached simply for this opinion. But when the courts protect criminal activity via mock trail, when such a long train of abuses and usurpations evidence design to reduce us under absolute Despotism, I believe it is imperative that the justices responsible be held accountable. After all, it is this court that has claimed that you have no redress of grievance against a President who commits a criminal act. They have conspired to deprive the American people of their right to seek redress under color of law, making this a conspiracy to deprive us of rights under the color of law. If this is the state of our republic, then someone should have told Benjamin Franklin that we were only able to keep it for about 230 years.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 11, 2024

• Is a bump stock a machine gun?
• Do executive agencies have the authority to rewrite laws passed by Congress?
• Should the court make decisions based on the law or their emotions?

When does a rifle become a machine gun? That is the question asked in the Supreme Court case Garland v. Cargill. When the Bureau of Alcohol, Tobacco, Firearms, and Explosives suddenly decided to redefine bump stocks as machine guns, many Americans simply complied. However, when Michael Cargill surrendered his bump stocks to the ATF, he did so under protest, filing suit to challenge the rule under the Administrative Procedure Act. Those of us who enjoy and exercise our right to keep and bear arms owe Mr. Cargill a debt of gratitude, but the fight is not over. Thanks to Mr. Cargill’s determination and persistence, the ATF’s bump stock rule has been found to have violated U.S. law, meaning we get our bump stocks back. However, it also leaves open the chance for Congress to do what the ATF could not: Violate the Second Amendment one more time.

While this case has been watched closely by many in the Second Amendment community, the case isn’t actually about the Second Amendment, even though I think it should be.

Second Amendment

Congress has long restricted access to “ ‘machinegun[s],’ ”a category of firearms defined by the ability to “shoot, automatically more than one shot . . . by a single function of the trigger.” 26 U. S. C. §5845(b);

Garland v. Cargill

This is true. Congress has passed a law known as the National Firearms Act (NFA) that, among other things, restricts access to “machine-guns”. Does Congress have the authority to do so? Contrary to popular belief, the Second Amendment doesn’t make distinctions between different types of arms.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution, Amendment II

The Second Amendment does not limit arms possession to the militia, neither does it place limits on the types of arms a person can own and carry. It simply states “the right of the people to keep and bear arms shall not be infringed.” So what is an arm that someone can keep or bear?

1. Weapons of offense, or armor for defense and protection of the body. …
2. In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.

Arms: Webster’s 1828 Dictionary

It would seem this definition, along with the actual language of the Second Amendment, should put to bed most of the “gun control” arguments. Congress went on to pass the NFA, even though it was criminal for them to do so. In the NFA, Congress makes a distinction between “machine-guns” and other types of firearms.

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot, without manual reloading, by a single function of the trigger.

26 U.S.C. §5845(b)

This distinction between types of firearms is the primary focus of this case.

Semiautomatic firearms, which require shooters to reengage the trigger for every shot, are not machineguns. This case asks whether a bump stock—an accessory for a semiautomatic rifle that allows the shooter to rapidly reengage the trigger (and therefore achieve a high rate of fire)—converts the rifle into a “machinegun.”

Garland v. Cargill

Bump Stocks

Since this case is about bump stocks, it would make sense to specify what one is and how it works.

Shooters have devised techniques for firing semiautomatic firearms at rates approaching those of some machineguns. One technique is called bump firing. A shooter who bump fires a rifle uses the firearm’s recoil to help rapidly manipulate the trigger. The shooter allows the recoil from one shot to push the whole firearm backward. As the rifle slides back and away from the shooter’s stationary trigger finger, the trigger is released and reset for the next shot. Simultaneously, the shooter uses his nontrigger hand to maintain forward pressure on the rifle’s front grip. The forward pressure counteracts the recoil and causes the firearm (and thus the trigger) to move forward and “bump” into the shooter’s trigger finger. This bump reengages the trigger and causes another shot to fire, and so on. …

Although bump firing does not require any additional equipment, there are accessories designed to make the technique easier. A “bump stock” is one such accessory.

Garland v. Cargill

So, a bump stock is merely an accessory that makes it easier to bump fire a semi-automatic rifle. Normally, a person moves their finger to fire the weapon, but when bump firing, the weapon is allowed to move against the finger.

There is more to this case than just bump stocks though.

ATF Policy Change

So what led to this ATF rule to redefine bump stocks as machine guns?

For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) took the position that semiautomatic rifles equipped with bump stocks were not machineguns under the statute. On more than 10 separate occasions over several administrations, ATF consistently concluded that rifles equipped with bump stocks cannot “automatically” fire more than one shot “by a single function of the trigger.” … In April 2017, for example, ATF explained that a rifle equipped with a bump stock does not “operat[e] automatically” because “forward pressure must be applied with the support hand to the forward handguard.” … And, because the shooter slides the rifle forward in the stock “to fire each shot, each succeeding shot fir[es] with a single trigger function.”

Garland v. Cargill

As seems to be so often the case, we see politics rather than the law at the heart of these regulations.

ATF abruptly reversed course in response to a mass shooting in Las Vegas, Nevada. In October 2017, a gunman fired on a crowd attending an outdoor music festival in Las Vegas, killing 58 people and wounding over 500 more. The gunman equipped his weapons with bump stocks, which allowed him to fire hundreds of rounds in a matter of minutes.

This tragedy created tremendous political pressure to outlaw bump stocks nationwide. Within days, Members of Congress proposed bills to ban bump stocks and other devices “designed . . . to accelerate the rate of fire of a semiautomatic rifle.” … None of these bills became law. Similar proposals in the intervening years have also stalled.

Garland v. Cargill

What we see here is the ATF reversing their earlier position not because of a change in the law or technology, but because of political pressure. Nothing is mentioned about the fact that anyone can “fire hundreds of rounds in a matter of minutes” with or without a bump stock. Once again, political pressure was focused on the device rather that the person using it to commit crimes.

Even from the beginning of ATF’s attempt to rewrite the NFA, they faced problems.

While the first wave of bills was pending, ATF began considering whether to reinterpret §5845(b)’s definition of “machinegun” to include bump stocks. It proposed a rule that would amend its regulations to “clarify” that bump stocks are machineguns. … ATF’s about face drew criticism from some observers, including those who agreed that bump stocks should be banned. Senator Dianne Feinstein, for example, warned that ATF lacked statutory authority to prohibit bump stocks, explaining that the proposed regulation “ ‘hinge[d] on a dubious analysis’ ” and that the “ ‘gun lobby and manufacturers [would] have a field day with [ATF’s] reasoning’ ” in court. … She asserted that “ ‘legislation is the only way to ban bump stocks.’ ”

Garland v. Cargill

Michael Cargill

Thankfully, there were several people who took the time, effort, and money to challenge the ATF’s power grab. One of those people was Michael Cargill.

Michael Cargill surrendered two bump stocks to ATF under protest. He then filed suit to challenge the final Rule, asserting a claim under the Administrative Procedure Act. As relevant, Cargill alleged that ATF lacked statutory authority to promulgate the final Rule because bump stocks are not “machinegun[s]” as defined in §5845(b).

Garland v. Cargill

As you can imagine, since Mr. Cargill’s case made it all the way to the Supreme Court, things didn’t go his way at first.

After a bench trial, the District Court entered judgment for ATF. The court concluded that “a bump stock fits the statutory definition of a ‘machinegun.’ ”

The Court of Appeals initially affirmed, …, but later reversed after rehearing en banc. A majority agreed, at a minimum, that §5845(b) is ambiguous as to whether a semiautomatic rifle equipped with a bump stock fits the statutory definition of a machinegun. And, the majority concluded that the rule of lenity required resolving that ambiguity in Cargill’s favor. … An eight-judge plurality determined that the statutory definition of “machinegun” unambiguously excludes such weapons. A semi-automatic rifle equipped with a bump stock, the plurality reasoned, fires only one shot “each time the trigger ‘acts,’ ” … and so does not fire “more than one shot . . . by a single function of the trigger,” §5845(b). The plurality also concluded that a bump stock does not enable a semiautomatic rifle to fire more than one shot “automatically” because the shooter must “maintain manual, forward pressure on the barrel.”

We granted certiorari, … to address a split among the Courts of Appeals regarding whether bump stocks meet §5845(b)’s definition of “machinegun.”

Garland v. Cargill

We see once again in the District Court, the judges substituting their own preferences for the actual law. The very definition of “bump firing” involves resetting the trigger, then allowing it to bump into your finger again. Meaning that a single trigger function fires one round.

The Dissent

Justice Sotomayor wrote a dissent, joined by Justices Kagan and Jackson.

On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.

Garland v. Cargill – Dissent

Notice how Justice Sotomayor does not anchor her dissent on the law or the Constitution, but on the emotions generated by a mass murder. It appears quite obvious that these dissenting justices are not interested in determining a controversy based on the law, as their oath requires, but on legislating from the bench. Justice Sotomayor also attempts to mislead in her dissent by misrepresenting how a bump stock operates. She ignores the need to operate the trigger by the rifle going back and forth, rather than just a person’s finger.

Today, the Court puts bump stocks back in civilian hands. To do so, it casts aside Congress’s definition of “machinegun” and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose. When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent.

Garland v. Cargill – Dissent

The court is not putting bump stocks back in civilian hands, it is preventing the ATF from illegally removing them. It’s not the majority of the court that is casting aside Congress’ definition of a machine gun, but the ATF and the dissent. If the dissenting justices see ducks when they look at a bump stocks, perhaps they’ve been watching too many Disney films where ducks talk, wear clothes, and dive into piles of money.

Conclusion

Six of the nine justices on the court looked at the facts of the case and came to a conclusion.

For the foregoing reasons, we affirm the judgment of the Court of Appeals.

It is so ordered.

Garland v. Cargill

Interestingly, although the court made several references to the ATF exceeding its statutory authority in the syllabus of this decision, it makes no direct claim in the opinion itself. Rather, it points to the dissenting justices as attempting to rewrite the statute.

In any event, Congress could have linked the definition of “machinegun” to a weapon’s rate of fire, as the dissent would prefer. But, it instead enacted a statute that turns on whether a weapon can fire more than one shot “automatically . . . by a single function of the trigger.” §5845(b). And, “it is never our job to rewrite . . . statutory text under the banner of speculation about what Congress might have done.”

Garland v. Cargill

The good news is the bump stock ban is dead, at least for now. Senate Majority Leader Schumer has already announced plans to restore the bump stock ban. While I do not expect Mr. Schumer’s plans to work, I also expect others in the anti-Second Amendment community to continue to attempt to violate the Constitution by infringing on the people’s right to keep and bear arms.

As I stated in the beginning, this case was not about the Second Amendment. Perhaps it should be. It’s time to find representatives at all levels of government who recognize our God-given right to defend ourselves from all enemies, foreign or domestic, civilian or government. Only then would those in Congress, the Executive Branch, and the courts who want to see the American people disarmed, be stopped in their tracks. Rather than seeing arms as evil and something to be restrained, we should see them for their benefit and true purpose, as Noah Webster did.

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. “

Noah Webster – An Examination Into the Leading Principles of the Federal Constitution

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 2, 2024

• What are your rights and liberties worth to you and your family?
• Are you will to stand up against those who are trying to infringe on your rights?
• Those who signed the Declaration pledged their lives, fortunes, and sacred honor. What will you pledge?

Things looked bleak for the colonies in 1776. The question of freedom had life and death consequences. Those 56 men who signed the Declaration of Independence knew they were committing treason against their king. They knew that freedom would cost them greatly. Yet they still pledged to each other their lives, fortunes, and sacred honor. Today, groups of people around this nation are still fighting for their independence. Not from political affiliation, but from ever expanding governments dedicated to taking away our independence, our freedom, and our right to life, liberty, and to pursue happiness. Will you stand by while your birthright as an American is taken away from you and your family? Will you join with others to make sure this remains the land of the free by once again becoming the home of the brave? Will you pledge your life, your fortune, and your sacred honor, not to me or to this nation, but to your children and those who will follow? As we remember Independence Day and the 56 men who pledged themselves to its cause, let us renew the call of freedom. Let us take this opportunity to remind tyrants and despots that the American people were not born enslaved to their governments. Let us declare that liberty and freedom will not vanish from this nation. That we will not allow tyranny and fear to rule us. We will not go silently into that good night of subjugation. This July 4th, let us loudly proclaim:

This is OUR INDEPENDENCE DAY!

For most of my life, I was told that our destruction would come from outside. As a child I was taught to “duck and cover” from Soviet nuclear missiles. As a younger man, I was first told that an ice age, and then global warming would destroy us. I was told that we had to invade foreign nations or face certain destruction from terrorism. Lately, we’ve been told that our rights are being turned over to foreign entities like the World Health Organization, the World Economic Forum, and the United Nations. Turns out, what I had been taught most of my life was wrong. The real source of our destruction was much closer to home.

I apprehend no danger to our country from a foreign foe. Our destruction, should it come at all, will be from another quarter. From the inattention of the people to the concerns of their government, from their carelessness and negligence, I must confess that I do apprehend some danger. I fear that they may place too implicit a confidence in their public servants, and fail properly to scrutinize their conduct; that in this way they may be made the dupes of designing men, and become the instruments of their own undoing.

Daniel Webster [June 1, 1837]

Mr. Webster was right; we have become the instruments of our own undoing.

Disposed to Suffer, While Evils are Sufferable

all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

Declaration of Independence

For that last several years, around July 4th I have pointed out how much the Declaration of Independence is relevant to our lives today. How all of the grievances the colonies had against King George the states could now claim against the federal government, and how the circumstances that led to revolution have existed in these United States for years. Yet no real stand has been taken. It seems that the evils that drove our Founding Fathers to action are clearly sufferable today. Why do such infringements on our rights warrant little more than social media complaints? Have the American people been bribed into complacency? As Alexis DeTocqueville said:

The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money

Alexis De Tocqueville

Do we consider bread and circuses sufficient compensation for our God given rights? It seems the American people have so devalued their rights that we will trade them for the most obviously false promise of a little safety. I’m reminded of a line John Adams penned to his wife Abigail:

Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it. If you do not, I shall repent in Heaven, that I ever took half the Pains to preserve it.

Letter from John Adams to Abigail Adams,  26 April 1777

While Mr. Adams is almost assuredly repenting in heaven, all is not lost for the republic for which he paid so much. If Mr. Webster was correct, and I believe the facts and evidence show that he was, then it wasn’t these outside organizations or even those in our governments that destroyed our freedom, it was us. It was our carelessness and negligence, our blind trust in political parties, and our confidence in those we call public servants. While our guilt, and those of those before us, may not be a pleasant pill to swallow, it comes with a glimmer of hope.

When a Long Train of Abuses

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Declaration of Independence

We have suffered a long train of abuses and usurpations of our rights. We have stood by while governments, both state and federal and led by both political parties, have pushed to reduce us to the victims of utter despotism. Yet still, most Americans will not even stand up to the illegal acts of their government. We keep hoping and praying that some despot will be nice to us as he enslaves us. We act as if one political party or another will come to our rescue. We’ve watched as these people have not only turned us against each other, but against the very foundations of what makes us free. We have elevated those who have tormented us with their hatred, into those who have enslaved us with their rules. We are at the point now that every four years we are told the election of a president is the most important election ever. As George Washington warned us:

The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Washington’s Farewell Address 1796

This year is no different. Both sides point to the presumptive candidate from the other party and claim they will cause the destruction of our nation. The spirit of revenge which is so much a part of party politics, has led us to a point where some see the only resolution as a civil war. Have these abuses not gone on long enough?

We the People

Much of our torment and turmoil comes from the loss of a basic truth founded in the Constitution. A truth so fundamental that it is enshrined in the constitutions of most of our states. A truth stated by Thomas Jefferson:

that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent

Thomas Jefferson to John Cartwright, 5 June 1824

A truth contained in the preamble to the Constitution:

We the People of the United States, … do ordain and establish this Constitution for the United States of America.

U.S. Constitution – Preamble

That the powers we do not delegate to others, we retain for ourselves:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution – Amendment X

In short, it seems the American people keep looking for someone else to keep them free, but the power to do so remains where it has always been: In our own hearts and hands.

Independence Day

In 1776, 56 men signed a document declaring that their states were independent, and therefore free from the tyranny of British rule. That required the overthrowing of colonial governments and replacing them with state governments, and overturning established laws to make new ones. While it may seem as daunting, what we need today is not nearly so grand. You see, we don’t need to overthrow a government or overturn laws. We merely need to enforce those laws we already have and replace public servants who claim to be public masters. As John Francis Mercer said during the debates at the Constitutional Convention.

It is a great mistake to suppose that the paper we are to propose will govern the United States. It is the men whom it will bring into the Government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.

Madison’s Notes to the Debates in the Federal Convention of 1787

If we wish to be free of the unelected monstrosity of the “Administrative State”, we need to realize that their power is a myth because the Constitution forbids most of them from existing. To be free, we must not only know the supreme law of the land, but have the fortitude to act upon it. The Constitution marks out the form, but it is up to us to provide the substance and do the business. If we are to be the land of the free, then We the People need to be brave enough to stand and declare our independence. Independence from the illegal agencies, from the usurpation of powers, and from ignoring both the law and the oath those in government took to support it. Independence from foreign laws that have no legal standing under the Constitution, and independence from the tyranny of men and political parties alike, to bribe, bully, and intimidate us into giving up our rights.

Let’s take the opportunity of this Fourth of July to pledge to each other, to our children, and to future generations, our lives, our fortunes, and our sacred honor. Let us make today our Independence Day.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 26, 2024

• What would a parent do to protect their child?
• Who should be the final arbiter of what’s best for a child, the parents or the school?
• Should schools be required to notify parents of any substantial medical or mental changes in the child?

Probably the most powerful instinct as a parent is to protect our children. Parents work hard, sacrifice, and sometimes risk their own lives to protect their children. Most parents believe the government is there to help them protect their children, too, but is that true?

Take, for example, the case of Parents Protecting Our Children UA v. Eau Claire Area School District Wisconsin. Parents Protecting, an association of parents, sued the Eau Claire Area School District to prevent them from enforcing guidelines that interfere with a parents right to make decisions for their child. Both the District and Circuit Courts denied the parents, claiming that no child had yet been harmed by the school policy, and therefore they do not have the right to petition their government for a redress of their grievance. If a court can tell parents they are not allowed to protect their children until after someone is hurt, then who is? Because it’s not the school district.

There has been a lot of controversy over parent’s rights lately, especially related to public schools. From the teaching of Critical Race Theory to Drag Queen Story Hours, there has been situations where the relationship between parents and the school district have become outright hostile. Since the 1932 case Meyer v. Nebraska, the Supreme Court has recognized the right of parents to direct the education of their children as being protected under the Due Process Clause of the Fourteenth Amendment. This was reinforced by the 2000 case Troxel v. Granville, which stated:

The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” … including parents’ fundamental right to make decisions concerning the care, custody, and control of their children,

Troxel v. Granville, 530 U.S. 57 (2000)

However, when Parents Protecting Our Children sued the Eau Claire School District for putting in place a policy that directly infringed on their “right to make decisions concerning the care, custody, and control of their children”, both the District and Circuit Courts “punted” the question, claiming the parents did not have standing.

The School District Policy

We start with the policy in question.

In 2021 the Eau Claire Area School District promulgated the Administrative Guidance for Gender Identity Support. The Administrative Guidance aims to “foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression.” To this end, the document provides “guidelines” for schools to follow “to address the needs of transgender, nonbinary, and/or gender non-conforming students.”

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

Like other schools, the Eau Claire School District finds itself in the middle of the “transgender” controversy. It therefore decides to put in place guidelines to help prevent discrimination, harassment, and bullying. I think this a reasonable precaution for the school district to take and a laudable goal. Its unfortunate implementation though, leaves a lot to be desired.

The process envisioned by the Administrative Guidance recognizes that either students or parents may contact school officials with questions, concerns, or requests bearing on matters of student gender identity. By its terms, the Guidance acknowledges the delicacy and sensitivity of these matters, including the possibility that some students might “not [be] ‘open’ at home for reasons that may include safety concerns or lack of acceptance.” For that reason, “[s]chool personnel should speak with the student first before discussing a student’s gender non-conformity or transgender status with the student’s parent/guardian.”

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

So far, so good. The school appears to want open communications between themselves and both the students and parents. I don’t have a problem with the school talking with a student before discussing their “gender nonconformity or transgender” status with their parents, but the vision “inclusive and welcoming” seems to quickly dissipate.

In 2022 the School District prepared a template Gender Support Plan. …

Like the Administrative Guidance, the Support Plan recognizes that circumstances may arise where “parents are not involved in creating this plan,” in which case the Plan directs school officials that “it shall be made clear to the student that this plan is a student record and will be released to parents when they request it.” This disclosure commitment gives effect to the School District’s acknowledgment that a support plan “is not a privileged document between the student and the school district.”

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

The “support plan” may not be a privileged document, but how are the parents supposed to know they can request it if they don’t even know it exists?

The Parents

Speaking of the parents, what is their view of this guidance?

Parents Protecting Our Children is an unincorporated association of parents whose children attend schools within the Eau Claire Area School District. …

Parents Protecting worries that the Administrative Guidance encourages the School District to leave parents in the dark if their children wish to explore their gender identity or begin to socially transition to a different gender at school. The association also fears that the School District will implement the Guidance and related support plans in ways that effectively displace parental rights by making major life decisions for their children. In these ways, the organization sees the District’s Administrative Guidance as sowing so much secrecy and mistrust between parents and their children as to offend principles of substantive due process and religious free exercise.

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

Parents Protecting sees two major issues with Eau Claire’s guidance. First, it intentionally leaves parents in the dark about a major change in their child’s life. Second, it effectively allows the school district to replace the parents in making such decisions. Both of these seemingly violate the parent’s “fundamental right to make decisions concerning the care, custody, and control of their children”. As stated in the court case:

By its terms, the Guidance acknowledges the delicacy and sensitivity of these matters, including the possibility that some students might “not [be] ‘open’ at home for reasons that may include safety concerns or lack of acceptance.” For that reason, “[s]chool personnel should speak with the student first before discussing a student’s gender non-conformity or transgender status with the student’s parent/guardian.”

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

Notice, the school district’s position is not simply a question of the student’s safety, but of acceptance. Simply because the parents do not accept the student’s position does not give the state, in the person of the school district, the authority to overrule the parents. The parents have a right, protected by the Constitution of the United States, to make decisions for their children. Not only does the state not have the authority to overrule the parents simply because they think the decision is wrong, but the state has the burden of proof that the child’s safety is at risk. If the school district has probable cause to believe the child’s safety is at risk, shouldn’t they show examples where the child’s safety was put at risk? It should not be enough for the school district to merely say “We think the child’s safety may be at risk” to override parental rights.

The Court Decisions

So how did the courts come down on this question?

The district court concluded that the association failed to allege any injury or risk of injury sufficient to establish standing under Article III’s Case or Controversy requirement.

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

The District Court said Parents Protected failed to allege either an injury or risk of injury sufficient to establish standing under Article III of the Constitution, which states:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

U.S. Constitution, Article III, Section 2, Clause 1

This case is a question of equity under the Fourteenth Amendment. Seems to me, between the actual language of Article III and the Supreme Court’s decision in Troxel, there is an injury that should provide standing.

Neither the Administrative Guidance nor the template Support Plan, the district court determined, mandated the exclusion of parents or guardians from discussions or decisions regarding a student’s gender expression at school.

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

The policies do not mandate the exclusion of parents, but establish the process by which they can be excluded without probable cause. Although the school district claims that the Support Plan is not a privileged document, the court’s own record shows that the parents or guardians can access the plan, how are the parents supposed to know the plan exists if they are not told?

“it shall be made clear to the student that this plan is a student record and will be released to parents when they request it.”

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

This places the decision of the student above the rights of the parents to control the child’s upbringing. This is a direct violation of, and therefore an injury to, the parent’s rights.

From there the district court emphasized that the complaint lacked any allegation that any member’s child had questioned their gender identity or otherwise sought guidance or support under the School District’s policy, leaving the association unable to plead any withholding of information from parents.

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

By this logic, a threat to beat you up if you exercise your right to free speech isn’t injured until you’re actually beat up. The school district has stated, in writing, that they will violate the rights of parents, by not giving them the information they need to guide the upbringing of the child. If the school was allowed to tell a child to play with a fork next to an electric socket, then the parents cannot intervene because the child hasn’t actually electrocuted themselves yet? And just how are the parent’s supposed to know if the school district has a Support Plan if the district is withholding that information?

In its final analysis, the district court viewed the alleged harm as dependent on a “chain of possibilities” too speculative to establish Article III standing.

Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, et al.,

Since both the District and Circuit Courts agree that Parents Protecting does not have standing, it appears that removing any imagination is a requirement to become a federal judge. Was the school district required by the court to provide documentation of the use of either the Administrative Guidance or the Support Plan? Not only is the very idea that a school district could keep information about the health of a child away from the parents an injury to their rights, but what are the mental harms of continually lying to one’s parents? Just how far will the school district go in their support plan? Will it be limited to names, pronouns, and dress code on school grounds? How about counseling or even treatment to assist in the transition? What are the long-term effects the parents would not be aware of? Could parents seek counseling for depression and other mood disorders that are commonly present in such transitions, without being aware what other counseling the child is getting? Will parents seek medical treatment without being aware of all of the medications the child may be taking? How can a parent give informed consent to any treatment if they are not informed about other treatments the child is receiving? In my mind, the only way the court could find the alleged harms too speculative to establish standing is willful ignorance.

Conclusion

What can we logically conclude from the decisions of these two courts? First, we need to admit that, among the transgender policies schools have adopted, this is not the worst. While the Eau Claire Area School District does not mandate the keeping of information from parents, it certainly does facilitate it. By listing a lack of support as a justification for allowing students to refuse permission for the school district to share information with the parents, they have replaced the parental right to oversee the upbringing of their children with the promotion of a political agenda. And the courts are going along with the same agenda. After all, if it found out the student started taking drugs, would the school be legally required to notify the parents? What if the school found out the child had another mental disorder, would the school be compelled to notify the parents? Then why not in this case? The answer is simple: The transgender agenda. The fact that the dangers this policy presents were beyond the imagination of the judges in these two courts says more to me about the agenda of these judges than of the quality of Parents Protecting’s case.

If you are a parent, I hope this case helps show you that the school districts are not looking out for the safety of your children, or at least not as a first priority. It also appears that these courts are more interested in state power than citizen’s rights. This is another example of why parents need to be more involved in their child’s education, and especially in the school board. I have to wonder if the members of Parents Protecting Our Children view running for and serving on the school board as one method of protecting their children. If not, maybe they should.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 21, 2024

• An ICC prosecutor seeks arrest warrants for leaders of both Israel and Hamas.
• Judge Merchan concluded a biased case with biased jury instructions.
• Does anyone else see that these cases have a common theme?

Late May in the United States is usually a time of cook-outs, the beginning of summer, and remembrance as we memorialize those who gave their lives in service to this country. Later May 2024 however, should be remembered for another death: The death of courts of justice.

First it was the International Criminal Court. Prosecutor Karim Khan, who sought arrest warrants for the leader of both Hamas and Israel, alleging he had reasonable grounds to believe they had criminal responsibility for war crimes. Second, barely a week later, Judge Merchan concluded his biased case against Donald Trump with biased instructions to the jury, which found Mr. Trump guilty on all 34 counts. After some consideration, I realized that these cases are so similar, they could be fraternal twins.

There’s been enough time since both of these cases made the news for me to really think about them. Not just the facts of the cases, but what they mean for our future. I was startled when I realized how related these two cases were, and just how much our reactions to them should be similarly parallel.

Punishing Political Opponents

Let’s face it, modern Israel has rarely gotten a fair shake when it comes to international organizations. What Mr. Khan did really shouldn’t surprise anyone who’s been following how Israel has been treated in the United Nations and the International Criminal Court (ICC).

The process for obtaining arrest warrants at the ICC may seem strange to many Americans. A panel of judges will review the evidence and determine if it supports the issuance of the warrants. This is not that different from our grand jury system, except it’s judges who will make the decision, not everyday citizens. In the U.S., when a grand jury finds sufficient evidence for a trial, they issue a true bill, allowing the prosecutor to proceed with the trial, bypassing some preliminary hearings. Since the ICC has no power to actually enforce a warrant though, I believe they are dependent on the nations who signed the Rome Statue to do so.

Mr. Khan is seeking these warrants in reaction to both the Hamas attacks on Israel on October 7th of last year, and Israel’s reaction. This is rather like issuing arrest warrants both to the mugger for an attack and their victim for defending themselves. While this is not what Donald Trump was charged with, New York State did have a law when I lived there where they could charge the victim of a violent crime for defending themselves if they had the opportunity to retreat and did not do so, even in their own home.

Donald Trump, on the other hand, was convicted of a misdemeanor whose statute of limitations had expired by claiming it was in furtherance of a federal election crime the U.S. Department of Justice refused to prosecute. While Mr. Khan’s request for arrest warrants have come less than a year after the initiating offense, the City of New York “sat” on their criminal allegations until an upcoming presidential election would be impacted by the trial. It’s rather hard to look at either situation and not see a political agenda.

Political Bias

Part of the political bias shown in both courts can be seen around the evidence considered. For example, the New York Times reported in April of this year that the number of aid trucks entering Gaza had doubled to over 400 per day, but the United Nations disputes that. The Associated Press reported that one of the major land crossings into Gaza was closed due to Hamas rocket attacks, and another by Israeli incursions. Yet Mr. Khan seems to blame only Israel for the humanitarian situation in Gaza. Even determining how much aid is entering Gaza is difficult. For example, Israel’s Coordination of Government Activities in the Territories states that 133 trucks of humanitarian aid, two tankers of fuel, and four tankers of cooking gas passed through the Kerem Shalom crossing in a single day. For that same day the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) claims only nine aid trucks passed through the crossing. All of the reporting I could find focused on “Israel’s incursion” into Gaza and its cities. The fact that this was in response to Hamas’ October 7th attack on Israel, the cruel and inhumane attacks on Israeli civilians rarely seem to be mentioned. Also, all of the blame for the conditions in Gaza seems to be laid at the feet of Israel, not Hamas, while ignoring it’s tactics of hoarding fuel and other supplies, and storing fuel and ammunition in and around hospitals, schools, and other civilian complexes. This biased news, not to mention the apparent biases of UNRWA and other U.N. organizations, may be what Mr. Khan is using to attempt to find some moral equivalence between Israel’s attempt to find and eliminate a criminal organization with the stated goal of their destruction, and the claims of genocide by palestinian supporters. Little attention seems to be given to the inhumane and cruel criminal attacks Hamas not only performed, but recorded and reveled in.

Similarly, the evil portrayal of Donald Trump and any future administration he may lead, may have led to the justification of the attitude of “Stop Trump at any cost” we saw in his New York City trial. From the difficulties of finding unbiased jurors to the treatment of defense objections and the refusal to allow defense expert witnesses related to the alleged crime, the alleged business records were in furtherance of the biased jury instructions. In fact, the entire trial seemed more about getting Trump for something than the actual administration of justice.

In both cases, the courts’ political opponents were painted as evil by using biased reporting, on biased information, from biased witnesses. All in all, it was an attempt to justify the treatment of the accused.

Impact Beyond the Court Rooms

Probably the greatest impact will have nothing to do with the courtrooms where these cases were heard.

Israel, like the United States, is not a party to the Rome Statue that created the International Criminal Court. That means that neither Israel nor the United States is obligated by treaty to enforce any warrant from the ICC. However, there are currently 124 countries that are parties, including Australia, Canada, France, Germany, Japan, Mexico, United Kingdom, and the mythical State of Palestine. That means, if I understand the Rome Statue correctly, should Mr. Khan get his warrant, those named would be subject to arrest if they were to enter any of the 124 party countries.

While any state in the Union can petition another state to extradite a criminal from another state, they must be a fugitive from justice for Article VI of the Constitution to require the accused be handed over to the claiming state.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

U.S. Constitution, Article IV, Section 2, Clause 2

In other words, in order for the governor of New York to demand of the Governor of Tennessee that I be delivered to New York, I must have fled from justice in New York in the first place. This decision in New York gives me one more reason why I should never return to the city of my birth or the state I lived in for most of my life. For those who follow the Constitution Study from the Empire State, along with my friends and family members who still call New York home, I hope you understand why I have no plans to return.

You may be saying to yourself, “Paul, as long as you obey the law, why wouldn’t it be safe for you to return to New York?” For the very same reason Donald Trump was convicted, for doing something in furtherance of a federal election crime that the federal government doesn’t even recognize. I have written and spoken repeatedly on what the Constitution says about how we elect the President of the United States, along with how both Congress and the states have corrupted that process. Can you not imagine the State of New York determining that such language is “disinformation”, and in that attempt, “conspired to promote or prevent the election of any person to a public office by unlawful means”, just as they did with Trump’s payment in exchange for a non-disclosure agreement? I know I’m a small-fry and almost no one knows who I am, but do I really want to take that chance? Do I want to support a state that has fallen so far from its duty to secure our rights?

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

Declaration of Independence

It wasn’t just Alvin Bragg or Judge Juan Manuel Merchan who turned justice on its head in New York City; it was twelve men and women who participated as well. I was not in the courtroom to see the evidence or hear the testimony, neither was I in the jury room during deliberations. However, if 60 of the first 96 jurors in the pool admitted they could not be impartial, how many did not admit to their biases?

Conclusion

I think there’s a lot we can conclude from these two cases. First, the similarities. Both appear to have serious political biases as their root. That doesn’t mean there isn’t some truth to their arguments. From what I’ve found out, Israel has gone to extreme lengths to prevent civilian casualties. They’ve contacted civilians in Gaza, warned them about imminent military actions, published safe zones where civilians can stay and safe routes to get there. That’s not to say Israel has been perfect in their actions. The recent fire at a tent camp is still being investigated, along with other accusations. Similarly, the accusation that Donald Trump falsely listed a pay-off as a legal expense may be true, even if the statute of limitations has expired. The accusations of different standards at the U.N., the ICC, and American courts have been going on for decades. However, both Khan’s request for an arrest warrant of a western official, and the prosecution of a former president, not to mention the presumptive nominee of a major political party, are unprecedented, and I believe portend bad things in our future. The politicization of our criminal justice systems places not only the United States, but the entire western world, on par with the banana republics we so often chastise.

Similarities aside, there are some differences as well. While any ICC arrest warrant is meaningless in Israel, the conviction of Donald Trump does have many implications, both legal and political. Should Trump be sentenced to jail time, how will the Secret Service, which not only has a duty but the legal power to protect the former President, handle this new territory? There is already a move in Congress to terminate Secret Service protection for anyone convicted of a felony, however by the time any such legislation would pass, it would be ex post facto if applied to Donald Trump, and therefore unconstitutional. In the light of recent events though, does anyone believe that actually matters anymore?

Trust in our institutions has been falling fast. Based on the reactions to the Trump conviction, it appears whatever faith people had is either completely gone or eroding at an astounding rate. If Mr. Khan gets his warrants, especially in the light of reports of Hamas members in UNRWA and the ongoing animosity toward Israel in many U.N. agencies, it seems that trust in the western world may be harder to find than a unicorn. While my lack of faith in their so-called justice system has led me to avoid the State of New York, I’m considering other states to avoid as well, as I do not see this ‘slouching toward Gomorra’ changing course any time soon. To those of you who are looking toward a Donald Trump election victory to save us, I remind you of the words of George Washington:

The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Washington’s Farewell Address 1796

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 11, 2024

• Do you permanently loose your rights when convicted of a crime?
• Can the federal government take away your rights protected by the Second Amendment for a crime punishable by a year in jail?
• What are the potential violations of the Constitution this law presents?

According to federal law, if someone is convicted of a crime and punished with more than one year in jail, they lose their rights protected under the Second Amendment. A recent decision by the Ninth Circuit Court not only brought that federal law into question, but decided it was wrong. The court didn’t find that this federal law violated the Constitution, rather they found it violated Supreme Court’s Bruen decision. Is that all this federal law violates?

The question about the constitutionality of convicted felons losing their voting and gun rights for life comes up regularly here at the Constitution Study. In response, I point out that James Madison said:

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

James Madison – For the National Gazette, 27 March 1792

If our rights are our property, then they are protected under the Fifth Amendment’s Due Process Clause. However, the Fifth Amendment doesn’t say you cannot be deprived of the property you have in your rights, only that it has to be done via due process. If a person is charged, given a speedy and public trial by a jury of their peers, and convicted with due process, then the protections under that Fifth Amendment have been served. The problem I have is the way this is implemented, especially at the federal level.

The Federal Law

Let’s start out by looking at the law in question in this case.

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”

United States v. Duarte – Ninth Circuit Court Opinion

As always, we need to look not only at the statute cited, but its context. For example, §922(g) states:

(g) It shall be unlawful for any person-

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 USC §922(g)

Let’s break this down. First, a person described in subsection (g), which includes a laundry list of prohibited possessors, is not allowed to ship or transport firearms or ammunition in interstate or foreign commerce. This comes under the Commerce Clause in Article 1, Section 8, Clause 3.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution – Article 1, Section 8, Clause 3

Subsection (g) also prohibits those listed from:

possess in or affecting commerce, any firearm or ammunition;

18 USC §922(g)

This is a problem, since Congress is not authorized to regulate commerce in general, only interstate and foreign commerce.

or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 USC §922(g)

Neither is Congress authorized to regulate items which have been shipped through interstate or foreign commerce, only said commerce itself. This means that most of 18 USC §922(g) is unconstitutional, and therefore void. The Supreme Court recognized this in several cases, including ex parte Siebold:

An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.

Ex parte Siebold :: 100 U.S. 371 (1879)

Ninth Circuit Opinion

Unfortunately, this is not what the Ninth Circuit panel found.

Steven Duarte, who has five prior non-violent state criminal convictions—all punishable for more than a year— was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.

United States v. Duarte – Ninth Circuit Court Opinion

It doesn’t sound like Steven Duarte is a very nice man. Five times he has been convicted of non-violent crimes punishable by more than one year in prison. Like anyone else though, Mr. Duarte’s rights should be protected, and we, as a people, should do all we can to insure that.

Duarte now challenges the constitutionality of his conviction. He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, … § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society. We agree.

United States v. Duarte – Ninth Circuit Court Opinion

Notice that Mr. Duarte isn’t challenging his conviction because it violates the Second, Fifth, and possibly the Eighth Amendments to the Constitution, but because it violates the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, which says it violates the Second Amendment. Not surprisingly, the federal government disagrees with Mr. Durante.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge. Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform.

United States v. Duarte – Ninth Circuit Court Opinion

Again, the court doesn’t find for Mr. Durante because of what the Constitution says, but because of what the Supreme Court said. This may explain the dissenting opinion:

Judge M. Smith dissented. He wrote that until an intervening higher authority that is clearly irreconcilable with Vongxay is handed down, a three-judge panel is bound by that decision.

United States v. Duarte – Ninth Circuit Court Opinion

In Judge Smith’s opinion, until the Supreme Court (the only intervening higher authority in the judicial branch), says that Bruen or some other decision specifically overturns Vongxay, the court has to follow it. Apparently, his oath to support the Constitution of the United States isn’t a high enough authority to intervene over their previous decision.

Law Abiding Citizens

Judge Smith did bring up a point I want to dig into deeper.

Instead, Bruen reiterates that the Second Amendment right belongs only to law-abiding citizens. Duarte’s Second Amendment challenge to 18 U.S.C. § 922(g)(1), as applied to nonviolent offenders, is therefore foreclosed.

United States v. Duarte – Ninth Circuit Court Opinion

If someone is convicted of a crime, does that mean they are forever labeled as not a law-abiding citizen? Does a single conviction, even of a non-violent crime, leave someone with something equivalent to the mark of Cain, forever labelled a criminal? What about those who “fulfill their debt to society”? Does completing their sentence fulfill their debt? Are they forever held liable for their transgression of the law?

I can see a rational behind prohibiting those with violent felony convictions, especially multiple such convictions, from possessing firearms, but we still have issues with §922(g). Because §922(g) does not ban “felons in possession”, as many refer to it, but people who have been convicted of crimes punishable by more than a year in prison. I believe there are several states that have misdemeanors which can carry punishments of a year or more in prison. I do not believe the opinion of the court states whether or not Mr. Duarte’s convictions were felonies or not, only that he was sentenced to more than a year in prison for each of them.

Other Problems with §922(g)

If we can agree that there are crimes and situations where the punishment should include the loss of certain rights, such as the right to the possession of firearms, what is the proper way to go about it?

First of all, except for Washington, D.C. and land purchased from the states, Congress does not have the authority to write general legislation for the nation. Congress does have the authority to regulate interstate and foreign commerce, but the attempt to boot-strap this legislation by claiming to regulate everything that passes through interstate or foreign commerce would be laughable if so many courts didn’t follow along. If Congress can claim the power to regulate everything that passes through commerce, then they can regulate just about everything in our lives. This reminds me of the warning James Madison gave about the General Welfare Clause.

In short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

James Madison – Bounty Payments for Cod Fisheries

If everything that passes through interstate or foreign commerce can be regulated by Congress, then everything you buy can be regulated through commerce. Even worse, since §922(g) doesn’t simply claim to regulate commerce, but the rights of people to possess a product that passed through interstate commerce at some point, it is pretty much everything we purchase in this day and age.

So Congress does not have the authority to pass general legislation outside of legitimate federal land, neither does it have the authority to regulate products. Only commerce. So it appears §922(g) is unconstitutional and therefore invalid.

There are more questions we should be asking. For example, when someone is sentenced, is that the limit of the punishment? Is it due process for Congress to impose a penalty via legislation beyond what is imposed by the judge? How can a law passed by Congress consider the circumstances in a specific case? When should someone be deprived of their rights as punishment for a crime? Should someone be shown be a danger to society before government deprives them of their rights? Is the punishment of permanent loss of rights cruel or unusual?

Brown v. United States

Interestingly, later the same month the Supreme Court decided another case involving the Armed Career Criminal Act, Brown v. United States.

These cases concern the application of the Armed Career Criminal Act to state drug convictions that occurred before recent technical amendments to the federal drug schedules.

Brown v. United States – Supreme Court Opinion

This case revolves around the question of whether the conviction in state court by the two defendants, Justin Rashaad Brown and Eugene Jackson, qualified as “serious drug offenses”.

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. §924(e)(1)

The Supreme Court found the following:

Held: A state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of that conviction.

Brown v. United States – Supreme Court Opinion

Conclusion

Once again we see the courts coming to the correct decision for the wrong reasons. The Circuit Court didn’t find that §922(g) violated the Constitution so much as it violated the Supreme Court’s opinion in Bruen. It didn’t even touch on the Fifth or Eighth Amendment issues. Don’t get me wrong, I believe the court is correct in finding §922(g) unconstitutional, but I have to wonder what the unintended consequences are the rationale are going to be. I would not be surprised if this gets appealed to the Supreme Court, and who knows how they might decide the case.

Speaking of the Supreme Court, since their decision was not based on the constitutionality of §922(g), but whether the crimes committed by the two defendants rose to the level of serious drug offense under §924(e)(1), I don’t think there’s enough information to speculate how the court might find. If the United States appeals the Ninth Circuit’s decision, I believe the court’s decision will be influenced by the argument for Mr. Duarte. If his attorney continues with the Bruen based defense, that might appeal to the judicial supremacy that the justices frequently exhibit. I wonder what would happen of the Fifth and Eighth Amendment issues were added to the argument. Since we do not have a crystal ball, we will all have to wait and see if the case is appealed and accepted.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 3, 2024

• Why did the Founding Fathers place the power of the purse in the hands of Congress?
• Does Congress have the ability to give up the power of the purse?
• Why would Congress voluntarily give up a tool as powerful as the power of the purse?

Article I, Section 9, Clause 7 of the Constitution states “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;”. That seems pretty straight forward. So how could Congress establish a government agency funded not by appropriations from the treasury, but by fees paid to another federal entity? This was the question brought to the Supreme Court in the case CFPB v. Community Financial Services Assn. of America. Sadly, it seems that the Supreme Court once again showed they have a hard time reading and understanding the English language.

One of the features of court opinions I often point out is how rarely they actually quote the Constitution. So I was initially pleased when the Supreme Court actually quoted the Constitution in the case CFPD v. CFSA.

The Constitution gives Congress control over the public fisc subject to the command that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Art. I, §9, cl. 7.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

Sadly, that initial feeling of pleasure quickly evaporated as I read the syllabus of the opinion.

For most federal agencies, Congress provides funding through annual appropriations. For the Consumer Financial Protection Bureau, however, Congress provided a standing source of funding outside the ordinary annual appropriations process. Specifically, Congress authorized the Bureau to draw from the Federal Reserve System an amount that its Director deems “reasonably necessary to carry out” the Bureau’s duties, subject only to an inflation-adjusted cap.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

For over 220 years Congress had funded federal agencies through appropriations from the Treasury. Then, in 2011, Congress decides to fund a new agency in a different way. After this new agency promulgated rules that members of the CFSA objected to, the trade agency sued, making several claims of both statutory and constitutional violations.

In the operative complaint, the associations argued, among other things, that the Bureau “takes federal government money without an appropriations act” in violation of the Appropriations Clause.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

For this reason, the court looked to the Appropriations Clause, but it seems they only focused on one word: Appropriations.

Appropriations Clause

Since the court seemed so focused on the word “appropriation”, let’s start there as well.

The act of sequestering, or assigning to a particular use or person, in exclusion of all others; application to a special use or purpose;

Appropriation – Webster’s 1828 Dictionary

An appropriation is merely the setting aside of something to a particular purpose. In the case of the Appropriations clause, it’s the setting aside of money.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;

U.S. Constitution, Article I, Section 9, Clause 7

So the U.S. Treasury cannot send any money until Congress has set it aside to a specific purpose by passing a law. Seems straight forward enough.

This case was first heard at the District Court, which found:

[T]he court explained that “[t]he Appropriations Clause ‘means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.’” … And, because “a statute authorizes” the disbursements from the Federal Reserve System’s combined earnings to the Bureau “up to a certain cap,” the District Court concluded, “there is no Appropriations Clause issue.”

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

According to the District Court, Congress passed a law to authorize the Federal Reserve System to spend money, so there is no Appropriations Clause violation, However, the case didn’t end there.

On appeal, the associations renewed their argument that the “Bureau’s funding mechanism usurps Congress’s role in the appropriation of federal funds” by allowing it to take “federal money without an appropriations act.”

The Court of Appeals agreed with this argument and reversed. … Drawing on the Constitution’s text and history, the court concluded that the Appropriations Clause “does more than reinforce Congress’s power over fiscal matters; it affirmatively obligates Congress to use that authority ‘to maintain the boundaries between the branches and preserve individual liberty from the encroachments of executive power.’” … By giving the Bureau a “self-actualizing, perpetual funding mechanism,” the court reasoned, Congress in effect abandoned this obligation. It was not enough that Congress enacted the law authorizing the Bureau’s funding because a “law alone does not suffice—an appropriation is required.” … The court thus held that the Bureau’s funding mechanism violates the Appropriations Clause.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

The CFSA argued, and the Circuit Court agreed, that it’s not good enough for Congress to pass a law, but they must pass an actual appropriations act for the purpose.

Court Opinion

The Supreme Court disagreed.

Held: Congress’ statutory authorization allowing the Bureau to draw money from the earnings of the Federal Reserve System to carry out the Bureau’s duties satisfies the Appropriations Clause.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

How did the court come to this conclusion?

Under the Appropriations Clause, an appropriation is a law that authorizes expenditures from a specified source of public money for designated purposes.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

So far, the court is correct. An appropriation, in this context, is a law that authorizes expenditures from a specific source for a designated purpose. Sadly, the court’s decision quickly goes off the rails.

The Bureau’s funding is “drawn from the Treasury” and is therefore subject to the requirements of the Appropriations Clause.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

Except the CFPB’s funding isn’t “drawn from the Treasury”, it’s drawn from the Federal Reserve, a semi-executive agency. The court recognizes that, under the Appropriations Clause, an appropriation is a law authorizing expenditures from a specific source, but that source must be the U.S. Treasury. So does the CFPB funding even raise an Appropriations Clause question?

Since the Dodd-Frank bill that created the CFPB appears to have been attempting to find a funding source that was not up for regular congressional approval, we have to wonder why? I believe Justice Alito gives us a clue in his dissent.

Since the earliest days of our Republic, Congress’s “power over the purse” has been its “most complete and effectual weapon” to ensure that the other branches do not exceed or abuse their authority. … The Appropriations Clause protects this power by providing that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Art. I, §9, cl. 7. This provision has a rich history extending back centuries before the founding of our country. Its aim is to ensure that the people’s elected representatives monitor and control the expenditure of public funds and the projects they finance, and it imposes on Congress an important duty that it cannot sign away. “Any other course” would give the Executive “a most dangerous discretion.”

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

There’s more to the Appropriations Clause than just the appropriation of money.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

While the Treasury is required to regularly provide a statement and an account of all receipts and expenditures, the Federal Reserve is not.

U.S. Constitution, Article I, Section 9, Clause 7

The Board of Governors and the Federal Reserve Banks annually prepare and release audited financial statements reflecting balances (as of December 31) and income and expenses for the year then ended. The Federal Reserve Bank’s financial statements also include the accounts and results of operations of two limited liability companies (LLCs) that have been consolidated with the Federal Reserve Bank of New York and one LLC that has been consolidated with the Federal Reserve Bank of Boston.

Fed Financial Statements

It appears that Dodd-Frank attempted to bypass not only the routine appropriations process to have a regular source of funding, but the reporting requirements of the U.S. Treasury as well. This appears to be an attempt to remove CFPB from congressional oversight, which brings up another question. Was Congress attempting to establish an executive agency that was outside the “power of the purse” the Constitution delegated to Congress?

Dereliction of Duty

The Constitution is very specific. Congress can only collect taxes of various forms for three very specific purposes, and consumer protection is not one of them.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

U.S. Constitution, Article I, Section 8, Clause 1

Congress is not authorized to collect “fees” to fund an agency, or anything else for that matter. Furthermore, by funneling these ill-gotten fees through the Federal Reserve, Congress is attempting to hide this money from the Appropriations Clause reporting requirements, thereby hiding it from the American people. In short, it appears Congress has been “cooking the books”, by hiding a portion of its taxing and spending through the Federal Reserve. Why would Congress create an agency that was outside its most powerful oversight tool? Was it the intent of Congress to create an unaccountable agency? Or was it the intent of a couple of Congressmen and the rest of Congress simply went along with it? It any case, what we have here is not a violation of the appropriations part of the Appropriations Clause, but of its reporting requirements. More importantly, we have a violation of the Tenth Amendment, since Congress has empowered a federal agency outside of the United States Treasury to spend money, a power not delegated to Congress.

Conclusion

Leave it to lawyers and judges to twist a simple sentence to make it say something completely different. The Appropriations Clause is pretty clear that money cannot be spent out of the Treasury without appropriations. This court though, has somehow deemed a semi-government agency, the Federal Reserve, is the United States Treasury. The Congress is not delegated the power by the Constitution to allow entities other than the Treasury to spend public money, especially for the purpose of hiding it from the American people. As Justice Alito stated in his dissent:

The Court upholds a novel statutory scheme under which the powerful Consumer Financial Protection Bureau (CFPB) may bankroll its own agenda without any congressional control or oversight.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

Once again, the court turns its head away from the law and justice for a political agenda. Of the nine justices on the court, only two, Alito and Gorsuch, saw some of the problems in this funding mechanism.

What’s even worse, now that the court has placed a false imprimatur of legitimacy to the CFPB’s funding mechanism, what is to stop Congress from doing this for other agencies?

Finally, the associations contend that if the Bureau’s funding mechanism is consistent with the Appropriations Clause, then Congress could do the same for any—or every—civilian agency, allowing the Executive to operate free of any meaningful fiscal check.

Consumer Financial Protection Bureau et al. v. Community Financial Services Association Of America, Ltd.

Imagine a country where agencies like the EPA, DOJ, and Social Security no longer need congressional approval to spend money, and none of the details are reported? All these agencies would need is to tell the Federal Reserve how much they want, as long as they stay within the limits Congress has set. I guess that’s one way for Congress to get out of its responsibility to pass a budget. All they’d have to do is pass a single one-time bill saying how much an agency could draw from the Federal Reserve, and how much that pot would grow every year. What do you think our national debt would look like then?

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 28, 2024

• The WHO Pandemic Agreement includes a lot of powers for this U.N. agency.
• Many claims about what would happen should President Biden sign this agreement.
• Except all of the claims that this “treaty” would be legally binding in the United States are not true.

The World Health Organization’s (WHO) Pandemic Agreement has been in the news again lately. Not only does this United Nation organization want the power to take over the world in a “health emergency”, but numerous politicians and commentators keep claiming that if Joe Biden signs this treaty, it would be legally binding. The truth is that is just not true, for several reasons.

The WHO Pandemic Treaty

With all of this talk about the WHO treaty, you may be surprised to find out it doesn’t call itself a treaty. Rather its actual title is the WHO Pandemic Agreement. This detail will become important later in this article. As you may expect, this agreement starts with some grandiose statements, many of which are just as grandly wrong.

Recognizing that the World Health Organization is fundamental to strengthening pandemic prevention, preparedness and response, as it is the directing and coordinating authority on international health work,

Revised draft of the negotiating text of the WHO Pandemic Agreement

As more and more information comes to light, we find that recommendations from WHO regarding lockdowns, masks, and the mRNA “vaccine” puts in question how effective they were in preventing the spread of the pandemic. Which brings into question the purpose of this agreement.

The objective of the WHO Pandemic Agreement, guided by equity, and the principles and approaches set forth herein, is to prevent, prepare for and respond to pandemics.

Revised draft of the negotiating text of the WHO Pandemic Agreement

Who would decide how to prevent, prepare, and respond to pandemics under this agreement? It shouldn’t surprise anyone that it would be the bureaucrats in the WHO calling the shots. While much of the agreement’s language is fairly vague, that doesn’t mean there aren’t problems. Language like this:

The Parties commit to take measures to progressively strengthen pandemic prevention and coordinated multisectoral surveillance, taking into account national capacities and national and regional circumstances. …

The Parties shall contribute to the further development and updating of international standards and guidelines to detect, reduce risks of, monitor and manage zoonotic spill-over and spill-back, in collaboration with WHO and relevant intergovernmental organizations. …

[and]

Each Party commits to develop, strengthen and maintain its health system, including primary health care, for pandemic prevention, preparedness and response, taking into account the need for equity and resilience, with a view to the progressive realization of universal health coverage.

Revised draft of the negotiating text of the WHO Pandemic Agreement

There is plenty of room in this language for the WHO to claim sovereignty over every country that signs on. This becomes quite apparent when you start reading Article 19 of the agreement.

1. The Parties shall cooperate, directly and/or through relevant regional or international bodies, to sustainably strengthen pandemic prevention, preparedness and response capacities in countries, particularly developing countries, which are Parties to the WHO Pandemic Agreement or the International Health Regulations (2005) (hereinafter referred to collectively as “Cooperating Parties”), …
2. The Parties shall, upon request, facilitate the provision of technical assistance and support for those Cooperating Parties that have requested such assistance or support, in particular developing countries, either bilaterally or through relevant regional and/or international organizations.

Revised draft of the negotiating text of the WHO Pandemic Agreement – Article 19

What are these “Cooperating Parties” supposed to cooperate on? Sharing technical, scientific, and legal expertise. Oh, and financial support as well. The part that got my attention was the inclusion of the International Health Regulations into this agreement. As you may have heard, there have been some interesting amendments proposed to these regulations. Amendments like:

“standing recommendation” means non-binding advice issued by WHO for specific ongoing public health risks pursuant to Article 16 regarding appropriate health measures for routine or periodic application needed to prevent or reduce the international spread of disease and minimize interference with international traffic;

“temporary recommendation” means non-binding advice issued by WHO pursuant to Article 15 for application on a time-limited, risk-specific basis, in response to a public health emergency of international concern, so as to prevent or reduce the international spread of disease and minimize interference with international traffic;

Article by Article Compilation of Proposed Amendments to the International Health Regulations (2005) submitted by States Parties in the context of Decision WHA75

Notice how these “recommendations” would no longer be non binding? I guess that means the WHO would consider these recommendations legally binding on parties to these agreements. Furthermore, these amended regulations have an amended purpose.

The purpose and scope of these Regulations are to prevent, protect against, prepare, control and provide a public health response to the international spread of diseases including through health systems readiness and resilience in ways that are commensurate with and restricted to public health risk all risks with a potential to impact public health, and which avoid unnecessary interference with international traffic and trade, livelihoods, human rights, and equitable access to health products and health care technologies and know how.

Article by Article Compilation of Proposed Amendments to the International Health Regulations (2005) submitted by States Parties in the context of Decision WHA75

There are also some fundamental principles that need to be considered.

The implementation of these Regulations shall be guided by the goal of their universal application for the protection of all people of the world from the international spread of disease. When implementing these Regulations, Parties and WHO should exercise precaution, in particular when dealing with unknown pathogens.

Article by Article Compilation of Proposed Amendments to the International Health Regulations (2005) submitted by States Parties in the context of Decision WHA75

Even with this brief look at these two documents, I hope you can see why so many people are concerned about the loss of sovereignty should the Biden Administration sign on to these two agreements. However, there are the constitutional issues we need to examine as well.

The Constitutional Issues

To truly understand the lie that is being told about this agreement, we need to start with an examination of the Treaty and Supremacy Clauses.

No president has the authority to sign a treaty on their own. As Article II clearly states, the President:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

U.S. Constitution, Article II, Section 2, Clause 2

So if Joe Biden follows through with his promise to sign the WHO Pandemic Agreement, legally it will be meaningless in the United States unless and until the Senate consents to it. “But Paul” you say, “this is not a treaty, it’s an agreement.” While some have claimed that the President can bind the United States to international agreements as long as they are not treaties, that isn’t true. Look at the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Read the Constitution and you will not find the power to sign binding international agreements delegated to the President. The only place the power to sign such documents lies is in the Treaty Clause, which requires both the advice and consent of the Senate.

What if the Senate consents to this agreement, wouldn’t that make it legally binding? Which leads us to the Supremacy Clause

This 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;

U.S. Constitution, Article VI, Clause 2

In order for any treaty to be considered the supreme law of the land, it must be made under the authority of the United States. Where does the United States get its authority? From the Constitution of course. So, in order for a treaty, or any “treaty like device”, to be considered legally binding on the United States, the Several States, or any of its people, it must exercise a power that the Constitution has already delegated to the United States. Look very closely and you will not find the power to regulate public health delegated to the United States. You may ask, “But what if it’s an emergency?” Look again and you’ll see, there is no emergency clause in the Constitution. That means, whether or not an American president signs the agreement or the accompanying International Health Regulations, these rules are not legally binding upon the United States. They will only have an effect here if the American people are distracted by lies.

The Treaty “Shell Game”

As a young boy, I learned about a game played in the streets, a game you could not win. The game is called “Three Card Monte”. A variation of the shell game, it works by distracting the “mark” while you play with the cards. Something very similar appears to be happening with the WHO agreement. Just as the Monte dealer cries out “Watch the lady, keep track of the lady!”, people today are crying “If Joe Biden signs this agreement American sovereignty will end!” Nothing any president can do can take away your sovereignty. Sadly, most Americans have voluntarily given up their sovereignty by falling for the lies that the president can do things via international agreement that he cannot do under the Constitution.

Let’s picture a future where some American president has signed the WHO Pandemic Agreement and the International Health Regulations, and the Senate has “ratified” these treaties. What happens then? First, since these “treaties” were not made under the authority of the United States, they are not the supreme law of the land. Further, the signing of these “treaties” would be an unconstitutional act.

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County, 118 U.S. 425 (1886)

Then again, since members of Congress seem almost universally ignorant of the document they took an oath to support, I’m sure the vast majority would think these false treaties valid. However, any legislative acts made in support of these fake “treaties” would not be constitutional, and therefore void. As Alexander Hamilton said in Federalist #78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Alexander Hamilton – Federalist Papers #78

Since neither the President nor Congress is likely to recognize the criminal activities they were committing, many would look to the courts to protect us. Since these justices went to the same law schools that refuse to teach the supreme law of the land, can we really expect protection from this branch of government? A quick look at the Supremacy Clause should show you not only that the decision of a court is not part of the supreme law of the land, but that the judges are bound to the Constitution, not the other way around. Of course, that will not stop those in government, at all levels, from turning their back on their oaths of office and attempting to place free citizens under the thumb of these tyrannical “treaties”. Which leaves us with only one way to protect our rights and where we should have started in the first place: With We the People.

Conclusion

So where does this leave us? I fully expect President Biden will sign the WHO Pandemic Agreement. Why would he do so? I believe that’s pretty obvious as well. There are forces in the world that believe they know better than everyone else. How we should live our lives, how we should spend our money, and how we should treat an emergency like a pandemic. The only way these people can have that kind of power is by creating a government above the nations. That is what the United Nations has become, and with the help of the World Health Organization, the World Economic Forum, and our own sellouts in the United States, they will subjugate us to the will of others.

I’m reminded of the famous picture from Tiananmen Square. The one of a single man standing before a tank. A single man, standing for his rights and those of his family. A single man, alone, but willing to do what is right. I don’t think those who would stand against these “treaties” would be alone. I believe there are hundreds, maybe even thousands, of Americans who recognize that the Constitution of the United States is their legal authority to stand athwart those who would implement these fake “treaties” and say no. They recognize that there is not a court, legislature, or executive in this country who can legally violate the supreme law of the land, and are willing to stand for that conviction. Because anyone who would sign such an agreement, vote for legislation to implement such an agreement, or decide a case in favor of such an agreement, is not merely acting against their oath of office. They are committing insurrection:

A rising or rebellion of citizens against their government, usually manifested by acts of violence.

Insurrection – The Free Legal Dictionary

You see, the dirty little secret that everyone seems to be forgetting is that, in the United States, the government is not the person in office, but the offices created by the Constitution. And when someone attempts to subvert the words of the Constitution, they are subverting the only legal government for the United States. Should these international organization attempt to subvert the Constitution, it could be said they are levying war against the United States. Meaning anyone who gave them aid and comfort would be committing treason. If you’ve followed The Constitution Study for any length of time, you should know that I do not use the term “treason” lightly.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 21, 2024

• Does the Constitution still matter anymore?
• Is the Constitution a magically document that will save the day?
• Or is it the only tool that can restore our rights.

I meet a lot of people who think the Constitution is useless, while others wonder how people can get away with violating it. While these may appear to be opposing positions, I believe they stem from the same misconception: That the Constitution of the United States is some superhero that will come flying in to save the day. Rather, the Constitution is ink on parchment, a tool and nothing more. Like any other tool, the Constitution is absolutely useless unless it is picked up and wielded. And like any other tool, unless you learn how to use the Constitution, you’re much more likely to crush your own thumb than those who are infringing on your rights.

What is the Constitution

We need to start at the beginning. What is the Constitution? Yes, it’s ink on parchment, words on paper. If that’s all it is, then why do so many people revere it? In the Supreme Court case Marbury v. Madison, we find:

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation,

Marbury v. Madison Opinion

So if the Constitution is the fundamental and paramount law of the United States, why is it violated so often? Because the Constitution is just laws.

A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.

Law – Webster’s 1828 Dictionary

The Constitution is not some magical incantation, or spell that forces all who hear it to comply. Like any other law, it’s powerless without law enforcement.

That which gives energy or effect; sanction. The penalties of law are enforcements.

Enforcement – Webster’s 1828 Dictionary

In other words, the Constitution, like any other law, is merely a tool, a means of articulating the rules. It’s their enforcement that gives laws power. The Marbury court stated that the Constitution forms the fundamental and paramount law of a nation, or as Article VI, Clause 2 states, the supreme law of the land:

This 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;

U.S. Constitution, Article VI, Clause 2

However, all this vaunted talk of supreme, fundamental, and paramount laws mean absolutely nothing unless and until they are enforced.

The Constitution as a “Power” Tool

Most people I talk to about the Constitution see it as something someone else should be using to protect their rights. While I agree, people like politicians, judges, and attorneys should be using the Constitution enforcing the rules of the Constitution, today they show little interest in fulfilling the oath they took to support it. Part of the reason, I believe, is the fact that most politicians and all judges and attorneys learn their craft in law schools. Sadly, it appears that these supposed schools of law completely ignore the supreme law of the land. For five years I have asked every judge, attorney, or anyone who attended law school a simple question. Did they study the actual Constitution in law school or did they study “constitutional law”? In those five years I have had exactly one person say he studied the Constitution in law school. “Constitutional law” is not law because it did not go through the lawmaking process. Rather, it’s the opinions of judges, passed down and manipulated over generations of attorneys, in order to to arrive at the outcome they sought. Many of the law school graduates I have met stated how they studied the Constitution in other ways, but the schools dedicated to teaching the law have failed to teach the students the supreme law of the land. To understand why this is so important, let’s take a look at how the Constitution functions.

What prevents Congress from making laws that control a person’s speech or what they can publish? Most people would say “The First Amendment!” The First Amendment may prohibit such actions, but can do nothing to prevent it. Only the enforcement of the First Amendment would render such a law null and void, and only the political backlash from such unconstitutional actions would prevent members of Congress from voting for such a law in the first place. It’s the same way a hammer cannot drive a nail until it’s picked up and swung properly. Yet in the United States today, Congress passes hundreds of unconstitutional laws and the executive agencies promulgate thousands of unconstitutional rules and regulations every year, yet no one seems concerned about it. Why? First, I believe that most politicians and bureaucrats have no clue what the Constitution actually says. I guess, in their case ignorance is bliss. Second, We the People rarely if ever actually provide the political backlash to dissuade government actors from their unconstitutional acts. Why do the American people do nothing when the supreme law of the land is violated? Again, I think there are two reasons. First, We the People know even less about the Constitution than those who went to law school. In this case ignorance is not bliss, but misery. Second, because we keep sitting around for “Captain Constitution” to fly in and save the day. Is this how the Constitution was meant to be wielded?

Who Wields The Constitution

When I was in high school, I was taught that the Constitution was only for politicians, judges, and lawyers, that it was to complicated for “average” people to understand. It wasn’t until decades later that I learned the truth about who the Constitution was written for.

The first clue to who the Constitution was written for comes from its own preamble.

We the People of the United States, … do ordain and establish this Constitution for the United States of America.

U.S. Constitution, Preamble

If We the People are the ones who ordained and established the Constitution for the United States, shouldn’t we not only know what it says, but be well educated on the subject? This is certainly what John Jay, our first Chief Justice of the United States, thought about it.

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

Mr. Jay thought that everyone should not only read and study the Constitution, but to teach it to the rising generations. In the opinion of the very first Chief Justice, it was not the responsibility of government to teach our children to be free, it’s each and every one of ours. And look at what we get for diligently reading and studying the Constitution: Tools! Reading and studying the Constitution gives us the tools to recognize when our rights are being violated, and the tools to defend and assert them. However, just like the first toolkit many of us got when we were young, these tools won’t do us any good if we keep them locked up and refuse to use them.

Adding Power to the Tools

Now we know where to get the tools we need, we should start figuring out how to put them to good use. There’s an old saying, “To a hammer, everything looks like a nail.” It expresses the idea of tunnel vision. If all you have is a hammer, the only thing you can do is drive things in as if they were nails. Thankfully, the Constitution is not a single tool, but a toolkit. And like any toolkit, there are some tools we use more often than others. That’s not to say the other tools are less valuable, but I’ve found a couple of tools that are almost universal in their ability to help the other tools work.

The Supremacy Clause

This 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;

U.S. Constitution, Article VI, Clause 2

I know we’ve already mentioned the Supremacy Clause, but there are a few things about this tool that may not be obvious at first. The Supremacy Clause clearly lists three things as the supreme law of the land. First, the Constitution. That seems pretty obvious. Second, the laws of the United States. but only those laws made pursuant to, or following, the Constitution. Lastly, treaties. Again, only those treaties made under the Authority of the United States. And where does the United States get its authority? Why from the Constitution, of course. This means that just because Congress passes a law, or the President signs a treaty with the advice and consent of the Senate, it does not make it the supreme law of the land. In fact, as Alexander Hamilton put it in Federalist Paper #78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Alexander Hamilton – Federalist Paper #78

Now, let’s look at what is not included as the supreme law of the land. Executive Orders are not the supreme law of the land, neither are rules and regulations made by the executive branch. Even the decisions of courts are not the supreme law of the land. In fact, the rest of the supremacy clause states:

and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2

In other words, the judges are bound to the Constitution, not the other way around. That sounds like a pretty beefy tool to me.

The Tenth Amendment

The next tool we need to have in our pocket is the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Simply put, if the Constitution doesn’t delegate a power to the United States, then it belongs to someone else. Though some people like to state that the Constitution implies powers it doesn’t specifically enumerate, that doesn’t match with what the Tenth Amendment says. Another important point, powers are delegated to the United States.

To entrust; to commit; to deliver to anothers care and exercise; as, to delegate authority or power to an envoy, representative or judge.

Delegate – Webster’s 1828 Dictionary

That means the powers not only had to exist before they were delegated to the United States, but they needed to be possessed by another entity. In this case, as the Tenth Amendment points our, the powers not delegated to the United States are reserved to the states or the people.

Kept for another or future use; retained.

Reserved – Webster’s 1828 Dictionary

That means that any power the Constitution does not delegate to the United States is yours, either directly or through your state.

These two clauses provide so much power to the other tools in the Constitution, it’s like going from a simple screwdriver to a power screwdriver. Sure, you have a right to not be deprived of life, liberty or property without due process of law (Amendments V & XIV), but the supremacy clause means no entity can legally place an exception to that law. It also means that when the federal government comes in to regulate something they have not been delegated the power to regulate, the Tenth Amendment is your legal authority to say no.

Conclusion

Hopefully now you have a better idea of the tools you have available, and are feeling encouraged to learn how to use them. I’m reasonably sure you feel like you’re standing there with your bag of tools, staring at a decrepit old apartment building and wondering what difference you can make. After all, the place is huge, it’s a mess, and the vast majority of the tenants either won’t do a thing or are actively trying to destroy the place. What can one person do in the face of such opposition?

Don’t miss the forest for the trees. Yes, the United States is a gigantic mess with hundreds of millions of people and fifty different states, all with their own agendas. You don’t have to fix the United States though; all you have to do is make your neighborhood better. That decrepit and messed up apartment building is made up of apartments, just as the United States is made up of individual states. Each of those apartments are made up of different rooms, just as the states are made up of counties, cities, and towns. So before you go trying to fix the United States, even before you try to fix your state, clean up your county, city, or town. Start by voting for representatives who understand the oath they will take to support the Constitution of your state and the United States. Many of them will not have studied these constitutions, so help them. Point out their oaths, what the Constitution actually says, and your expectation that they fulfill their oath. If they don’t, make sure the political backlash is both constitutionally sound and very, very public. To do that, you’ll also need to help your neighbors understand the Constitution and the consequences of ignoring it. That way, when your elected representatives screw up, and they will, it’s not just you pushing back, but a hopefully growing number of your neighbors. As those elected officials start looking at statewide offices, make sure they know you will hold them to their oaths just as firmly at the state level as you did at the local level. As more and more people across your state see the benefit of using the tools we have to keep our governments in check, they will start learning to use these tools as well, and your state will be not only be more constitutional, but freer as well. As this message spreads across the states, they will become more constitutionally sound and Washington, D.C. will become less important. After all, according to the supreme law of the land, there’s actually very little the federal government can legally do.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 14, 2024

• Do presidents have immunity for their official acts?
• If so, where in the Constitution do we find it?
• Is the Supreme Court going to make this up an immunity clause?

In one of the many cases against Donald Trump, his attorneys’ are claiming that he cannot be criminally charged for an act he performed in his official capacity as President. Why? Because of something called Presidential Immunity. Is there such a thing as Presidential immunity? If so, where is it stated in the Constitution? Or is the idea of Presidential immunity just the latest attempt to turn the President of the United States into a king?

There was a lot in the oral arguments for this case that didn’t set well with me, not to mention how much of the more than two and a half hours were spent on hypotheticals and concerns about future cases. I want to focus on the core question asked: Do Presidents have any form of immunity for their actions in office? This is a fairly long article because there were a lot of important statements made. We start with the Petitioner, D. John Sauer for Mr. Trump.

Petitioner

Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in office.

Trump v. United States – Oral Arguments

While many in the legal and political realm treat the office of President as an elected king, the idea that a President of the United States can commit crimes in office without even the possibility of accountability would be the true change in this nation as we know it. Remember, the idea that kings can never be wrong, and are therefore immune from prosecution, was one of the concepts from which we fought for independence. Simply because a president has not been charged yet doesn’t mean they shouldn’t have been, or that they should be in the future. You cannot claim that no one is above the law, and then place someone above it. Justice Thomas asked what I think is the most important question.

JUSTICE THOMAS: Mr. Sauer, to your last point, could you be more precise as to the source of this immunity?

1. SAUER: The source of the immunity is principally rooted in the Executive Vesting Clause of Article II, Section 1.

Trump v. United States – Oral Arguments

What is the Executive Vesting Clause?

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

U.S. Constitution, Article II, Section 1

Do you see anything about immunity there? I don’t. Perhaps it comes as part of the executive powers.

Having the quality of executing or performing; as executive power or authority; an executive officer. Hence, in government, executive is used in distinction from legislative and judicial. The body that deliberates and enacts laws, is legislative; the body that judges, or applies the laws to particular cases, is judicial; the body or person who carries the laws into effect, or superintends the enforcement of them, is executive

Executive: Webster’s 1828 Dictionary

Nope, no mention of immunity there. So where has Mr. Sauer come up with this idea of Presidential Immunity?

JUSTICE THOMAS: And how does that happen?

1. SAUER: That — the source of it, Justice Thomas, I think is, as you described in your separate opinion in Zivotofsky, for example, that the Executive Vesting Clause does not include only executive powers laid out explicitly therein but encompasses all the powers that were originally understood to be included therein.

Trump v. United States – Oral Arguments

OK, so Mr. Sauer points to an opinion Justice Thomas wrote in the case Zivotofsky v. Kerry:

Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause.

Zivotofsky v. Kerry

However, just because Justice Thomas said it’s so in a concurring opinion in this case doesn’t make it true. In fact, the Tenth Amendment states exactly the opposite:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

If a power is not delegated to the United States by the Constitution, it belongs either to the states or the people. The Constitution specifically delegates powers; it most certainly does not imply them.

Mr. Sauer also reached for the case Marbury v. Madison as evidence of presidential immunity.

And Marbury against Madison itself provides strong evidence of this kind of immunity, a broad principle of immunity that protects the president’s official acts from scrutiny, direct — sitting in judgment, so to speak, of the Article III courts, that that matches the original understanding of the Executive —

Trump v. United States – Oral Arguments

In fact, Marbury said no such thing. That court found:

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.

Marbury v. Madison Opinion

What the Marbury court actually found was that Congress could not give the judicial branch the power to order public officers around. A writ of mandamus is an order by the court to an official to perform their duties. Since the official in this case was a member of the executive branch, a constitutional branch of government, Congress did not have the authority to grant such power to the courts.

In response to a question from Justice Jackson, Mr. Sauer brought more evidence to support his position.

1. SAUER: I would quote from what Benjamin Franklin said at the Constitutional Convention, which I think reflects best the Founders’ original understanding and intent here, which is, at the Constitutional Convention, Benjamin Franklin said: History provides one example only of a chief magistrate who is subject to public justice, criminal prosecution. And everybody cried out against that as a violation.

Trump v. United States – Oral Arguments

I found the quote Mr. Sauer mentioned in Farrand’s Record of the Federal Convention of 1787, and it seems to say something quite different. The Congress was debating whether or not to remove from the impeachment clause that a president could be removed from office on impeachment and conviction for certain behaviors. During the debate, Mr. Franklin said:

Docr. Franklin was for retaining the clause as favorable to the executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst this as unconstitutional. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character. It wd. be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.

Farrand’s Record of the Federal Convention of 1787

This was not a discussion of criminal or even civil immunity from prosecution, only whether there would be a mechanism to remove the president from office in the Constitution. Yes, people cried out at the idea of removing the President, but I think Mr. Franklin provided a very good reason why he thought impeachment should remain in the Constitution. Seeing as removal from office on impeachment and conviction remained in the document, I would say Mr. Franklin’s position was the one adopted.

Mr. Sauer also called on George Washington’s Farewell Address to bolster his position. Washington did warn about the “alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension”, and how these have led to “frightful despotism”. He even went so far as to describe how that might happen.

The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Washington’s Farewell Address 1796

If there is one position in this case that Mr. Washington seems to be warning about, it’s the idea of consolidating power in the presidency. Perhaps that’s one reason why the idea of presidential immunity does not appear in the Constitution, as Justice Kagan pointed out.

JUSTICE KAGAN: The Framers did not put an immunity clause into the Constitution. They knew how to. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn’t provide immunity to the president.

And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?

1. SAUER: I would say two things in response to that. Immunity — they did put an immunity clause in in a sense. They put in the Executive Vesting Clause, which was originally understood to — to adopt a broad immunity principle that’s set forth in the very broad language of Marbury against Madison.

And also, they did discuss and consider what would be the checks on the presidency. And they did not say, oh, we need to have criminal prosecution. Right there at the Constitutional Convention, Benjamin Franklin says, we don’t have that. That’s not an option. Everybody cried out against that as unconstitutional. The structural check we’re adopting is impeachment. And they’re very clear on that in pages 64 to 69 of the second volume of [Farrand].

Trump v. United States – Oral Arguments

Again, Mr. Sauer refers to the non-existent immunity he believes inherent in executive powers, the reaction to Mr. Franklin’s statement about the impeachment clause, and the Marbury v. Madison case, all of which I’ve shown to be misleading.

The last of Mr. Sauer’s arguments I will deal with came in response to a question from Justice Barrett.

JUSTICE BARRETT: So, Mr. Sauer, you’ve argued that the Impeachment Clause suggests or requires impeachment to be a gateway to criminal prosecution, right?

1. SAUER: Yes. I think that’s the plain meaning of that second phrase in the clause.

Trump v. United States – Oral Arguments

There are actually two impeachment clauses: Article II, Section 4 which describe who can be impeached for what, and Article I, Section 3, Clause 7, which describes the punishment.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Constitution, Article I, Section 3, Clause 7

This clause states that, after conviction of impeachment, the party is still liable for any violations of the law. There’s nothing in this language that states the person involved is immune from criminal prosecution until they are removed from office by impeachment. Justice Barrett brings up another point.

JUSTICE BARRETT: Okay. So there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn’t say so?

1. SAUER: Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork, which is reaffirmed in the OLC opinions on this, where the — where Solicitor General Bork, in 1973, as to the issue of the vice president, reviewed the historical materials, and he said the sequence is mandatory only as to the president.

That is DOJ’s view of the original understanding of the Impeachment Judgment Clause, which is exactly our position. The sequence is mandatory only as to the president. Keep in mind that the criminal prosecution of a president — president prior to impeachment contradicts, in our view, the plain language of the Constitution but also hundreds of years of history and what DOJ admits is the Framers’ intent.

Trump v. United States – Oral Arguments

So Mr. Sauer is now quoting two sources from the Department of Justice, a part of the executive branch, that claim the Impeachment Clause requires something that it does not state. First, that the clause requires impeachment before prosecution, and second, that the rules for the President are different than for the Vice-President, other civil officers, and as Justice Barrett noted, federal judges.

Respondent

Now that Mr. Trump’s attorney has had his chance, it’s time for the government to present their case, made by Mr. Michael R. Dreeben, Counselor to the Special Counsel, Department of Justice.

This Court has never recognized absolute criminal immunity for any public official. Petitioner, however, claims that a former president has permanent criminal immunity for his official acts, unless he was first impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.

Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain.

Trump v. United States – Oral Arguments

I think Mr. Dreeben has stated the point quite effectively. The Supreme Court has never recognized absolute immunity for any public official. This novel idea has no foundation in the Constitution of the United States, and would seem to contradict the foundational principles that the United States would be a nation of laws, not men. Justice Thomas questioned the scope of Mr. Dreeben’s statement.

JUSTICE THOMAS: Mr. Dreeben, does the president have immunity, or are you saying that there’s no immunity, presidential immunity, even for official acts?

1. DREEBEN: Yes, Justice Thomas, but I think that it’s important to put in perspective the position that we are offering the Court today. The president, as the head of the Article II branch, can assert as-applied Article II objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing his constitutionally assigned functions.

Trump v. United States – Oral Arguments

Mr. Dreeben points out that the president does have the power to violate laws that would prevent him from performing his duties under Article II, what’s commonly referred to in this case as “core powers”. For example, if Congress passed a law criminalizing the appointment of members of certain groups to office, the President could point to his Article II appointment powers to say such law could not apply to his because it would be unconstitutional.

During her questions of the respondent, Justice Jackson tried to deal with a concern the petitioner had brought.

JUSTICE JACKSON: All right. The final sort of set of questions that I have have to do with what I do take as a very legitimate concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office.

I — I take that concern. I think it’s a real thing. But I wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency, that they understand that if they go after the former guy, soon they’re going to be the former guy and they will have created precedent that will be problematic.

Trump v. United States – Oral Arguments

Why haven’t previous presidents been criminally charged for their actions in office? I believe there are several reasons. First, we are in a unique election cycle where a previous president is again running for office against the man who defeated him. It’s like having two first-term incumbent presidents both running for office. Mr. Trump is not just a previous president, but an extremely polarizing one at that. Simply look at the claims of those who support him and those who oppose him. Second, we have witnessed over the last couple of decades, a willingness, especially from one political party, to take short-term gains for long-term losses. Simply look at the Senate getting rid of the filibuster for Supreme Court nominees, which quickly led to getting rid of it for all judicial nominees. In short, the traditions that have allowed competing parties to peacefully co-exist have been abandoned, just as George Washington warned us.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.

Washington’s Farewell Address 1796

Conclusion

Mr. Sauer’s argument for presidential immunity rested on several pillars: The Executive Vesting Clause, Marbury v. Madison, the reaction to Franklin’s statement in the Federal Convention of 1787, and George Washington’s Farewell Address. I’ve shown in this article that none of those documents in any way suggests a presidential immunity from criminal prosecution. While much of the questioning from the justices focused on the impact of their decision, primarily not in this case but in future ones, space prevents me from diving into that topic here. Let me summarize by stating that while each side stated their positions, the evidence brought by Mr. Sauer was a flawed as the rest of his case.

Mr. Sauer was not alone in having flaws in his argument. To me the saddest quote of all came from Mr. Dreeben.

We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law.

Trump v. United States – Oral Arguments

Rather than following the Constitution and laws of the United States, the courts, and all of the attorneys arguing the cases, are attempting to design a system to meets their ends. They are legislating from the bench, rather than applying the law to the case at hand. While Mr. Trump is attempting to turn the Presidency into a Kingship, the courts are trying to turn the United States into an oligarchy. All so one faction can have dominion over another. Quite a frightful despotism indeed.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 10, 2024

• There’s a lie that has been repeated so many times, people think it’s black letter law.
• Based on that lie, Maine has illegally joined 16 other states in a compact to elect the President by national popular vote.
• This national popular vote myth is more than confusion about how we elect the President, it’s an attempt to destroy the republic.

Maine’s governor allowed an unconstitutional piece of legislation to become “law” without her signature. LD 1578, An Act to Adopt an Interstate Compact to Elect the President of the United States by National Popular Vote is not only foolish and unconstitutional, but the latest attempt to change the United States from a union of republics into a monolithic democracy. It seems, just as with the Sixteenth and Seventeenth Amendments in 1913, states are not only willing to give up their sovereignty, but to deprive their citizens of their rights in pursuit of socialism. After all, I believe it was Vladimir Lenin who said “Democracy is indispensable to socialism.”

I opened this article with several statements you may have found bold, even unwarranted. Let me start by proving my point.

The National Popular Vote Compact

When I say that LD 1578 is unconstitutional, I’m not talking about the appointment of presidential electors. The legislation claims to join “an Interstate Compact to Elect the President of the United States by National Popular Vote”. There’s one serious problem with that: Maine, in fact no state, has the Constitutional authority to enter into such a compact without the approval of Congress.

No State shall, without the Consent of Congress, … enter into any Agreement or Compact with another State, or with a foreign Power,

U.S. Constitution, Article I, Section 10, Clause 3

This whole National Popular Vote movement is just another attempt to get around the Constitution. In this case, the purpose appears to be to destroy the structure of this union. Since Article I, Section 10, Clause 3 of the Constitution prohibits Maine, and the 16 other states who claim to have joined this compact, from entering into such an agreement, this legislation is void, but that doesn’t mean it won’t be used to destroy this nation.

Not only is this movement an attempt to convert the United States from a republic of republics, as required by Article VI, Section 4 of the Constitution, into a democracy, I see in the mantra of those who are supporting it, the call for socialism that Vladimir Lenin warned us about: To replace the decision of the individual states with a collective voice driven by those who seek communism and control. In fact, this whole National Popular Vote is nothing by a lie.

National Popular Vote Lie

A lie repeated often enough becomes the truth.

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Although often attributed to Vladimir Lenin, the origins of this idea can be traced all the back to an 1869 book entitled The Crown of a Life, where Isa Blagden said:

If a lie is only printed often enough, it becomes a quasi-truth, and if such a truth is repeated often enough, it becomes an article of belief, a dogma, and men will die for it.

Isa Blagden, The Crown of a Life, 1869

There is a lie that has been repeated in the United States since before I was born. This lie has passed beyond quasi-truth, article of belief, and even dogma, to be considered black letter law. What lie could hold such sway over the entire citizenry of the United States? That the people elect the President.

I have written repeatedly about the myth of the National Popular Vote and the process by which we elect the President and Vice-President of the United States, yet the lie persists. This lie has become such a part of our political lives that the ballots in two-thirds of our states repeat the lie every four years, claiming that the people are casting ballots for President, when that’s blatantly and observably not true.

Until recently, most states pointed out on their ballot that the people were not voting for candidates for President and Vice-President, but for electors pledged to those candidates. With all of the media and political focus on the non-existent “national popular vote”, states started pretending that the citizens were voting for candidates, even though those states were using the election to determine a slate of presidential electors. Thus promoting the lie by committing fraud (bait and switch), on their citizens. I believe the lie not only exists, but continues to grow for one central reason: Our general ignorance of the Constitution of the United States and the constitutional role of the presidency. Article II, Section 1, Clause 2 clearly states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

U.S. Constitution, Article II, Section 1, Clause 2

It’s the states that appoint electors and it’s these electors who will eventually elect the President and Vice-President, not the people. While the process was established in Article II, Section 1, it was modified with the Twelfth Amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

U.S. Constitution, Amendment XII

In fact, the idea that people would vote for President and Vice-President did not even exist in the Constitution until January 1964 with the ratification of the Twenty-Fourth Amendment.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

U.S. Constitution, Amendment XXIV (emphasis added)

Yet do just a quick web search and you’ll find dozens of articles talking about the popular vote for President going all the way back to the 1860 election. With Maine’s recent decision to join in the lie, it once again grows stronger.

Maine Joins the National Popular Vote Compact

The Maine legislature passed LD 1578, sending it to the governor for her signature. By neither signing, nor returning the bill for ten days, under the Maine Constitution, the bill becomes law.

If the bill or resolution shall not be returned by the Governor within 10 days (Sundays excepted) after it shall have been presented to the Governor, it shall have the same force and effect as if the Governor had signed it unless the Legislature by their adjournment prevent its return,

Maine Constitution, Article VI, Part Third, Section 2

Because Maine uses ranked-choice voting, this makes the process of appointing their electors rather convoluted.

In a presidential election determined by ranked-choice voting when the National Popular Vote for President Act governs the appointment of presidential electors, the following procedures are used to determine the presidential vote count, except that, notwithstanding subsection 3, a statewide tie between the candidates in the final round may not be resolved and the provisions of subsection 4 regarding the modification of the ballot and count are permitted.

Maine LD 1578

Until the states illegally claim that the National Popular Vote Compact is in force, Maine will continue to appoint their electors with the ranked-choice system they have in place. (Since the NPV Compact does not have the consent of Congress, the states are not allowed to join the compact. And I’m pretty sure it is illegal for the states to follow an agreement they have not legally joined.) However, once Maine claims the National Popular Vote does govern their elections, they still go through the ranked-choice voting process. Why? After all, since the citizens of Maine are no longer choosing their presidential electors, why go through all the time, effort, and confusion of ranked-choice voting for presidential electors when it will not impact the outcome of the election? According to §803 of LD 1578,

As soon as possible after the canvass of the presidential count under section 723-A, subsection 7 is determined, the Governor shall send a certificate of determination containing the names of the electors and the statewide number of votes for each presidential slate that received votes in the final round to the Archivist of the United States under state seal. This final round vote is deemed to be the determination of the vote in the State for the purposes of section 1304.

Maine LD 1578

So the governor is going to send the certificate of appointment electors to the Archivist of the United States, as required by another unconstitutional law, 3 USC §5

(1) Certification.-Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day.

3 USC §5 (a)(1)

However, when those electors vote, they are not doing so based on the decision of the citizens of Maine, rather they would be required by law to vote based on the winner of the fictitious national popular vote.

Notwithstanding subsection 2, when the National Popular Vote for President Act governs the appointment of presidential electors, the presidential electors shall cast their ballots for the presidential slate designated as the national popular vote winner pursuant to section 1304.

Maine LD 1578

In other words, you can easily have a republican slate of electors being forced to vote for a democratic candidate, or visa-versa. Remember, the Governor has already sent to the Archivist of the United States a certificate listing not only the slate of electors, but the number of votes for each Presidential slate. This means Maine’s fraud will be a matter of public record.

Imagine you are one of those electors who were chosen by the people to represent one candidate, but are compelled by law to vote for someone else. What if you are a citizen of Maine, having gone through the process of ranked-choice voting, only to have your vote ignored because your state lied to you about the national popular vote and decided to place the wishes of the rest of the country above those of their citizens, all in pursuit of a lie. Would that not be a fraudulent election?

Conclusion

This lie of a national popular vote has taken its latest victims, the citizens of Maine. Your legislature decided to subvert the expressed will of their citizens for the collective will of that nation, and your governor did nothing to stop it. Maine is a beautiful and unique state that I’ve had the pleasure of visiting several times. Maybe the people of Maine want to give up their uniqueness, their independence, and simply be joined to the collective. If so, that would be a sad state of affairs indeed. The decision of Maine, and of the 16 other states that have joined this illegal compact, shows not only the utter failure of our education system to teach the Constitution and basic civics, but the abandonment of our Constitutional Republic. It’s more than just the citizens choosing the President, rather than the states. This move toward a national popular vote is another step in turning the President into a king. After all, when the President is a chief executive, serving the states as parties to the compact that is the United States Constitution, his role is limited, defined, and controlled by the states. By placing the choice of President in the hands of the people, the states would longer have any say in the role of the President. Rather than the administrator envisioned by the Framers and enshrined in the Constitution, we will have created a man of the people, doing what he thinks the people want, without limitation or restriction. But the Presidency is not a position of the people, rather it is effectively held by a political party and their policies. As George Washington warned us:

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

George Washington’s Farewell Address 1796

Thank you Maine, for not only selling your citizens’ rights for a political bowl of pottage, but for helping to sell the entire republic into the servitude of collectivism, socialism, and slavery. I hope you can live with the consequences of your decision. Sadly, I believe the rest of the nation will not only have to live with those consequences, but many may need to die to return us to the land of the free.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 27, 2024

• FISA Section 702 has been used repeatedly by the FBI to illegally spy on Americans.
• There are those who claim requiring a warrant to search the Section 702 database is unreasonable.
• Will the American people give up their rights for the promise of safety?

A policy statement released by the Executive Office of the administration’s Office of Management and Budget, effectively made the very bold statement that the Constitution of the United States was a threat to national security. Does this not remind you of the saying from Benjamin Franklin?

“They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

Benjamin Franklin

Are the American people willing to give up their right to be free from unreasonable searches for the promise of national security?

On April 12, 2024, Jordain Carney posted on X what she claims is a memo from the Biden Administration regarding an amendment to HR 7888, a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA). The title of the memo is “THE BIGGS AMENDMENT IS A THREAT TO NATIONAL SECURITY”. I say she “claims to” because she provided no link to the original document and I have not been able to find a copy of the document she posted anywhere else. I did, however, find a policy statement from the administration’s Office of Management and Budget that, while not as explicit in its claims as the memo Ms. Carney posted, essentially says the same thing.

Spying on Americans

There have been numerous examples of the Federal Bureau of Investigations misusing the data collected under FISA Section 702 and stored on its database. The FBI lied to the FISA court to authorize surveillance on a Presidential candidate and his staff, and then again to continue the surveillance after Donal Trump had been elected President. The FISA Court identified more than 278,000 times the FBI violated their own standards to use Section 702 to spy on Americans, including those suspects in the Jan. 6, 2021 breach of the capital, Black Lives Matters, and even political campaign donors. This has led to numerous calls to either eliminate Section 702 or modify it in order to protect the rights of the American people. During the debate of HR 7888, the Reforming Intelligence and Securing America Act, an amendment was offered by Rep. Andy Biggs which stated:

An amendment numbered 1 printed in House Report 118-456 to prohibit warrantless searches of U.S. person communications in the FISA 702 database, with exceptions for imminent threats to life or bodily harm, consent searches, or known cybersecurity threat signatures

H.Amdt.876 — 118th Congress (2023-2024)

This led to the OMB policy statement of April 11, 2024, which included the statement:

For these same reasons, the Administration strongly opposes the amendment proposed by Rep. Biggs to H.R. 7888 that would rebuild a wall around, and thus block our access to, already lawfully collected information in the possession of the U.S. Government.

STATEMENT OF ADMINISTRATION POLICY H.R. 7888 –Reforming Intelligence and Securing America Act

Interesting. The administration doesn’t claim Mr. Biggs’ amendment would create a new wall around the 702 database, but rebuild one that previously existed.

The Whitehouse Position on Section 702

The Whitehouse has expressed unqualified support for the renewal of FISA Section 702.

The Administration strongly supports H.R. 7888, a bipartisan bill to reauthorize an essential intelligence authority, Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), and other FISA provisions before they would expire on April 19, 2024.

STATEMENT OF ADMINISTRATION POLICY H.R. 7888 –Reforming Intelligence and Securing America Act

If it has been shown that the FBI has been abusing their access to the Section 702 database, why does this administration want to retain such access?

Expiration of Section 702 authorities would deprive us of insight into precisely the threats Americans expect their government to identify and counter: terrorist threats to the Homeland, fentanyl supply chains bringing deadly drugs into American communities, hostile governments’ recruitment of spies in our midst, PRC transnational repression, penetrations of our critical infrastructure, adversaries’ attempts to illicitly acquire sensitive dual-use and military commodities and technology, ransomware attacks against major American companies and nonprofits, Russian war crimes, and many more.

STATEMENT OF ADMINISTRATION POLICY H.R. 7888 –Reforming Intelligence and Securing America Act

The Administration lists a number of threats they claim from which the American people expect to be protected. That’s fine, but what about the abusive uses of this data?

To protect the American people, we need to maintain this vital collection authority while strengthening its protective guardrails with the most robust set of reforms ever included in legislation to reauthorize Section 702, and H.R. 7888 does that.

STATEMENT OF ADMINISTRATION POLICY H.R. 7888 –Reforming Intelligence and Securing America Act

I’m not sure if the protections in HR 7888 are the most robust ever put in place for a reauthorization of Section 702, but I do know they are, at best, as thin as tissue paper. For example, if someone in the FBI wishes to query the Section 702 database for data on an American citizen, the requirements would be:

Federal Bureau of Investigation personnel must obtain prior approval from a Federal Bureau of Investigation supervisor (or employee of equivalent or greater rank) or attorney who is authorized to access unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) for any query of such unminimized contents or noncontents made using a United States person query term.

HR 7888 – Reforming Intelligence and Securing America Act

So FBI personnel merely needs the OK from a supervisor or higher to access this data. That’s the “unminimized” data. No probable cause, no proof of relevancy to an ongoing and approved investigation. Just a request and approval from an FBI supervisor or an attorney with access to the unminimized (unredacted) data. Isn’t this a case of the “fox guarding the hen house”? Isn’t this what so many people have been complaining about? But wait, there’s more:

A United States person query to be conducted by the Federal Bureau of Investigation of unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) using a United States person query term may be conducted without obtaining prior approval as specified in clause (i) only if the person conducting the United States person query has a reasonable belief that conducting the query could assist in mitigating or eliminating a threat to life or serious bodily harm.”.

HR 7888 – Reforming Intelligence and Securing America Act

So, as long as the FBI actor has a “reasonable” belief that someone could be killed or injured, even the tissue paper thin protections go out the window? Notice, there is no timeframe for the threat to life or serious bodily harm. The investigation could be looking into a possible attack months, even years in the future, but they do not require even the most minimal of review by a supervisor? This is, to the Biden Administration, sufficient safeguards to protect the American people’s rights from the administration’s abuses?

What About the Constitution?

It seems that those in the Biden Administration, not to mention many in the Republican Caucus in the House of Representatives, have forgotten they have sworn or affirmed to support the Constitution, which includes the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

U.S. Constitution – Amendment IV

Much of what has been collected in Section 702’s database are emails and other digital communications, the modern day equivalent of a person’s papers and effects. While the U.S. Constitution has no legal authority in foreign nations, it most certainly does within the borders United States and when the United States is dealing with its citizens and residents. Since the Constitution of the United States is the supreme law of the land (Article VI, Clause 2), that means for a search of the digital papers and effects of any American to be legal, there must be a reason. And to provide proof of that reasonableness, the government must acquire a warrant or show an exigent (urgent) circumstance exists. Which sounds an awful lot like what would be required by Mr. Biggs’ amendment.

to prohibit warrantless searches of U.S. person communications in the FISA 702 database, with exceptions for imminent threats to life or bodily harm, consent searches, or known cybersecurity threat signatures.

H.Amdt.876 — 118th Congress (2023-2024)

However, it appears the Biden Administration, like many of its predecessors, doesn’t like the idea of their illegal powers being challenged.

For these same reasons, the Administration strongly opposes the amendment proposed by Rep. Biggs to H.R. 7888 that would rebuild a wall around, and thus block our access to, already lawfully collected information in the possession of the U.S. Government. The amendment would prohibit U.S. officials from reviewing critical information that the Intelligence Community has already lawfully collected, with exceptions that are exceedingly narrow and unworkable in practice. Our intelligence, defense, and public safety communities are united: the extensive harms of this proposal simply cannot be mitigated. Therefore, the Administration strongly opposes the amendment.

STATEMENT OF ADMINISTRATION POLICY H.R. 7888 –Reforming Intelligence and Securing America Act

Yes, the amendment would prohibit the unlawful review of what is, in some cases, lawfully collected data. It would require the Intelligence Community to follow the law, including the Constitution, that they swore or affirmed to follow. The restrictions are narrow for two very important reasons. First, so they would be pursuant to the Constitution of the United States. And second, to prevent the types of criminal abuses we have already seen those in the FBI are more than willing to commit. The administration seems concerned about the “extensive harms” the Biggs Amendment would have on their ability to illegally spy on the American people, while at the same time showing no concern of the extensive crimes they have committed against them.

THE BIGGS AMENDMENT IS A THREAT TO NATIONAL SECURITY Memo

I place limited confidence in the memo Ms. Carney posted, simply because there is no evidence that it is actually a Whitehouse memo. With that caveat, and giving Ms. Carney the benefit of the doubt, there are details in this memo that would be of great importance if it’s real.

According to the memo Ms. Carney published, the FBI claims to have thwarted three (3) attacks based on data they found by searching the Section 702 database. Of course, they provide no details to verify their claims. While that makes sense from an operational security standpoint, with all of their illegal activity and proven targeting of political opponents, does anyone trust the FBI’s claims anymore?

In this memo, the Biden Administration admits that their searches of the Section 702 database violate the Fourth Amendment.

The “warrant” exception allows a query if, beforehand, the executive branch has obtained a court order based on probable cause. But the executive branch almost never can meet that standard at the earliest stages of an investigation when queries are most critical.

THE BIGGS AMENDMENT IS A THREAT TO NATIONAL SECURITY

The Biden Administration admits that it does not have the probable cause necessary to obtain a warrant when they search the database. That is not only the definition of an unreasonable search, but a deprivation of due process, thereby violating the Fifth Amendment as well. The Biden Administration has turned Section 702 into a “general warrant” like those used during the colonial period to investigate the person in search of a crime, and effectively neutering the Fourth Amendment.

Conclusion

The FBI has already committed crimes in their abuse of the Section 702 database. They have searched the database without a warrant, thus depriving their victims of their security against unreasonable searches. Although not as straightforward, I claim they also violated the Fourth Amendment when they seized copies of the digital versions of papers and effects of U.S. citizens and residents to store in such a database. (That is why I propose a Constitutional amendment to specifically expand the Fourth Amendment for the digital age by including digital documents, communications, and data about the person.) Yet to date, I am not aware of a single FBI employee who has been charged with the crimes that have been committed. Even those who lied under oath when they knowingly provided false data in their affidavits to obtain therefore invalid warrants to spy on the President of the United States and members of his campaign and cabinet have not been charged. And yet the sitting President wants us to trust that FBI supervisors and attorneys with access to the database will follow the law this time?

And here we have the Biden Administration, telling us we need to give up our essential liberty, our rights to due process, and to be secure against unreasonable searches and seizures, all with the promise of protecting our national security. Are you willing to give up your essential liberties for what has shown to be the false promise of temporary safety?

It seems to me there is a much greater threat to national security than the FBI losing its unrestricted and illegal access to their precious Section 702 database: That would be allowing them to continue to criminally spy on the American people.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 22, 2024

• When does government encouragement become coercion?
• Do government actors have a legal responsibility to manage a business’s “repetitional risk”?
• Can government uses its power to encourage others not to do business with you?

If there’s a boogie man in the anti-gun community, it’s probably the National Rifle Association. Accused of complicity in almost every gun crime from gang violence to mass murder, the NRA has become the lightning rod for the vitriol of those whose fear of firearms has grown to an irrational state. What happens though, when government actors advice others about the dangers of doing business with such a company? Is it merely warning of the dangers of sleeping with dogs, or an attempt to use their power to intimidate others into abandoning those they otherwise would do business with? The case of NRA v Vullo is just such a case.

Background

When does advice become coercion? That appears to be at the heart of the case NRA v. Vullo. The NRA claimed that after the April 2018 shooting in Parkland Florida, Maria T. Vullo, then Superintendent of the New York State Department of Financial Services (DFS), with the assistance of then Governor Andrew Cuomo, used her position to coerce financial companies to stop doing business with the NRA. In turn, the NRA sued Governor Cuomo and Ms. Vullo in the District Court for the Northern District of New York, alleging, among other things, that the actions of Governor Cuomo and Ms. Vullo violated their rights protected under the First Amendment. Ms. Vullo claimed qualified immunity against such charges. The District Court dismissed all charges except the First Amendment claims against Ms. Vullo, who appealed to the Second Circuit to dismiss these charges. The Second Circuit reversed the District Court’s decision, which led the NRA to appeal the case to the Supreme Court.

Oral Arguments for the Petitioner

The Supreme Court heard Oral Arguments on March 18, 2024. We start with the arguments for the petitioner, the NRA.

Government officials are free to urge people not to support political groups they oppose. What they cannot do is use their regulatory might to add “or else” to that request.

Respondent Vullo did just that. Not content to rely on the force of her ideas, she abused the coercive power of her office. In February 2018, she told Lloyd’s, the insurance underwriter, that she’d go easy on its unrelated insurance violations if it aided her campaign to weaken the NRA by halting all business with the group. Lloyd’s agreed.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

When does urging someone become coercion? As Mr. Cole, attorney for the NRA, mentioned, when the request comes with an “or else”. For example, it was one thing for Ms. Vullo to suggest that Lloyd’s might want to stop doing business with the NRA, but the promise to go easy if they comply is also a threat to go hard against them if they don’t. This is not the only claim that the NRA made.

Six weeks later, she issued guidance letters and a press release directing the thousands of banks and insurance companies that she directly oversees to cut off their ties with the NRA not because of any alleged illegality but because they promote guns.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

At one point Mr. Katyal, attorney for Ms. Vullo, suggested that these guidance letters were nothing special since the NRA had admitted to selling insurance that violated state law. However, Ms. Vullo did not issue guidance letters only to insurance companies, but to banks and other financial institutions as well. If these letters were to punish the NRA for their insurance program, why encourage banks to stop doing business with them? While these guidance letters do not specifically say “do this or else”, remember DFS does regulate them. Just as Ms. Vullo could make life easy or hard for Lloyds, she could for any company regulated by her agency.

Ms. Vullo was not working on this alone.

In the accompanying press release, Vullo’s boss and co-defendant, Governor Andrew Cuomo, said he directed Vullo to issue the guidance because doing business with the NRA “sends the wrong message.” Shortly thereafter, Vullo extracted legally binding consent orders from the NRA’s three principal insurance providers, barring them from ever providing affinity insurance to the group ever again, no matter how lawfully they do so.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

Apparently, Ms. Vullo’s “warnings” were effective.

These actions worked as multiple financial institutions refused to do business with the NRA, citing Vullo’s threats. This was not about enforcing insurance law or mere government speech. It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

Sounds pretty bad for Ms. Vullo. Then again, we haven’t heard the other side of the case yet. Before we look at the respondents arguments, let’s look at some of the questions the judges had for Mr. Cole.

The NRA is claiming that their freedom of speech is being violated. Justice Thomas asked about that.

JUSTICE THOMAS: Mr. Cole, what is the speech here, protected speech, that you allege has been suppressed?

1. COLE: Promoting guns, advocating for gun rights, sending the wrong message. It is — it is that — it was — it’s precisely the speech of the NRA which caused Vullo and Cuomo to decide to target their — their partners and seek to coerce them into boycotting the NRA. So they are seeking to penalize the NRA because of its speech advocating for gun rights.

JUSTICE THOMAS: So your argument is that the sanctions on a third party suppress the speech of NRA?

1. COLE: Yeah, it doesn’t — Your Honor, it doesn’t — the Court’s First Amendment jurisprudence does not require proof of suppression. It requires proof of burden. If Vullo had imposed a $1 fine on the NRA for promoting guns, it would be unquestionably unconstitutional even though it wouldn’t actually suppress their speech.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

That’s an interesting approach. Do the actions of Ms. Vullo suppress speech, burden speech, or abridge the right of free speech? More on that, and the applicability of the First Amendment later.

Justice Jackson brought her understanding of the issue to light in one of her questions.

JUSTICE JACKSON: I mean, that’s — so — so that’s why we have to be really careful about what you’re alleging is the First Amendment problem because the government can regulate conduct, correct?

1. COLE: I agree. And if this was a case in which the government had said, you know, the NRA is violating the law left and right and we have to respond to that and here are the legal obligations, that would be one thing.

That is not what they said. They said we want to shut the NRA down, we want to put the gun lobby out of business. Why — the title of the guidance letters that she issues are Guidance Regarding the NRA and Other Gun Promotion Organizations. The whole guidance is saying, I don’t like the fact that people use guns. I don’t like the fact that people advocate for the use of guns. We need to stop this. We need to stop this now.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

So this doesn’t appear to be a case of punishing the NRA for their illegal insurance program, but an attack on any and all gun promotion organizations. Justice Jackson brought up another question related to the freedom of speech issue.

JUSTICE JACKSON: So Justice Kavanaugh picked up on what I think might be a critical distinction, and I’m just trying to understand it. So he said here we have a situation in which the government is not acting on a company that is itself in the business of speech, which is true, unlike Bantam Books, where it was.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

Mr. Cole based his argument primarily on the case Bantam Books, which is why Justice Jackson brought it up. Do advocacy companies still have free speech rights? From her comparison to the Bantam Books case, this seemed to confuse Justice Jackson. After all, Bantam Books makes books, which to the twisted understanding of the court, is speech rather than press. The NRA’s business is advocacy. What is advocacy? The support of a policy or cause. How does one advocate for said policy or cause without expressing such support either by voice, print, or digital publication?

Justice Kagan explored the question of “Reputational Risk:.

JUSTICE KAGAN: But that idea of reputational risk, Mr. Cole, that is a real idea, right?

1. COLE: Yeah.

JUSTICE KAGAN: It wasn’t invented for the NRA. There is a view that bank regulators have that companies are supposed to look at their reputational risks.

1. COLE: Right, right.

JUSTICE KAGAN: And so how do we know — I mean, I take — there’s obviously a lot about guns in that letter. But it might be that gun advocacy groups, gun companies do impose reputational risks of the kind that bank regulators are concerned about. So how — where do you — how do you — how do we know?

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

This raised an immediate question for me. Where does any government get the authority to evaluate the risk to the reputation of an institution? Should a company be concerned about their reputation? I would think so, but on many more levels that what I’ve seen regulators consider. For example, Justice Kagan seems concerned that guns impose an unfavorable reputational risk to the company. On the other hand I consider businesses that seek to infringe on my right to keep and bear arms to be not only an unfavorable reputation, but cause to avoid doing business with them.

Oral Arguments for the Respondent

Let’s go on to the oral arguments presented by Neal K. Katyal for Ms. Vullo.

The key fact in this case is the conceded illegal conduct. As Justice Sotomayor said, the three insurers and the NRA broke the law. They were selling intentional criminal act insurance, and all of the products they offered were unlawful because the NRA refused to get a license. That’s why Bantam Books is miles away from this case, and it’s why the court below found qualified immunity protects Vullo.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

The foundation of Ms. Vullo’s defense appears to be that NRA broke the law, so pretty much any punishment is acceptable.

Second, the fact NRA was doing all of these affinity products without a license. Now, just without a license alone, DFS routinely imposes massive sanctions, including lifetime bans.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

It didn’t sound like Justice Alito agreed with Mr. Katyal’s view of the situation.

JUSTICE ALITO: — Mr. Katyal, you’re shifting the burden to them. This is a First Amendment case. They — all they need to do is to show that the desire to suppress speech was a motivating factor. They don’t have to prove that the — the regulatory action would have been taken even if Ms. Vullo didn’t have this motivation.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

Mr Cole, in his rebuttal also pointed out a problem with Mr. Katyal’s focus on the NRA’s insurance program, known as Carry Guard.

Carry Guard, Carry Guard is a red herring here. The Carry Guard program was suspended by Locktons and the NRA in November 2017 Everything else — everything that we’re talking about here happened after November 2017. Her meeting with Lloyd’s, Lloyd’s did not underwrite Carry Guards. And her meeting with Lloyd’s says cut your ties with gun groups, especially the NRA, because I’m trying to weaken them. Gun groups don’t have Carry Guard. Only the NRA did. It wasn’t even operative at that point.

The guidance letters say nothing about Carry Guard. This is not a guidance letter about insurance infractions. This is a guidance letter about the NRA and other gun promotion organizations.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

Furthermore, the guidance letters issued were not targeted solely at the NRA, but as the title points out, were “Guidance Regarding the NRA and Other Gun Promotion Organizations”. If this were a question of punishing the NRA for their actions, why involve other gun promotion organizations?

During his arguments, Mr. Katyal made a point that caught my interest.

And that’s why, if you let this complaint go forward, you will be then saying to government regulators everywhere that you have to be careful about the speech you say. So, for example, last week, some of you heard the President say, you know, we beat the NRA, we’re going to beat the NRA again.

You heard my — in the first argument a discussion about TikTok and — and, you know, a government — a hypothetical in which the government attacks TikTok and criticizes it. The — all of those things — those statements now will be used as — in examples in affirmative litigation to — to issue strike suits to stop enforcement actions by the FTC, by the Justice Department, by states and the like.

And, Justice Kavanaugh, I am troubled by the fact the Solicitor General isn’t embracing that, but I do think it’s important to point out many states are.

National Rifle Association Of America v Maria T. Vullo – Oral Arguments

Not only does it appear that Mr. Katyal is concerned that by punishing government actors who target individuals, groups, or ideas would actually lead to more complaints when they do so, but he’s concerned that the Solicitor General’s office is not concerned that they may be held accountable for their actions. That sounds an awful lot like his position is we shouldn’t punish government actors for targeting political opponents because people will sue.

Conclusion

There are several things in this case that I have problems with. First of all is the fact that at no time during oral arguments did anyone actually quote the Constitution of the United States. Perhaps if they did, someone would have noticed that this cannot be a violation of the First Amendment since Congress had nothing to do with it.

Congress shall make no law … abridging the freedom of speech, or of the press;

U.S. Constitution, Amendment I

That’s not to say this isn’t a free speech case, it’s just not a First Amendment case. Freedom of Speech is protected by Article I, Section 8 of the Constitution of the State of New York.

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

New York Constitution, Article I §8

There are several aspects of the Fourteenth Amendment I can see being violated here.

… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

By targeting a specific organization, Ms. Vullo has deprived both the NRA, its members, the insurance companies, and the banks, the liberty to do business not as a punishment for the crimes the NRA committed, but because of the industry they are in. Also, by targeting both the NRA and other members of the gun industry, Ms. Vullo has unequally applied the laws of the State of New York.

How the Supreme Court decides this case should be interesting. While it is extremely difficult to predict how the court will find, I feel fairly confident that no matter what decision the court makes, it will not be based on the Constitution of the United States.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 16, 2024

• Most Americans learned about the Battles of Lexington and Concord from a Henry Wadsworth Longfellow. But is that history or propaganda?
• Did you realize that our war for independence was initiated in response to gun control?
• Will the American people learn the lessons of these battles before we have another shot heard around the world.

Listen, my children, and you shall hear
Of the midnight ride of Paul Revere,

Paul Revere’s Ride by Henry Wadsworth Longfellow

Most of us who grew up here in America learned about the battles of Lexington and Concorde from this Longfellow poem. Who does not remember, “One if by land, and two if by sea”? Or Paul Revere’s cries of “The British are coming! The British are coming!”?

Most of the stories we have heard are not true. Whether it was poetic license or outright propaganda has been lost to history. However, the story behind those battles was not only well worth the telling, but of great importance to anyone today who still claims the title of American.

Poems, songs, and stories are all ways to remember history. While some of these memory tools are more historically accurate than others, they all have a way of getting into your mind. The story of the battles of Lexington and Concord are not only far greater than the poem suggests, but are crucial to remember if we are to remain free. Since this week will be the 249th anniversary of these famous battles, I think it proper to spend some time remembering.

Before the Battle

The Battles of Lexington and Concord did not happen out of nowhere. Starting around 1764, the British Parliament enacted numerous taxes upon the colonists, ostensibly to recoup the cost of the French and Indian war. The Sugar Act, Stamp Act, and Townshend Acts (a series of taxes on goods imported into the colonies), were understandably not received well by the colonists. The cry of “no taxation without representation” led to the Boston Tea Party. Shortly thereafter, the British Parliament declares Massachusetts to be in open rebellion.

Starting in 1774, the British Parliament began enacting what became known as The Intolerable Acts. Since Boston seemed the epicenter of much of the resistance, King George III shutdown Boston harbor until restitution had been made for the Boston Tea Party. Then King George abolished the colonies charter of 1691, replacing the elected local council with an appointed one, increasing the military powers of the newly appointed royal governor of Massachusetts, Thomas Gage, and forbidding town meetings without approval. Next King George allowed British officials charged with capital offenses to go to England or another colony for trial. The last of these Intolerable Acts allowed the housing of British troops in the dwellings of colonists without their consent. This led to even more open hostility from the colonists.

Acting upon orders from Lord Dartmouth to confiscate the colonists’ weapons, Thomas Gage ordered troops to seize their powder house in Concord. On April 18, 1775, Joseph Warren, a physician and member of the Sons of Liberty, learned about the orders and dispatched Paul Revere and William Dawes to alert the residents. On their way to Concord, the troops would pass through Lexington.

The Battles of Lexington and Concord

As word spread through the colony, 77 members of the Massachusetts Militia, commanded by Captain John Parker, gathered on Lexington Green. Around dawn these men saw 700 British troops marching toward them. The British Major called for the militiamen to lay down their arms. The orders from Captain Parker to the militia were:

“Stand your ground; don’t fire unless fired upon, but if they mean to have war, let it begin here.”

Lexington – Britannica

We do not know who fired first, but several volleys were fired. When the smoke cleared, eight militiamen were dead, 9 were wounded, along with one Redcoat. The British troops continued to Concord, even though their searches proved futile, as most of the arms had already been relocated for safe keeping. By this time approximately 2,000 militiamen had arrived in the area. After a brief engagement at Concord’s North Bridge, things settled down. After four hours, the British troops began their march back to Boston, some 18 miles away. The militiamen were ready, harassing the British column all the way back to Boston.

Why Should We Remember This Battle?

Most Americans tend to remember the Battle of Lexington, along with its sister battle for Concord. There is much we can learn from this first true battle of the Revolutionary War, even though it was a loss.

What I believe most important is why the British were marching on Concord in the first place. The colonists’ own government had ordered the confiscation of their arms. The British government was not concerned with their treatment of their fellow citizens in the colonies, they were concerned those colonists might seriously stand up against them. Sure, small acts of defiance had happened, but what if those colonists actually tried to defend themselves against the violations of their rights as British citizens? This could not be tolerated. Patrick Henry would later expound during the Virginia Ratification Debate:

“Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense?”

Patrick Henry – 3 Elliot Debates 168-169

Similarly today, we see governments at all levels infringing on our right to keep and bear arms. Look at the arguments they use.

• “Hell, yes, we’re going to take your AR-15, your AK-47.” — Beto O’Rourke
• “I don’t believe people should be able to own guns.” — Barak Obama
• “If I could have gotten…an outright ban – ‘ and Mrs. America turn in your guns’ – I would have!” — Senator Diane Feinstein
• “We’re bending the law as far as we can to ban an entirely new class of guns.” — Rahm Emanuel
• “If the personal freedoms guaranteed by the Constitution inhibit the government’s ability to govern the people, we should look to limit those guarantees.” — President Bill Clinton
• “Banning guns addresses a fundamental right of all Americans to feel safe.” — Senator Dianne Feinstein

We hear claims that citizens should not be allowed to own weapons of war, yet this battle is a perfect example of why we need them. As the Second Amendment states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution, Second Amendment

First, whether that government be foreign or domestic, the people need arms to keep themselves free. The militia who defended their rights in Lexington and Concord were not part of a national militia, just a group of local men standing up against the tyrannies of their own government. This’s why the Constitution protects the right of every individual to keep and bear arms. If we forget that the war for independence started because of gun control, then we may be doomed to repeat such a war.

Second, for all the talk of the power of the federal government, the Battles of Lexington and Concord shows that an outnumbered force can defend themselves against a superior one. The 77 militiamen at Lexington slowed the British march, not only giving those in Concord time to hide their arms, but giving neighboring militias time to assemble. What could a small group of Americans today do to slow the advance of tyranny? Look at what is happening at the border in Texas. Not only has a small group in the state militia stood up to the infringements of the federal government, but they have given time for other states to rally to their cause.

Lastly, we see that there are things worth fighting for, even in the face of incredible odds. Seventy-Seven brave men stood before 700. When asked to stand their ground, they did. I do not believe they did so for flag and country, because they were fighting against those things. I believe they were standing up for rights and family. The Declaration of Independence had not even been proposed yet, but these men were standing to protect the rights of their neighbors to posses the tools for their defense. I believe they understood that should this most basic and fundamental human right of self-defense against man, beast, or government, be abolished in Concord, Lexington could not be far behind. What would become of their families without such tools of defense? How would their children and grandchildren live in a land where they could not defend themselves against the violation of their rights by their own government?

Conclusion

If the Battles of Lexington and Concord are so important, why do we not celebrate them? With all of the non-sensical special holidays that Congress has created, you would think they’d take just a little bit of time to remember the beginning of the War for Independence. It seems, just as the 18th century British government wasn’t all that interested in protecting their citizens’ rights, our 21st century government doesn’t like reminding the American people that they can stand against them.

There’s another battle that few Americans seem to know about. A battle where Americans stood up against corrupt government with force of arms in order to protect their rights and those of their neighbors. I wrote about it in my article The Battle of Athens, TN. Perhaps we should remember this day as well.

What would happen if a handful of Americans were to stand up for their rights and those of their neighbors? If just a handful of patriots not only read the Constitution, but learned how to use it to defend their rights? Would men and women recognize the tyranny of attempting to disarm the American people, and the power they had to oppose these unconstitutional acts? Perhaps, if we had a few Americans with the bravery of those in the Massachusetts Militia, the wisdom of the veterans in Athens, TN, and the conviction to do what is right, no matter the cost, we would not need another shot heard around the world. Perhaps all we need is a state willing to stand up and tell the federal government not to buy us the time to secure both our weapons and our future.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April, 9, 2024

• TikTok is spyware, but it’s not alone.
• Congress has come up with Protecting Americans from Foreign Adversary Controlled Applications Act, but does it do more harm than good?
• What if the American people simply stopped their children from using TikTok?

I have a lot of issues with TikTok, and it’s one social media platform I refuse to use. However, when I look at how Congress plans to deal with this platform, I see even more problems. I’ve also read and listened to several commentators about the bill, and find even more problems with their suggestions. So what do We the People do when our representatives in Congress have a personal vendetta against a foreign company?

Like most social media and mobile applications, TikTok is a data vacuum. Yes, though TikTok is one of the worst abusers of its user’s trust, it’s by no means alone. So why has this particular social media company drawn such bipartisan ire from the members of Congress?

TikTok

I freely admit I have never used TikTok, and I have no plans to do so in the future. Why you ask? After all, it could be quite beneficial in getting the message of The Constitution Study out, especially among young people. The answer is quite simple: Treason. I’m not saying anyone who uses TikTok is committing treason, but it seems to be pretty close, especially for those who support its infrastructure here in the United States.

TikTok has been shown to be spyware, but then again, that’s true for just about every app on your phone and every website you visit. There have been reports of the TikTok app listening on your microphone, watching via your camera, tracking your location, and reading every keystroke you type. That makes TikTok one of the worst spyware apps on the market, right up there with Google’s Android Operating System, Chrome browser, Gmail, Google Docs, and Google Maps. (By the way, I do all I can to avoid these applications as well.) So what makes TikTok different? TikTok is owned by ByteDance, which is a Chinese company. By Communist Chinese law, not only is ByteDance required to turn over any information the government asks for, but I believe they are required to propagandize for that government as well. I’m pretty sure that all app companies that operate in China are turning over data as well, but mostly data it collects from the Chinese people. I could be wrong, and if evidence comes to light that apps are sharing my data with governments, foreign or domestic, without my permission, I’ll drop those as well. (I guess that means my phone’s home page is getting pretty bare.) Yes, every app on your phone and every website you visit tries to collect data about you. Yes, many if not most of the companies that develop these apps sell their data to data brokers, who may sell that information to governments foreign and domestic, and that is a problem. There’s more. TikTok manipulates the information they show its audience in the United States to promote their own agenda, but they’re not alone in that either. Today however, we are talking about H.R.7521, commonly known as the TikTok Ban.

Protecting Americans from Foreign Adversary Controlled Applications Act

Formally know as the Protecting Americans from Foreign Adversary Controlled Applications Act, H.R. 7521 claims to protect you from foreign spying and influence. I took a closer look at the legislation, and it seems more like a political stunt than something designed to protect the American people.

Let’s start with the title. It sounds pretty good, doesn’t it? The Protecting Americans from Foreign Adversary Controlled Applications Act. Good, except, this bill does not protect you from foreign adversary controlled applications.

PROHIBITION OF FOREIGN ADVERSARY CONTROLLED APPLICATIONS.—It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following:

(A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

(B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.

1. R. 7521 Protecting Americans from Foreign Adversary Controlled Applications Act

This bill, should it become law, would make it unlawful to host one of these applications on an application marketplace or store, but only within the United States. It does not prohibit anyone from having the application or from using it. I don’t know if the members of Congress realize this, but the Internet is international. So while this bill would make it unlawful for Apple or Google to host TikTok on their U.S. based marketplaces, it does not prevent them from hosting it on their foreign ones. Which I suppose means they could list the app on their stores, but the link to download or update the app would go to a server in a foreign country. The other option would be for users to simply get a VPN that would direct their traffic to a foreign country, then search their app store for TikTok. In either case, people will still have and be able to update the app. Since this law only prohibits hosting the applications, TikTok would simply have to redirect TikTok.com to a server in a foreign country and their website will still work. So this bill would have little impact on a foreign adversary either collecting data on or influencing Americans.

Then there’s the ownership requirement for an app to be controlled by a foreign adversary.

CONTROLLED BY A FOREIGN ADVERSARY.—The term “controlled by a foreign adversary” means, with respect to a covered company or other entity, that such company or other entity is—

(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;

(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or

(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).

1. R. 7521 Protecting Americans from Foreign Adversary Controlled Applications Act

All a person or company would have to do is own less than 20 percent of the app to get around this. But as a stake holder, would they not still have access to all of the data? Could they not influence the development of the algorithms used to influence their audience? After all, the United States doesn’t own Twitter or Facebook, but they’ve been able to influence both companies and impact both elections and the response to COVID.

At that point there’s the question of what is a foreign adversary country?

FOREIGN ADVERSARY COUNTRY.—The term “foreign adversary country” means a country specified in section 4872(d)(2) of title 10, United States Code.

1. R. 7521 Protecting Americans from Foreign Adversary Controlled Applications Act

What countries are specified in 10 USC §4872(d)(2)?

(2) Covered nation.-The term “covered nation” means-

(A) the Democratic People’s Republic of North Korea;

(B) the People’s Republic of China;

(C) the Russian Federation; and

(D) the Islamic Republic of Iran.

10 USC §4872(d)(2)

Then there’s the question of what companies are covered by this bill?

(A) IN GENERAL.—The term “covered company” means an entity that operates, directly or indirectly (including through a parent company, subsidiary, or affiliate), a website, desktop application, mobile application, or augmented or immersive technology application that—

(i) permits a user to create an account or profile to generate, share, and view text, images, videos, real-time communications, or similar content;

(ii) has more than 1,000,000 monthly active users with respect to at least 2 of the 3 months preceding the date on which a relevant determination of the President is made pursuant to paragraph (3)(B);

(iii) enables 1 or more users to generate or distribute content that can be viewed by other users of the website, desktop application, mobile application, or augmented or immersive technology application; and

(iv) enables 1 or more users to view content generated by other users of the website, desktop application, mobile application, or augmented or immersive technology application.

1. R. 7521 Protecting Americans from Foreign Adversary Controlled Applications Act

While The Constitution Study doesn’t have a million monthly active users yet, I would like to one day. Users can create accounts, and one day I would like them to share information with other users. Does that make The Constitution Study a “covered company”? This bill would require us to be 20% owned by a citizen of one of these foreign adversary countries. And we all know that Congress would never slip an amendment into some huge omnibus bill to change those requirements, would they?

While there are plenty of issues with this legislation, we haven’t even covered the question of constitutionality.

Is It Constitutional?

The first question that should be asked about any legislation is, “Is it constitutional?” Congress does have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

Congress can regulate commerce with foreign nations, and TikTok is a commercial app owned by a foreign company. However, Congress goes too far with this bill, making it a Bill of Attainder.

a legislative act which declares a named person guilty of a crime, particularly treason.

Bill of Attainder – The Free Legal Dictionary

How does this rise to a bill of attainder? Because it declares a specific party as guilty without a trial.

(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.—The term “foreign adversary controlled application” means a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate), by—

(A) any of—

(i) ByteDance, Ltd.;

(ii) TikTok;

(iii) a subsidiary of or a successor to an entity identified in clause (i) or (ii) that is controlled by a foreign adversary; or

(iv) an entity owned or controlled, directly or indirectly, by an entity identified in clause (i), (ii), or (iii);

1. R. 7521 Protecting Americans from Foreign Adversary Controlled Applications Act

Now if you’re worried about other apps, well, you have a good reason. You see, in addition to targeting TikTok, there’s another clause that allows the President to decide if a foreign company is a significant threat to national security.

(B) a covered company that—

(i) is controlled by a foreign adversary; and

(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—

(I) a public notice proposing such determination; and

(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture.

1. R. 7521 Protecting Americans from Foreign Adversary Controlled Applications Act

We’ve never seen a President declare someone or some company as a national security threat without probable cause, have we? And since this clause doesn’t require the President to go through due process before depriving a company the ability to be available within the United States, that would make this bill a violation of the Fifth Amendment’s Due Process Clause.

No person … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

Is anyone surprised Congress can pack so many ineffective and unconstitutional acts into such a short piece of legislation?

Conclusion

I understand the desire to “get” TikTok, but we shouldn’t let our emotions lead us into making bad law. And there is a lot of bad in this bill. In addition to all of the problems I’ve already identified, there is a major hole in this legislation. Not only would it not be effective in preventing foreign governments from spying on the American people, it completely ignores the spying that other applications have been doing for decades. With all of the media focus on this bill, does anyone else wonder why all of the other apps vacuuming up and selling our data have been ignored?

I alluded earlier to the idea of treason, which is defined in Article 3, Section 3 of the Constitution.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

U.S. Constitution, Article III, Section 3

If China is an enemy of the United States, and TikTok is not only collecting data for them but spreading propaganda as well, then wouldn’t helping them do so be giving them aid and comfort? I don’t think China is technically an enemy of the United States yet; after all, Congress has only listed them as a foreign adversary. What is the difference between a foreign adversary and an enemy? And if the plan we keep hearing about China has come true, wouldn’t they then be a full-blown enemy?

If Congress were competent, and truly concerned about applications spying on the American people, they would draft legislation that actually protected us. Instead, we see a bipartisan stand to screw up this situation even more. I cannot read minds, but my guess is this political grandstanding is more about votes this November than the title of the bill suggests. How often have I said if you want to know the purpose of a bill, assume it’s the exact opposite of its title.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 5, 2024

• The fundamental basis of our freedoms is the power to choose.
• Independence, liberty, and freedom are all based in people choosing.
• Yet the American people have handed over their power to choose over to others.

The word “choice” has all but been taken over by the pro-abortion crowd, but that is not what I want to discuss here today. Recent history, both public and private, has displayed the fundamental function choice plays in a person’s independence, liberty, and freedom. Yet said history has shown that many of the American people have given up the ability to choose, placing that responsibility on others. By doing so, people have voluntarily abandoned their position as free citizens in order to become enslaved subjects to those who do the choosing for them.

If there is a fundamental core concept behind the idea of America, it is the belief in independence, liberty, and freedom. Think about it: Our nation was formed when we declared independence from Great Britain. Within the Declaration of Independence we find the recognition of the unalienable right to liberty. And the Bill of Rights starts out with protecting our freedoms of religion, speech, and press. These ideas, and the laws that protect them, are the fundamental basis for our nation. Yet there is one key aspect to this triad that we seem to seldom think of, because all three are dependent on the ability to choose.

The Power of Choice

a: to select freely and after consideration

b: to decide on especially by vote

Choose – Merriam-Webster Dictionary Online

When our nation was founded, our ability to select freely how we live our lives and to decide who will represent us, was not only a fundamental part of the character of this nation, it was unique in the world. Throughout our almost 250 year history, this power of choice was not only the envy of many of the world’s population, but drew them to our shores with the hope that their children would be able to choose for themselves. While not always smooth, our ability to choose not only shaped our lives, but the lives of billions across this planet. As often as I hear people complain about their choices being taken away from them, more often than not, it has been We the People who have given up our right to choose rather then others taking it away.

Every choice has consequences. Even choosing not to decide has consequences. In the long run, our choices come down to what consequences we are willing to endure. Take for example, our own war of independence.

Independence

1. A state of being not dependent; complete exemption from control, or the power of others;
2. A state in which a person does not rely on others for subsistence; ability to support one’s self.
3. A state of mind in which a person acts without bias or influence from others; exemption from undue influence; self-direction.

Independence – Webster’s 1828 Dictionary

For a decade, the king and parliament of Great Britain chose to enact laws and taxes upon the colonies, many of which violated the rights of those colonists. During that time, the colonies chose to push back, either by request or by disobeying those laws and edicts. This, of course, let to conflicts between the colonies and Great Britain. On April 19, 1775, the consequences of those decisions blew up.

Picture April 19, 1775, Lexington, Massachusetts. Imagine you are a member of the Massachusetts militia. Having heard the warnings about the British marching for your neighbors in Concorde, to confiscate their ammunition, you responded with your fellow militiamen and gathered on Lexington Green. Shortly after dawn, you see a column of British soldiers marching your way. As their commander orders them to halt, you stand there, nervous but steadfast. This is your land, your home, and you will defend it. The British commander orders you and your fellow militiamen to lay down your arms and go home. You have a choice.

Yes, you had joined the militia, giving your word to follow the orders of your commander, Captain John Parker. The British Army had law enforcement powers, so their commands to disarm and go home had legal authority. You probably didn’t realize it, but what you and your fellow militiamen did in the next few moments would change the world forever. As you stand there, you have a choice. Do you stand with the militia or obey the legal authority? The choice is yours, and you will suffer the consequences.

Your commanding officer makes a choice and issues orders.

Stand your ground.

He chooses to disobey the legal authority, recognizing the violation of the colonist’s rights. He orders his troops to do so as well. They will not lay down their arms. They will not go home.

Don’t fire unless fired upon,

He chose not to escalate the situation. He will not order his men to fire, neither will he expect them to stand defenseless if attacked.

but if they mean to have war, let it begin here.

There’s your choice. Do you stand against the legal authority or obey it? Do you hold your fire, waiting for your opponents to fire first? Should they attack, do you stand and fight or do you flee. Captain Parker made his choice; independence was more important than life and limb. If the British wanted a war, he was willing to give it to them. However, you still have a choice. Obey your commanding officer or the legal authority. What do you do?

History tells us that someone fired. Who was it? We are not sure. The battle that followed effectively started the War for Independence, or as we call it today, the Revolutionary War. In those times it was called the War for Independence, but in many ways it was the war to remain independent. The Massachusetts Militia at Lexington Green had looked at what the legal government was doing, and knew it was wrong. They considered, to whatever extent possible, the consequences of their decision, and chose independence over servitude. To this day, we live with the consequences of those actions for, both good and ill.

Liberty

Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind. The body is at liberty when not confined; the will or mind is at liberty when not checked or controlled. A man enjoys liberty when no physical force operates to restrain his actions or volitions.

Liberty – Webster’s 1828 Dictionary

Liberty, in its most general sense, is the ability to choose without outside influence. This is a state which cannot fully exist in the real world. There will always be people who wish to control you, how you live, what you can and cannot do, and what you will allow to confine you if you do not comply. Either they will be stronger than you, and thereby enforce their will on you, or you will be stronger than them, thereby enforcing your will on them. Which is why, when most people talk about liberty, they are talking about civil liberty.

Natural liberty consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature.

Civil liberty is the liberty of men in a state of society, or natural liberty so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation.

Liberty – Webster’s 1828 Dictionary

Civil liberty is the ability to live your life as you choose, restrained only by the laws of nature, or of civil laws necessary for the safety and interest of society. I like to summarize the laws of nature into one simple statement: We don’t hurt people, and we don’t take their stuff. Civil laws that protect the public as a whole, such as speed limit and traffic light laws, do not infringe on your civil liberty because they are necessary for the safety of society. On the other hand, helmet and seatbelt laws do infringe on your civil liberty, since they are designed to protect the individual not the society as a whole.

Even here, we still have the ability to choose. Many people choose, if not to ignore, at least to “bend” speed limit and traffic light laws. In many cases when they are caught, people recognize their breech of civil law and accept the consequences. Others act as if they have the right to violate these laws, frequently because many have done so without getting caught. I feel little sympathy for these people, since they chose to break the law and are merely suffering the consequences.

Freedom

A state of exemption from the power or control of another; liberty; exemption from slavery, servitude or confinement.

Freedom – Webster’s 1828 Dictionary

As you can see, freedom and liberty are closely related. For our discussion here, I want to focus on the exemption from slavery, servitude, and confinement.

Many think that slaves have no choices. In reality they have very few choices, and the consequences of are extreme. After all, the consequences of failing to escape slavery cannot only be severe, but lethal. Servants, on the other hand, may have a few more choices, but the consequences are generally far less severe. In rare circumstances losing one’s job is likely to lead to the end of their life. Even those in confinement have choices. They can obey the guards or not, or they can try to escape or not. In those circumstances the consequences of their choices have varying punishments.

Giving Up the Right to Choose

In all of these situations, people have choices. The most fundamental of these choices is whether or not to obey. This nation was founded on our ability to choose and the independence to govern ourselves, rather than be governed by others, the liberty to live our lives as we see fit, and without undue external influence. The ability to live as free citizens rather than subjects of government. During my lifetime I have observed a disturbing trend, one that seems to have accelerated exponentially over that past decade or so, that of the American people giving up their right to choose for themselves. Instead, they choose to follow others without consideration.

When did the image of a strong and independent American become something to be vilified? When did we decided that conformity was preferable to uniqueness? When did we decide that the ability to choose for ourselves must be subjugated to the will of others? When did the American people decide to give up being citizens and decide to be subjects?

The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides;

Citizen – Webster’s 1828 Dictionary

American citizens are those who enjoy the freedoms and privileges of this nation. Over the decades Americans have given up many of those freedoms in an attempt to “get along” with others. We gave up our freedom of speech, first to the politically correct, who then took over our governments and Human Resource departments. Then we gave up our privacy to tech giants, who vacuum up our data in exchange for the latest gadget and the claim of making our lives easier. We gave up our freedom of the press to social media, who in turn encouraged us to give up our freedom of thought. Let us not forget that we also gave up our civil liberties to government agencies that do not legally exist. Lastly, it appears we have given up even our right to decide by vote, first by handing over our right to choose to political parties, then by allowing those who corrupt the process to continue without punishment. Just as Esau sold his birthright for a bowl of stew, the American people have sold their birthright as citizens to become subjects of others.

Being under the power and dominion of another;

Subject – Webster’s 1828 Dictionary

Just look at the reaction to the mask and vaccine mandates. Few Americans recognized that these acts were violations of the Constitution and therefore void. Even fewer were prepared to defend their rights in the face of government and corporate actors. Millions of Americans still live under the dominion of illegal government actors, not because of the law, but because of their own subjugation, and their unwillingness to accept the consequences of defending their rights.

Conclusion

I have met hundreds of people who truly believe they have no choice. They complied with the mandates because they didn’t think they had a choice. They follow government edicts about their health, their homes, and even their speech, because they do not think they have a choice. The truth is, they have a choice, but are afraid of the consequences of it. As a society, we have become so risk adverse that we will give up just about anything to be kept safe, and in doing so we become subjects of government. Many will not prepare to defend themselves because we are told that is what law enforcement is for. We won’t prepare for natural disasters because that is what the Federal Emergency Management Agency (FEMA) is for. We won’t investigate the drugs, supplements, and foods we eat, because that is why the Food and Drug Administration was created. Many see these problems, but won’t stand up because they are afraid of being put on some list, or of receiving a knock on the door. We have done what Benjamin Franklin warned us not to do, and we are suffering the consequence:

They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

Benjamin Franklin

Look around you today. Do you have liberty, or do government and societal actors claim the authority to tell you how to live? Do you have security, or does law enforcement simply come to mop up the mess afterward?

Contrary to popular belief, you do have a choice, and it’s a legal one. The Constitution is the proof of the illegality of so much of what the federal and state governments are doing, the infringement on our rights, and the usurpation of our powers. The question is, do you have the fortitude to do what is right in the face of evil, knowing there will be consequences?

Most of us only know the first stanza of our national anthem, the last last two lines of which ask an important question:

Oh, say! does that star-spangled banner yet wave
O’er the land of the free and the home of the brave?

The Star Spangled Banner

Does that banner still wave over the land of the free? Not unless the American people are brave enough to choose rights over false promises of security, to look at the cost of standing up for freedom, and to consider that cost worth the gain. As long as we value our comfort more than our rights, we will continue to be servants of those in government.

When the 56 men in Philadelphia saw independence in their grasp, they were well aware of the costs. They would be labeled traitors and subject to death. Even though we won the war, some of those men died, others suffered horribly in British custody, and other had financial ruin. They knew the likely costs of declaring independence, yet were still willing to pledge…

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Declaration of Independence

Only if the American people recognize that those who work in government serve us, not the other way around, and are willing to pay the price so that the following generations can live free, do I believe we will be brave enough to ensure that the land our children live in will be free.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Angel

March 23, 2024

• A well regulated militia is necessary to a free state. Then why is Congress trying to disarm them?
• Congress wants to make it illegal for your neighborhood watch or church security group to train to defend themselves and others.
• What happens if it becomes illegal for people to assemble to prepare to defend themselves?

The gun grabbers in Congress are at it again. Attempts to disarm the American people have only been moderately successful over the past few years, so a bill was recently introduced in the House of Representatives. Entitled the “Preventing Private Paramilitary Activity Act of 2024”, this bill wants to make it a crime for private citizens to work together to defend their rights. If this bill were to become law some day, even training together could not only get you fined, but placed in jail, possibly for life.

Have these members of Congress forgotten that our war of independence was started by an attempt by the British governor of Massachusetts to disarm the people? That the the battles of Lexington and Concord were fought by private citizens who formed a militia? Or could it be that they just don’t care about our rights and the Constitution, and are just looking for another way to subjugate the American people?

Sometimes I wonder if there are those in Congress actually trying to start a new war of independence? I only ask because it seems there are some in that body who seem dead set on repeating the mistakes the British made back in the 18th century. Take, for example, the battles of Lexington and Concord.

Battle of Lexington

After a decade of tension between the British government and the American Colonies, the Commander-in-Chief of the British forces in North America, Thomas Gage, was given the authority to use force to find and destroy military supplies. On April 18, 1775, General Gage ordered approximately 800 British troops to march to Concord to destroy weapons and ammunition he believed were hidden there. When the patriots in Boston learned of the orders, they dispatched Paul Revere and William Dawes to ride to Concord, warning those they could along the way. By the early hours of April 19th, the local militia, under the command of Captain John Parker, had assembled on Lexington Green. At dawn the British troops, under the command of Lieutenant John Pitcairn, marched into Lexington. Lt. Pitcairn ordered Parker and his men to drop their weapons and disperse. A shot rang out, from which side no one truly knows, but once it did, both sides opened fire. This “shot heard ’round the world” was the beginning of open combat between the British and Americans.

The actions of General Gage and Lt. Pitcairn were not intended to start a war, but they did. The desire of tyrants to disarm their subjects did not start in the American colonies, but the fight against such usurpation is certainly part of our American DNA. Our right to keep and bear arms has been enshrined in the Second Amendment, along with our need for a militia. Or, as these members of Congress wish to call them, “Private Paramilitary Activity”.

Preventing Private Paramilitary Activity Act of 2024

Ever since 1934 and the passing of the National Firearms Act, Congress and the federal government as a whole, has claimed the power to infringe on your right to keep and bear arms because they think they know best. Certain weapons were too dangerous for private use. Certain places were too dangerous for you to defend yourself. And now, with the introduction of the Private Paramilitary Activity Act of 2024, Congress wants to tell you that certain groups are too dangerous to be armed.

(a) Offense.—It shall be unlawful to knowingly, in a circumstance described in subsection (b), while acting as part of or on behalf of a private paramilitary organization and armed with a firearm, explosive or incendiary device, or other dangerous weapon—

“(1) publically patrol, drill, or engage in techniques capable of causing bodily injury or death;

“(2) interfere with, interrupt, or attempt to interfere with or interrupt government operations or a government proceeding;

“(3) interfere with or intimidate another person in that person’s exercise of any right under the Constitution of the United States;

“(4) assume the functions of a law enforcement officer, peace officer, or public official, whether or not acting under color of law, and thereby assert authority or purport to assert authority over another person without the consent of that person; or

“(5) train to engage in any activity described in paragraphs (1) through (4).

Private Paramilitary Activity Act of 2024

That’s quite a laundry list of things Congress wants to prohibit. Let’s start with how Congress wishes to define a “private paramilitary organization”.

The term ‘private paramilitary organization’ means any group of 3 or more persons associating under a command structure for the purpose of functioning in public or training to function in public as a combat, combat support, law enforcement, or security services unit.

Private Paramilitary Activity Act of 2024

Basically, Congress wants to outlaw militias, except for some we’ll talk about later. A militia is defined as:

a: a part of the organized armed forces of a country liable to call only in emergency
b: a body of citizens organized for military service

Militia – Merriam-Webster Online Dictionary

Militias are essential not only to our individual freedom, but the freedom of our states.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution, Amendment II

Without a militia, our states would be defenseless against federal intrusion and overreach. Without the ability for citizens to come together to defend themselves, they would be defenseless against all enemies, foreign and domestic. It’s not just the militia that Congress is trying to control, but our right to peaceably assemble for our own defense.

Look at the things Congress doesn’t want the people to train for: “a combat, combat support, law enforcement, or security services unit.” Do you look at the world around us and wonder if or when society falls apart, will we be forced to defend ourselves? Are you concerned that something like the movie Red Dawn will actually happen here? Or have you watched the riots in Minneapolis-St. Paul, Seattle, New York, Chicago, and other cities, and want to prepare should something like that happen near you? According to Congress, if you get two friends to work together, you could be a private paramilitary organization.

Are you part of church security team, a neighborhood watch, or any other group who prepares should they need to provide for their own security? Then you most definitely part of a private paramilitary organization according to this legislation. Even the act of training for such an eventuality is considered unlawful under this act.

Congress does claim to restrict this act to certain circumstances:

The circumstances described in this subsection are that the conduct described in subsection (a)—

“(1) involves—

“(A) travel across a State line or national border; or

“(B) the use of the channels, facilities, or instrumentalities of interstate or foreign commerce;

“(2) involves a firearm, explosive or incendiary device, or dangerous weapon that has traveled in interstate or foreign commerce;

“(3) involves the use of ammunition or a large capacity ammunition feeding device that has traveled in interstate or foreign commerce;

“(4) obstructs, delays, or affects interstate or foreign commerce; or

“(5) occurs wholly within any commonwealth, territory, or possession of the United States.

Private Paramilitary Activity Act of 2024

Do you want to help out at the southern border? Better not cross state lines to do it. Want to assist during a riot or national disaster? Congress seems to want you to stay home rather than help. And unless you just happen to live near a firearm and ammunition factory, you’re going to have get such tools through interstate or foreign commerce.

Why this focus on interstate or foreign commerce? Because these people in Congress are trying to cloak their tyranny under the Commerce Clause, which delegates to Congress the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

However, this isn’t regulating commerce. It’s regulating people, isolating them, and making it illegal for them work together to even prepare to defend themselves.

Of course, these members of Congress did, sort of, write in some exceptions to their tyranny.

Subsection (a) shall not apply to—

“(1) the armed forces of the United States, the National Guard, the Naval Militia, any regularly organized State militia, or any unorganized or reserve militia called into service by a State or the United States;

“(2) a group of individuals who—

“(A) associate as a military organization solely for purposes of historical reenactment or study; or

“(B) parade in public as part of a bona fide veterans organization with no intent to engage in the activities prohibited by subsection (a);

“(3) students in an educational institution authorized by the Federal Government or a State to teach military science as a prescribed part of the course of instruction, when under the supervision of a military instructor; or

“(4) members of an organization that is authorized under Federal or State law to provide paramilitary, law enforcement, or security services training or to engage in paramilitary activity, law enforcement, or security services when performing the functions authorized by law and, in the case of paramilitary activity and law enforcement functions, when under the direction and control of a governmental authority.

Private Paramilitary Activity Act of 2024

You see, if you are part of a government authorized, and therefore government regulated, “paramilitary organization”, then that’s just fine. Let We the People work together to protect ourselves though, and the tyrants in Congress get very upset.

Now what good would such a law be if there weren’t some penalties applied?

Any person who violates subsection (a) shall be fined under this title, imprisoned for not more than 1 year, or both, except that—

“(1) in the case of a violation that does not result in bodily injury and is committed by a person who has not, prior to the commission of the violation, been convicted of violating a Federal or State law, the person may be sentenced to probation for a term of not more than 1 year;

“(2) in the case of a violation that occurs after a prior conviction under this section has become final, the person shall be fined under this title, imprisoned for not more than 2 years, or both;

“(3) in the case of a violation that results in damage to property, the person shall be fined under this title, imprisoned for not more than 2 years, or both; and

“(4) in the case of a violation that results in—

“(A) bodily injury, the person shall be fined under this title, imprisoned for not more than 5 years, or both; or

“(B) death, the person shall be fined under this title and imprisoned for any term of years or for life.

“(2) PROCEDURES.—Section 413 of the Controlled Substances Act (21 U.S.C. 853), with the exception of subsections (a) and (d), shall apply to the criminal forfeiture of property pursuant to this subsection.

Private Paramilitary Activity Act of 2024

Basically, the penalties start at a fine, without any limitation on how large, and a year in federal prison, for the act of collectively preparing to defend yourself and your neighbors. But wait, there’s more.

“(e) Forfeiture.—

“(1) IN GENERAL.—Any person who violates subsection (a) shall forfeit to the United States any property, personal or real, involved in, used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, the violation, or that constitutes or is derived from proceeds traceable to the violation.

“(2) PROCEDURES.—Section 413 of the Controlled Substances Act (21 U.S.C. 853), with the exception of subsections (a) and (d), shall apply to the criminal forfeiture of property pursuant to this subsection.

Private Paramilitary Activity Act of 2024

That’s right, if you are convicted, the federal government gets your stuff. Depending on what type and how much equipment you and your friends purchased, that could be thousands, possibly millions of dollars.

Conclusion

Should this piece of legislation become law, it would be void because it violates at least three rights protected by the Constitution of the United States.

First, it obviously violates the Second Amendment, since it infringes on people’s right to keep and bear arms. It also violates the First Amendment’s Assembly clause.

Congress shall make no law … prohibiting … the right of the people peaceably to assemble,

U.S. Constitution, Amendment I

This law doesn’t prohibit people for assembling to cause violence, it prohibits people from publicly drilling, patrolling, or engaging in techniques that are capable of causing bodily injury. Tell me, does that mean that a baseball team cannot walk onto the field with their bats on their shoulders? Because not only can playing that game cause bodily injury, but baseball bats are technically clubs, and according to the FBI clubs are used to commit murder more often than the terrifying “assault weapon”. Congress cannot take away your right to peacefully assemble because you MAY do something or because it looks scary.

Furthermore, Congress cannot prevent you from interfering with government operation or proceedings if they are illegal. Courts have found that people can defend themselves against unlawful arrest, though I would recommend you have a VERY good case before you try it. Even the Supreme Court, in the case John Bad Elk v. United States found that Mr. Bad Elk had legitimately used lethal force to defend himself against a law enforcement officer who was unnecessarily using excessive force to arrest him.

Perhaps we should remind those in Congress of another examples where a private militia rose up to protect the rights of others. In the Battle of Athens, TN, veterans armed themselves and fought against law enforcement and government officials who were trying to steal an election. When the corrupt Sheriff left the county, it was the “private paramilitary organization” that patrolled the streets to keep law and order until a new Sheriff could be elected.

Last, but certainly not least, this act would violate the Fifth Amendment’s Due Process Clause.

No person shall be … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

You have a right to live at liberty, without restraint except as necessary for public safety. Patrolling a neighborhood armed is not a danger to public safety. Publicly drilling in the use of weapons, martial arts, or anything that is capable of causing bodily injury is not a danger to public safety. And never forget that government actors, including law enforcement, are there to serve you, not the other way around.

I can see only one logical reason for this type of legislation. Similar to the orders to destroy the firearms and ammunition of the colonists, this legislation is meant to leave the American people unarmed, untrained, and unprepared to act as a free people. This leaves them dependent on government for their own safety, and makes them subject to the government’s will. This bill should not only be named the “Disarming The Militia Act”, It should be called the “Preparing to Enslave the American People Act”.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 19, 2024

• Nobody likes paying taxes, but where did the federal income start?
• The Sixteenth Amendment did not create the federal income tax.
• However, the 16th Amendment did fundamentally change the republic.

As April 15th approaches and people spend valuable time and money on filing their income tax returns, I think it worth our time to look at the source of our pain. While plenty of people grouse and complain about paying income taxes, most don’t realize that the cause of their pain is the actions of the states back in 1913. When the states ratified the Sixteenth Amendment they did more than just help the feds collect income taxes, they fundamentally changed the republic for the worse.

Nobody I know likes paying taxes. They are a necessary evil if we are to have a stable society. So the most common questions debated are who pays taxes and how much? The more important decision is who decides those questions?

Collecting Taxes

In 1787, when the Constitution was drafted and ratified, the framers of this country understood the need to collect taxes. So they delegated the power to tax to Congress, but with some very specific restrictions.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

U.S. Constitution, Article I, Section 8, Clause 1

Yes, Congress can collect taxes. Duties, imposts, and excises are simply different types of taxes that Congress can collect. Notice however, there are only three things Congress can collect taxes for:

• To pay the Debts of the United States.
• For the common Defense of the United States.
• And for the general Welfare of the United States.

Notice also that Congress can only collect taxes to be used for the United States, capital “U”, capital “S”, a proper noun for the entity known as the United States. This is the very same proper noun used in the Tenth Amendment to say:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Here we see our first problem. We the People have not held Congress to collecting taxes only for constitutionally authorized purposes. As Alexis DeTocqueville said:

“The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money”

Alexis DeTocqueville

Congress has discovered how to bribe the public, and oh, how they have used it. However, for the first century or so, there was a serious impediment to Congress’ ability to overtax the people: The Constitution.

Direct Taxes

When the House of Representatives was established in Article I, Section 2, an important little phrase was included.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers,

U.S. Constitution, Article I, Section 2, Clause 3

Not only were the seats in the House to be apportioned to the states by population, but so were direct taxes.

A direct tax is usually a property tax or ad valorem [by value] tax, as opposed to an indirect tax imposed upon some right or privilege, such as a franchise tax.

Direct Tax – The Free Legal Dictionary

It’s not that Congress couldn’t impose any direct taxes, only that they had to apportion those taxes to the states. If Congress were to pass a tax on the value of your property, your estate, or even your income, they had to divide the tax up amongst the states based on their population, and have the states collect it. As we will see, this is extremely important, since it places the states between the people and the United States government.

The Income Tax

The income tax didn’t start with the 16th amendment; it started in 1862 to fund the Civil War. Since it was a consistent revenue stream, the income tax was sold to the people with a warning that it was necessary, the promise that it would be limited by a person’s income, and was scheduled to expire in 1870. However, that did not make it constitutional. Most likely due to the urgencies of the war though, this tax was never challenged in court.

Then, in 1894, Republican Senator John Sherman argued that the income tax should become permanent, the consumption taxes of the day were not “fair”, and that the burden of this tax should be borne by the wealthy rather than by everyone. Sound familiar? The Revenue Act or Wilson-Gorman Tariff of 1894, instituted a 2% tax on all income over $4,000 (approximately $144,000 in 2024 dollars). The supreme Court in 1895 found this tax to be unconstitutional in the case Pollock v. Farmers’ Loan & Trust Company.

The tax imposed by sections 27 to 37, inclusive, of the act of 1894, so far as it falls on the income
of real estate, and of personal property, being a direct tax, within the meaning of the constitution, and therefore unconstitutional and void, because not apportioned according to representation, all those sections, constituting one entire scheme
of taxation, are necessarily invalid.

Pollock v. Farmers’ Loan & Trust Company, 157 U.S. 429 (1895)

If the 1894 income tax was unconstitutional, does that mean that the 1862 tax was as well? In 1906 and 1908, two prominent members of the republican party voiced their support for an income tax.

[A] graduated income tax of the proper type would be a desirable feature of federal taxation, and it is to be hoped that one may be devised which the Supreme Court will declare constitutional.

Theodore Roosevelt quoted in Seligman, Income Tax: pp.591-592.

Roosevelt believed in a graduated income tax like what we have today. He thought it was a “desirable feature of federal taxation.”

I believe that an income tax, when the protective system of customs and the internal revenue tax shall not furnish enough for governmental needs, can and should be devised which, under the decisions of the Supreme Court, will conform to the Constitution.

William Howard Taft Republican Presidential Nomination acceptance, 1908.

It appears Taft merely saw an income tax as a source of revenue for the federal government, something to supplement the duties and tariffs already imposed. It was not that the federal government was spending too much, but how much can the federal government suck from the people.

Did you notice that both of these men, one President another to be President, seemed to consider little else but the money an income tax would bring into the government’s coffers? Did they even consider the impact on society, our economy, or the workforce in general? If so, I have found no evidence to that effect. There was one consideration other than the desire for other people’s money that both men expressed: Getting it past the Supreme Court. That would require an amendment to the Constitution.

On July 12, 1909, Congress passed a resolution proposing an amendment to the Constitution of the United States to allow Congress to tax income without apportionment. On February 3, 1913, Delaware became the 36th state to ratify the proposed amendment, making it the Sixteenth Amendment to the Constitution, and forever changing the lives of the American people.

The Sixteenth Amendment

As much as people complain about the income tax, there is a fundamental misunderstanding about the Sixteenth Amendment we need to clear up.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

U.S. Constitution, Amendment XVI

The Sixteenth Amendment did not establish the federal income tax. And as we’ve already seen, federal income taxes pre-date the Sixteenth Amendment. So what did this modification to federal power do that was so damaging? It was the first, and so far only, allowance of the federal government to directly tax the people without apportionment to the states. For the first time in our nation’s history, the federal government had an interest in how much money you make and how you spend it. Before the Sixteenth Amendment, unless you were in the military, the only contact you had with the federal government was the post office. Today, the American people spend all year keeping track of how much money they make and how they spend it. Decisions such as buying a house or how to invest their savings is often driven by the deductions on their taxes they would be able to claim. This amendment, and the complex network of laws Congress has created around it, leads millions of Americans to spend over $8 billion a year on tax preparation services. Effectively, tax avoidance has surpassed even baseball as our national pastime, all thanks to the Sixteenth Amendment.

The impact of the Sixteenth Amendment goes far beyond time, effort, and money. The most fundamental change has to do with the removal of the states from the collection of federal taxes. Both the 1862 and 1894 income taxes would have been constitutional, if only Congress had apportioned them to the states, rather than collect them directly. The states would have a say in those taxes, wouldn’t they? It’s a lot easier for the IRS to bully an individual or business to pay what the government wants than it would be for them to bully a state government.

Congress is only allowed to collect taxes to do three things:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

U.S. Constitution, Article I, Section 8, Clause 1

States could look at how Congress was using the taxes collected and refuse to collect the unconstitutional excess. The states could also impact how those taxes were collected. Since the American people have the most influence on the government closest to them, you would have more say over the collection of income taxes in your state that you ever will in the federal government. Furthermore, rather than a person or business being expected to defend themselves in an administrative law court, where everyone but the defendant works for the government, your state could defend you in federal court, and if necessary, even with the state militia.

Impact of the Sixteenth Amendment

It may seem incredible to most Americans today, but there was a time when April 15th, and the need to file federal income tax not only did not exist, but was inconceivable. We should not be surprised that the greed displayed today by those in government for more of the American people’s money has existed far back in our republic. The words of Senator John Sherman, Theodore Roosevelt, and William Howard Taft are examples of the greed most politicians have for your money. However, the impact of the Sixteenth Amendment goes well beyond the dollars lost.

By bypassing the states in the collection of direct taxes, the United States has further supplanted the states’ impact on the people. Where once the states could restrain Congress’ greed by refusing to collect taxes for illegal purposes, now the United States can reach right into your pocket to collect their ill-gotten booty.

Since the Sixteenth Amendment allows Congress to collect taxes on income from any source without apportionment, anything a politician can twist into calling income is fair game. For example, your family works for years and generations to build a farm or business, yet according to Congress, when a loved one passes on, that generational wealth is considered income and taxed. Invest in stocks, real estate, or even baseball cards for your retirement or to leave to your children, and when you sell them, Congress only sees an income to tax, taking no consideration how the value of the income has been crippled by inflation from their own policies. This leaves Congress with an almost limitless ability to tax the American people into poverty and servitude.

All the way back in 1894, Senator Sherman argued that a “progressive” income tax was more “fair”. By extension, that said “progressive” income tax can be used to punish success, thereby giving politicians another platform from which to campaign. There’s an old adage: “What you tax you get less of.” Well taxing income has led to less income, and taxing the income of successful people more has led to less success.

Worst of all, the Sixteenth Amendment has destroyed the fundamental structure of the republic our Founding Fathers created. The fundamental property of a republic is:

a state in which the exercise of the sovereign power is lodged in representatives elected by the people

Republic – Webster’s 1828 Dictionary

Today, the decisions we make about who should represent us seem most impacted by questions of taxation. The constitutional republic created by the Framers saw not only that the power was vested in the people, but that it would remain as close to them as possible. That is why the United States was given limited and enumerated power. When the states ratified the Sixteenth Amendment, they fractured that most fundamental aspect of self-government in America. They diminished their own power, exposing their citizens to hazard without any redress. By handing to the United States the power to directly tax our income, they removed themselves as a bulwark against an overly powerful and greedy central government. And we should not be surprised that there are those in Washington, D.C. who have seen this power to directly tax us and wish to expand it, through wealth and other taxes. Well did Samuel Adams say:

But if our Trade may be taxed why not our Lands? Why not the Produce of our Lands and every thing we possess or make use of? This we apprehend annihilates our Charter Right to govern and tax ourselves…are we not reduced from the Character of free Subjects to the miserable State of tributary slaves?

Samuel Adams May 15, 1764.

In 1913 our states began the process of reducing us from free citizens to the miserable state of tributary slaves. I hope now you see why I am so in favor of the repeal of this amendment of tyranny we call the Sixteenth Amendment.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March, 13, 2024

• In the United States, who is sovereign?
• Did we replace a sovereign monarch with a sovereign oligarchy?
• Do you need government’s permission to sue it?

When can you sue the government? What started out as an erroneous credit report filing has turned into the heart of the question brought before the Supreme Court in the case Department Of Agriculture Rural Development Rural Housing Service V. Kirtz (USDA v. Kirtz). What the court found, and how it got there, points to a serious flaw in the constitutional education of lawyers and judges throughout this nation.

Background

Although not at the heart of our story, this begins with a simple violation of the Constitution.

This case arises from a loan Reginald Kirtz secured from The Rural Housing Service. The Service, a division of the United States Department of Agriculture (USDA), “issues loans to promote the development of safe and affordable housing in rural communities.”

USDA v. Kirtz

The Constitution does not authorize the United States to issue loans for any reason. As the Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution – Amendment X

This may seem like a trivial thing, but if Congress had not passed legislation to allow agencies to loan money, then Mr. Kirtz would not have had the problems that led to this case. Yes, Mr. Kirtz’s problems began after he paid off the loan, but that is not the heart of this case.

According to Mr. Kirtz, he repaid his loan in full by mid-2018. … Despite this, the USDA repeatedly told TransUnion, a company engaged in the business of preparing consumer credit reports, that his account was past due. … These misrepresentations damaged his credit score and threatened his ability to secure future loans at affordable rates. … In an effort to resolve the problem, Mr. Kirtz alerted TransUnion to the error, and the company, in turn, notified the USDA. But, Mr. Kirtz says, the USDA failed to take “any action to investigate or correct” its records. So he eventually decided to sue the agency under the FCRA.

USDA v. Kirtz

Yes, any lending firm could have erroneously reported past due a loan that had been paid in full. And any lending agency could fail to take action to resolve the error, which could lead to a lawsuit. In this case, Mr. Kirtz sued under the Fair Credit Reporting Act (FCRA).

According to his complaint, the USDA furnished information to TransUnion. The agency had notice that the information it supplied was false. That false information impaired Mr. Kirtz’s ability to access affordable credit. Yet the agency failed to take any steps to correct its mistake—either willfully (in violation of §1681n) or negligently (in violation of §1681o). By way of remedy, Mr. Kirtz sought money damages consistent with what the FCRA allows.

USDA v. Kirtz

Mr. Kirtz’s complaint seems simple enough. The lender, the USDA, had been notified that the information it provided to credit reporting service TransUnion was false, and either negligently or willfully refused to correct its mistake. For this violation of the law, Mr. Kirtz sought monetary damages. The response from the USDA is when Mr. Kirtz’s issues went from bad to worse.

In response, the USDA moved to dismiss the complaint. The agency did not dispute that allegations like Mr. Kirtz’s state a viable claim for relief. Instead, it pointed to this Court’s precedents holding that, as sovereign, the federal government enjoys immunity from suits for money damages unless Congress waives that immunity.

USDA v. Kirtz

The USDA did not dispute the fact that Mr. Kirtz had a viable claim. They simply claimed “You can’t sue us, we’re the government.” Notice that the USDA did not claim they had immunity based on a constitutional or even statutory argument, but because the court had previously said so.

Sovereign Immunity

What is this “Sovereign Immunity” the USDA was claiming?

Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch can do no wrong.

Sovereign Immunity – The Free Legal Dictionary

Did you catch that? This whole sovereign immunity comes from the idea that the monarch, the sovereign, can do no wrong. This is exactly what we tried to get away from in 1776. Read the Declaration of Independence and count how many times they complain that the king could do what he wants? There were not consequences for the monarch, because they believed he could do no wrong. This of course was because the king was sovereign.

A chief ruler with supreme power; one possessing sovereignty. (q.v.) It is also applied to a king or other magistrate with limited powers.

Sovereign – The Free Legal Dictionary

What about here in the United States?

In the United States the sovereignty resides in the body of the people.

Sovereign – The Free Legal Dictionary

That means the government is not the sovereign, and therefore does not have sovereign immunity. That hasn’t stop federal courts at all levels from pretending they do. Rather, courts have argued about whether or not Congress had waived said immunity in the Federal Credit Reporting Act.

Yet the lower courts have reached different views on the question whether federal agencies are answerable under the FCRA for their mistakes. Like the Third Circuit, the Seventh and D. C. Circuits have held that the FCRA authorizes suits against government agencies no less than it does private lenders. The Fourth and Ninth Circuits, by contrast, have held that sovereign immunity bars consumer suits against federal agencies. We agreed to hear this case to resolve that conflict.

USDA v. Kirtz

While the Supreme Court notices that the circuit courts are split, it’s not on the question of sovereign immunity, but whether Congress had waived said immunity under FCRA.

Opinion

The court gave a unanimous opinion, written by Justice Gorsuch.

The Executive Branch may question the wisdom of holding federal agencies accountable for their violations of the Fair Credit Reporting Act; certainly the many and resourceful arguments it advances today suggest as much. But Congress’s judgment commands our respect and the law it has adopted speaks clearly: A consumer may sue “any” federal agency for defying the law’s terms. Because it faithfully followed this legislative direction, the judgment of the Court of Appeals for the Third Circuit is

Affirmed.

USDA v. Kirtz

While I admire the court for respecting the acts of Congress, I point to a superior law they completely ignore in this opinion. That the United States has limited and enumerated powers, and that among those powers delegated to it, the power of sovereign in not one of them.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Furthermore, that when the justices took office, they were required to swear or affirm that they would support the Constitution of the United States.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

U.S. Constitution, Amendment VI, Clause 3

As such, the court should have found for Mr. Kirtz not because Congress said the people could sue under FCRA, but because no federal branch, department, or agency has sovereign immunity.

Conclusion

There was plenty more in the opinion of this case, but in my estimation it’s pure distraction. The federal courts, at all levels, agreed that the United States has sovereign immunity, even though that is not a power delegated to it in the Constitution. There was not a single point in the opinion about sovereign immunity being constitutional, yet they still uphold it. How could that be?

For years I’ve asked those who have attended law school a simple question. “When you were in law school, did you study the Constitution or “constitutional law”. In the 4-5 years I’ve been asking that question, I have had exactly one person tell me they studied the Constitution in law school. The supreme law of the land is not studied in law school? The document that every government official is required to swear or affirm they will support, is not studied in law school? This is the fundamental and abject failure in our legal education system.

I doubt a single judge or justice who has heard this case actually studied the Constitution in law school. That explains why the very men and women who took an oath to support it placed the opinions of judges above the supreme law of the land. Although Mr. Kirtz got the outcome he wanted, which was to be allowed to sue the USDA, this is the reason why this case is actually a further corruption of our judicial system. Think about this for a second: Mr. Kirtz was ALLOWED to petition the government for a redress of grievance, a right protected by the First Amendment. However, Congress can allow federal agencies to violate the law without concern they may be sued, based on this false idea from some court that the government is sovereign, but not the people. Is any of this different than some of the grievances we had against King George?

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For depriving us in many cases, of the benefits of Trial by Jury:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

Declaration of Independence

Saddest of all, neither the judges, justices, attorneys, nor parties to this case, seem aware of the fundamental coup d’etat this represents. It’s the destruction of our Constitution and a fundamental alteration of our form of government.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 8, 2024

• How a U.S. President gets elected is both simpler and more complicated than most people think it is.
• What is this Electoral College and why does it exist?
• How can you participate in an election if you don’t know how it works?

Every four years, the United States goes through the ritual of electing a President. I use the term ritual for two reasons. First, most Americans’ understanding of the election process is based on custom or rites rather than the law. Second, most of the customs Americans follow directly contradict the actual process of electing a President of the United States.

Many years ago, I was in Raleigh, NC working on a project with an international team. Every day the whole team would go out for lunch. Since it was a presidential election year, and I was the only American on the team, I was asked about the apparently convoluted process of electing an American President. This was before I had begun studying the Constitution, so I explained the process as best I could based on the customs I had been taught. Today my answer would not only be more coherent, but would include references to the actual laws it was based on.

How it Begins

The first, and probably most fundamental misunderstanding most Americans have about the presidential elections process, is the belief that they vote for President. They do not.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:

U.S Constitution, Article II, Section 1, Clause 2

Like primaries, before 1964 and the ratification of the Twenty-Fourth Amendment, the idea of the people voting for President did not exist in the Constitution.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

U.S. Constitution, Amendment XXIV, Section 1

In fact, the Twenty-Fourth Amendment did not say that people voted for President, only that they could not be denied the right to vote in such an election for failing to pay taxes. It’s yet another example of lack of understanding of the Constitution by Congress and the Several States. The reporting of a national popular vote for President is another lie, since there is no such thing. The people do not elect the President, the states do.

Based on Article II, Section 1, the states have established the manner of appointing electors to be based on a popular vote in the state for a political party. The details vary from state to state, but the general process is the same. Each political party puts together a slate of party faithful who pledge to vote for their party’s candidate. When the state puts together their ballot, they list the party candidates. In the past most states noted that you were voting for electors for that candidate, although recently that has changed. In the 2020 elections 37 of the 50 states (74%) lie on the ballots, claiming their citizens are voting for the actual President and Vice-President, even though they aren’t. So even when the ballot tells you the vote is for electors for President, what you’re actually voting for are pre-selected operatives for a specific party.

Presidential Electors

After election day in November, each state determines which slate of electors to appoint. These electors meet in their state on the first Tuesday after the second Wednesday in December, (3 USC §7).

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

U.S. Constitution, Amendment XII

This is the only federal or national election in the United State. While elections for the House and Senate are for federal offices, they are still state elections. Some states require their electors to vote based on the results of their states’ election. However, in some states the penalty for not voting based on the state’s popular vote may not be all that significant, which has led for some to call for the electors to be unfaithful to their pledge in an attempt to win the election.

Actually, the presidential electors cast two ballots, one for President and another for Vice President, as required by the Twelfth Amendment:

they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

U.S. Constitution, Amendment XII

Since most state laws appoint their electors in a “winner take all” manner, all the electors vote unanimously for their party’s candidates. These electors are party apparatchiks, so they simply vote for their party’s ticket, which was established through a combination of Primary Elections and other internal political machinations. Once the electors have done their duty to their political party, the list of a single name for President and another for Vice-President is signed, certified, and sent to the sitting Vice-President in their role as President of the Senate.

Counting the Elector’s Votes

Next comes the counting of the votes of the presidential electors. This has been codified into law by Section 15 of Title 3 of the United States Code. The process starts with the President of the Senate opening the certificates to be counted.

the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

U.S. Constitution, Amendment XII

Sounds simple enough. When does this counting happen?

(a) In General.-Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer.

3 USC §15

According to the Twelfth Amendment, the only role the President of the Senate has during this session is to open the certificates and then have them counted. Congress confirmed this in section (b) of §15.

(b) Powers of the President of Senate.-

(1) Ministerial in nature.-Except as otherwise provided in this chapter, the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties.

(2) Powers explicitly denied.-The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.

3 USC §15

Sadly, this is where Congress has begun interfering with the election process.

(c) Appointment of Tellers.-At the joint session of the Senate and House of Representatives described in subsection (a), there shall be present two tellers previously appointed on the part of the Senate and two tellers previously appointed on the part of the House of Representatives by the presiding officers of the respective chambers.

3 USC §15

Yes, this is a minor point. The Constitution doesn’t say how the votes are to be counted. After all, I guess they would assume a group of intelligent men could figure out how to safely and accurately count the votes. Congress, on the other hands, wanted their input on the process.

If you read the Twelfth Amendment, you see Congress has no role in the presidential election unless none of those voted for an office receives a majority. Here we see Congress has decided for themselves that they will pick the tellers who will count the votes. That’s not the only way Congress has decided to interfere with the election. It starts with a subtle point:

(d) Procedure at Joint Session Generally.-

(1) In general.-The President of the Senate shall-

(A) open the certificates and papers purporting to be certificates of the votes of electors appointed pursuant to a certificate of ascertainment of appointment of electors issued pursuant to section 5, in the alphabetical order of the States, beginning with the letter A; and

(B) upon opening any certificate, hand the certificate and any accompanying papers to the tellers, who shall read the same in the presence and hearing of the two Houses.

3 USC §15

What are these purported certificates? The Constitution says nothing about purported certificates. The Twelfth Amendment says the President of the Senate will open the certificates he has received from the states and have them counted. What does the section 5 say?

(a) In General.-

(1) Certification.-Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day.

3 USC §5

Who the state electors are is none of the United States’ business; it is solely a state matter. I suppose the reasoning behind sending the list of electors to the Archivist of the United States is to allow fake certificates to be identified and not counted. In fact, federal law claims to establish a rather complicated process for the sending of the certificates from the electors to the President of the Senate and others. The problem is, the Constitution does not delegate to Congress the authority to tell states they have to register their electors with the United States or to have their certificates be sent anywhere but to the President of the Senate. That’s not all of Congress’ interference in the election.

(2) Action on certificate.-

(A) In general.-Upon the reading of each certificate or paper, the President of the Senate shall call for objections, if any.

3 USC §15

Again, the Constitution does not give Congress any say in counting of the presidential electoral votes; they are there only to observe. So what are the reasons Congress thinks it can object?

(ii) Grounds for objections.-The only grounds for objections shall be as follows:

(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

(II) The vote of one or more electors has not been regularly given.

3 USC §15

Remember back to January 6th, 2020? There were several states that did not lawfully appoint electors. Not because of some law made up by Congress, but because the manner of appointing them was modified by state courts or the state’s Secretary of State, not the legislature. Those objections though, should have been dealt with at the state level, not the Congress.

Majorities

With the election process dominated, and in many cases controlled, by the two major parties, it seems fairly unlikely that that a candidate would not receive the votes of a majority of the electors, as required by the Twelfth Amendment.

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

U.S. Constitution, Amendment XII

However, as dissatisfaction with the two dominant parties grows, this becomes more and more a possibility. There are two things the American people need to be aware of should such a situation happen. First, the President or Vice-President needs to have the votes of a majority of the electors appointed. Should a state fail to legally appoint electors, as happened in 2020, not only should their votes not have been submitted to the President of the Senate, but should not be considered when determining a majority. Second, should no candidate receive a majority, then the decision of who will be President devolves to the House of Representatives and the Vice-President to the Senate.

and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

U.S. Constitution, Amendment XII

In the case of the House choosing a President, the state delegations vote by ballot. That means each state gets a single vote. Since the Congress is seated before the votes for President are counted, and the partisanship that exists in both houses is so rampant, the choice would ultimately be decided by the majority in each state’s delegation in the House.

As I’ve noted, the process is similar if no candidate for Vice-President receives a majority of votes.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

U.S. Constitution, Amendment XII

Inauguration

Only after the decisions have been made as to who will be the new President and Vice-President, are they legally considered President-elect or Vice-President-elect. These positions have absolutely no power, but we recognize this as a time for them to work on their transition to office at the inauguration.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

U.S. Constitution, Amendment XX, Section 1

Before their terms begin, the President and Vice-President must take an oath or affirmation of office. The President’s oath is specified in Article II, Section 1, Clause 8 of the Constitution.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

U.S. Constitution, Article II, Section 1, Clause 8

Then, and only then, does the United States have a new President.

Conclusion

If I could go back in time and explain to those visiting teammates how our presidential elections work, I would focus on three points.

1. The political parties choose their candidates through a combination of primaries, caucuses, and internal negotiations.
2. The states elect the President based on the advice of their citizens.
3. The vast majority of the American people are unaware of points 1 and 2.

While many people say “Knowledge is Power”, that is not actually true. Knowledge only has power if it’s used for some action. Now that you have the knowledge and a better understanding of how the United States elects a President, I hope you will use it to exercise your power as a United States citizen. Use this knowledge to push for your state to accurately portray who is being voted for on Election Day. Demand that they follow the Constitution in the appointment of their electors for President. Last, and probably most important, choose wisely who you vote for as presidential electors.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 28, 2024

• Are mask mandates constitutional?
• Do you have a right to refuse to wear a mask?
• Can you build a compelling argument for why you refuse?

I’ve spoken repeatedly about the unconstitutionality of most mask mandates. Recently, the Third Circuit Court of Appeals was asked to review two cases where people were punished for attending school board meetings while refusing to wear masks. Sadly, the cases, as described in the Circuit Court opinion, seem poorly founded, thus leading to decisions against the plaintiffs. I think a closer look will not only show the flaws in the case, but help others build better ones in the future.

Before we start, I want to state that the COVID-19 mask mandates were not only unconstitutional, but illegal as well, as I will show later in this review. However, we need to start where the Circuit Court started: With their own assumptions.

Background

The court stated their opinion with some background on the two cases they were reviewing.

On March 9, 2020, New Jersey Governor Phil Murphy declared a state of emergency in response to the quickly spreading coronavirus known as COVID-19. … As we now know, it primarily spreads through airborne particles that accumulate in enclosed spaces, respiratory droplets produced when a person coughs, sneezes, or talks, and occasionally through contact with objects contaminated with the virus. How COVID-19 Spreads, CDC (Aug. 11, 2022), https://perma.cc/EPP9-AUWT.

Falcone v. Dickstein et. al. (22-2701) Opinion & Gwyneth K. Murray-Nolan et. al. (22-2702) Circuit Court Opinion

In order to perform a fair review, we must take into consideration what was known back in 2020 even though much of it has since been proven false. We must also consider what is fact and what is opinion. For example, the court points to a statement from the Centers for Disease Control and Prevention (CDC) about how COVID-19 spreads. However, nothing in the document referenced even suggests that there are studies showing that this is how COVID spreads. This “common knowledge” may be based in some reason and logic, but that does not make it true. While later studies such as one known as the Chocrane Report found that, in general, masking made little if any difference in the transmission of SARS-COV-2, the virus that causes COVID-19.

Individuals infected with COVID-19 can spread the disease while asymptomatic or pre-symptomatic, making the virus difficult to control.

Falcone v. Dickstein et. al. (22-2701) Opinion & Gwyneth K. Murray-Nolan et. al. (22-2702) Circuit Court Opinion

Once again, we see decisions being driven by assumptions that later turn out to be untrue. For example, Asymptomatic transmission of covid-19 was published in December of 2020, and stated.

Earlier estimates that 80% of infections are asymptomatic were too high and have since been revised down to between 17% and 20% of people with infections.

Asymptomatic transmission of covid-19

How are people supposed to make informed decisions with so many opinions being treated as scientific facts? In part because of these assumptions, Governor Murphy took several steps.

Over the course of the ensuing months, Governor Murphy issued a series of Executive Orders to monitor and curb its spread. One of them mandated that New Jersey schools “maintain a policy regarding mandatory use of face masks by staff, students, and visitors in the indoor portion of the school district premises,” except, for example, when an individual qualifies for and obtains a medical exemption. …

In preparation for the 2021-2022 school year, New Jersey School Districts—including the Freehold Township and Cranford Township School Districts—implemented mandatory indoor masking policies consistent with the Executive Order.

Falcone v. Dickstein et. al. (22-2701) Opinion & Gwyneth K. Murray-Nolan et. al. (22-2702) Circuit Court Opinion

Both Mr. Falcone and Ms. Murray-Nolan objected to the New Jersey mask mandate in schools. Both attended school board meetings unmasked, were confronted by members of the school board, and threatened by the board with contacting law enforcement. Both stated that attending the board meeting maskless was constitutionally protected political speech, and that the boards had retaliated against them for it, Mr. Falcone by the board canceling subsequent meetings and Ms. Murray-Nolan by her being arrested. Both eventually sued their respective school boards and law enforcement under 42 USC § 1983, Civil action for deprivation of rights and New Jersey Statutes Title 10. Civil Rights 10 § 6-2.

In Mr. Falcone’s case:

The District Court dismissed the amended complaint on the ground that Falcone had no standing to sue. It found his alleged injuries—the receipt of a summons and the Board’s meeting cancellation—were not “traceable” to the BOE or Police Defendants but instead to Governor Murphy’s Executive Order that the Board had to obey. … It followed, in the District Court’s view, that Falcone’s alleged injuries also were not “redressable” by injunctive relief because “an injunction directed at Defendants would not enjoin the Governor from implementing or enforcing a mask mandate.”

Falcone v. Dickstein et. al. (22-2701) Opinion & Gwyneth K. Murray-Nolan et. al. (22-2702) Circuit Court Opinion

The Circuit Court reversed that decision on standing, and remanded the case back to the District Court.

In Ms. Murray-Nolan’s case:

The District Court rejected the Cranford Defendants’ standing arguments but agreed Murray-Nolan failed to state a claim for First Amendment retaliation. … Her alleged “right to appear at [the Board meetings] without a mask” was not “inherently expressive” conduct, it reasoned, but rather was expressive only “because she told Defendants that it was, and sued to prove it.”

Falcone v. Dickstein et. al. (22-2701) Opinion & Gwyneth K. Murray-Nolan et. al. (22-2702) Circuit Court Opinion

The Circuit Court found:

Amid valid government-mandated health and safety measures, refusing to wear a face mask is not expressive conduct protected by the First Amendment. Murray-Nolan’s retaliation claim also fails because the police had probable cause to arrest her, and she does not link her constitutionally protected speech activities (e.g., her social media posts) to any of the Cranford Defendants’ allegedly retaliatory actions. We thus affirm the District Court’s dismissal of her amended complaint.

Falcone v. Dickstein et. al. (22-2701) Opinion & Gwyneth K. Murray-Nolan et. al. (22-2702) Circuit Court Opinion

Analyzing the Cases

In both cases, the plaintiffs sued under both state and federal laws, claiming a deprivation of rights under the First Amendment. While the court focused on issues of standing, I see a much more fundamental issue with both cases: The claim of a First Amendment violation. That amendment reads:

Congress shall make no law … abridging the freedom of speech,

U.S. Constitution, Amendment I

Many people claim that the Fourteenth Amendment somehow makes the First Amendment apply to the states, but the language of the Fourteenth Amendment does nothing to change the language of the First.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

U.S. Constitution, Amendment XIV

In my opinion, that makes the foundation of both of these cases very weak. They may have sued alleging violation of Article I, Section 6 of the New Jersey Constitution.

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.

New Jersey Constitution, Article I, Clause 6

That is still a weak argument, since in neither case the plaintiff was prevented from speaking. Rather, what we have here is a deprivation of both liberty and property without due process of law.

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV

While this argument can be laid at the feet of the School Boards, it would more properly be extended to Gov. Murphy.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

42 U.S.C. §1983

Rights Violated

Let’s look at the details of my argument for the rights of Mr. Falcone and Ms. Murray-Nolan being violated. Let’s start where this legal issue began, with Gov. Murphy’s executive order.

The Governor shall take care that the laws be faithfully executed.

New Jersey Constitution, Article V, Section 1 Clause 11

The Governor of New Jersey has the power to make sure the laws be faithfully executed. Therefore, for Gov. Murphy’s executive order to be valid, it must be allowed under New Jersey law. I am not an expert on New Jersey law, so let’s assume that the law allows the Governor to issue such an executive order. There’s still one very serious problem with that mandate: It deprives people of both their liberty and the property they have in their own body without due process of law.

An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

Due Process – The Free Legal Dictionary

Blanket mandates, such as those used by the State of New Jersey, violate due process because they do not safeguard the rights of the individual. There is no requirement someone be shown to have COVID-19 nor that they are contagious, before their liberty is infringed. As shown earlier in this article, the assumptions that supported the mask mandates were not based in rigorous scientific studies, but unsubstantiated statements from government agencies that do not legally exist. (The Constitution does not delegate to the United States the power to regulate public health, food, or drugs.)

Furthermore, in the United States, the government is supposed to have the burden of proof before they infringe on your rights. Since no probable cause was established that Mr. Falcone or Ms. Murray-Nolan were contagious, and therefore a danger to others, requiring them to wear masks violated their liberty. Also since wearing a mask can and does have an impact on the wearer, these mandates deprived them both of control of their property, namely their bodies. Even if we accept that at the time of these incidents, the medical establishment believed in the efficacy of wearing masks, the logic of mandates contradicts that assumption. After all, if masks were really that effective, why do they only work if everyone is wearing one? Since there was no due process either in the executive order creating the mask mandate or in its implementation, then the government-mandated health and safety measure was not, as the Circuit Court claimed, valid, and the school districts were not required to enforce them.

Since 42 USC §1983 states that “Every person who”, under color of law, deprives someone of a right protected by the Constitution or laws is liable, that would include not just the Governor, as the court stated, but both the board members and law enforcement as well.

Conclusion

I’m not saying this argument would have ultimately brought about a different outcome for Mr. Falcone or Ms. Murray-Nolan. However, imagine the scene where they entered the board meeting without masks. What if, rather than a general claim of speaking maskless being a constitutionally protected right, they could have provided both the board and law enforcement with a simple 1-2 page document pointing out that the governor’s executive order was unconstitutional and therefore void.

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County :: 118 U.S. 425 (1886)

What if they could have stood in front of their boards and not only articulated their points in detail, but provided evidence both constitutional and judicial of the rightness of their point? What if, should law enforcement still have been engaged, they could show not only the unconstitutionality of the acts of the governor and the board, but their criminality as well?

An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.

Ex parte Siebold :: 100 U.S. 371 (1879)

Would the outcome of their situations have been different? We will never know. However, I for one have found that a well reasoned and supported case, especially with documentation, can have a profound impact on those we are trying to persuade.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 21, 2024

• When does the No Fly List become a tool of tyranny?
• Can government actors avoid the consequences of their actions by simply calling them moot?
• Could you be on the No Fly List and not even know it.

While looking through recent oral arguments at the Supreme Court, I stumbled across the case FBI v. Fikre. At first, I thought it was another simple procedural case, but something about it caught my attention. The oral arguments held before the Supreme Court were about whether Mr. Fikre’s rights were violated when he was placed on the No Fly List, and was not moot because he ad been removed from the list. As I started looking deeper into the case though, I found intrigue worthy of a Grisham novel.

The No Fly List

Most Americans have heard of the “No Fly List”. Created after the 9/11 terrorist attacks, the “watch list” is actually two lists.

The Terrorist Screening Center, a division within the FBI’s National Security Branch, maintains a terrorism watchlist. Two components of that watchlist are the No Fly List, which contains the names of individuals who are prohibited from flying within, to, from, and over the United States, and the Selectee List, which contains the names of individuals who must undergo enhanced security screening before being permitted to board a flight.

FBI v Fikre – Petition for Certiorari

According to Laura K. Donohue in her book The Cost of Counterterrorism: Power, Politics, and Liberty, when the watch list was created, the No Fly and Selectee lists contained less than 1,000 names. By April, 2005, those lists contained over 70,000 names. Updated numbers are hard to obtain since the FBI keeps membership in the list secret, even from those on the list.

Individuals can appeal travel-related issues through DHS’s Traveler Redress Inquiry Program (TRIP). See 49 C.F.R. 1560.205. Before 2015, individuals who requested redress using DHS TRIP were not told whether they were on the No Fly List and were not given any reasons or evidence supporting their possible inclusion on that list. …

In 2015, the government revised DHS TRIP to include additional procedural safeguards. See ibid. United States citizens and lawful permanent residents seeking redress now are told whether they are on the No Fly List and, to the extent possible consistent with national-security and law-enforcement interests, the reasons for their status.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Fikre v. FBI

Which brings us to Mr. Yonas Fikre and his encounter with the No Fly List and the FBI.

Fikre is an American citizen who, until 2009, lived in Portland, Oregon and worked for a cellular telephone company. In late 2009, Fikre traveled to Sudan to establish a consumer electronics business in East Africa. In April 2010, while still in Sudan, Fikre was approached by two FBI agents who questioned him about his association with the as-Saber Mosque in Portland and his commercial finances. The agents told Fikre that he had been placed on the No Fly List, which identifies individuals who are prohibited from flying into, out of, or over the United States and Canadian airspace by commercial airlines.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

A United States citizen travels to Sudan for work, where he is approached and questioned by two FBI agents. While I did not find the details in the Ninth Circuit opinion, it appears that the primary, if not only reason, the FBI questions Mr. Fikre was his association with a mosque and his business. Somehow, this was enough to place Mr. Fikre on the infamous No Fly List. Or was it?

The FBI agents offered to remove Fikre from the list if he became a government informant. Fikre refused.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Here’s where red flags flew up for me. Is Mr. Fikre a danger to air travel, or merely a potential informant for the FBI? Either way, Mr. Fikre was unable to return to the country of his citizenship because he had been put on a list. But his tribulations were not over.

Fikre’s business took him to the United Arab Emirates (UAE) in September 2010. As recounted by Fikre, Emirati secret police seized him from the place where he was staying in June 2011 and transported him to an unknown location where he was imprisoned and tortured for 106 days. During this time, Fikre was interrogated about his connection to the as-Saber Mosque and the nature of his financial dealings.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Why was the UAE interested in a mosque in Portland, OR?

One of the interrogators told Fikre that the FBI had requested his detention.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Mr. Fikre was released by UAE officials in September 2011. Since he was unable to return home because of being on the No Fly List, he sought refuge in Sweden.

Getting Off the No Fly List

While the process for being placed on the No Fly List is shrouded in secrecy, the government was nice enough to provide a way to challenge your placement.

The Department of Homeland Security (DHS)’s Traveler Redress Inquiry Program (TRIP) allows individuals the opportunity to have the Transportation Security Administration review and, if appropriate, correct their files if it determines that a person has been erroneously placed on a watchlist.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

It appears, when it comes to the No Fly List, you’re considered guilty until proven innocent. That is, if you could actually find out you were on the No Fly List.

As initially implemented in 2007, the government responded to TRIP inquiries without confirming a traveler’s inclusion on the No Fly List. Fikre attempted in November 2013 to rectify his situation through TRIP, but the DHS neither confirmed nor denied his placement on the No Fly List in response to this first inquiry; it stated only that “no changes or corrections [we]re warranted at th[at] time.”

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Basically, the United States government would neither confirm, nor deny, that Mr. Fikre was on the No Fly List, even though he was not allowed to board an airplane to the United States because he was on the list. Standard bureaucratic double-speak.

In 2015, the DHS modified TRIP to comply with the judgment in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014). The revised TRIP protocol includes additional procedural safeguards that were unavailable at the time Fikre filed his action. Requesters are now apprised of their presence or absence on the No Fly List and the unclassified reasons for their status. Applying the revised procedures, in February 2015 the DHS informed Fikre that he was and would remain on the No Fly List because he had been “identified as an individual who may be a threat to civil aviation or national security.” No other reasons were provided for the decision to maintain Fikre on the No Fly List.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Eight years after its implementation, the Traveler Redress Inquiry Program now actually admits if someone is on the No Fly List. Now this program admits Mr. Fikre is, in fact, on the No Fly List. The only reason given is that someone thinks he is a threat to civil aviation or national security. Apparently, the concept of Due Process is as foreign to the FBI as the idea of liberty and justice for all.

Fighting Back

What did Mr. Fikre do in response to this revelation from the FBI? He filed a lawsuit.

Fikre avers that these events damaged his reputation by stigmatizing him as a suspected terrorist and so strained his marriage that his wife divorced him while he was stranded outside of the country.

Fikre brought the instant suit against the government raising a variety of common law, statutory, and constitutional claims. As relevant here, Fikre alleged that the FBI violated his right to substantive due process by depriving him of his liberty interest in his reputation and international travel, and by conditioning his removal from the No Fly List upon his agreement to become a government informant. Fikre’s complaint also maintained that the FBI denied him procedural due process by placing and keeping him on the No Fly List without adequate notice and an opportunity to be heard. Fikre prayed for injunctive and declaratory relief for both due process claims and asked, among other things, for a declaration by the government that he should not have been added to the No Fly List.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

The court noted that Mr. Fikre’s original complaint contained 16 causes of action, but the appeal only dealt with his due process and Fourth Amendment claims.

This is when the next twist in our saga appeared.

The Defendants moved to dismiss the operative complaint and, shortly thereafter, notified Fikre that he had been removed from the No Fly List. In a joint status report filed at the district court’s direction, Fikre agreed that, to the extent he sought an injunction requiring the Defendants to remove him from the list, that claim was moot. Fikre contended, however, that he remained entitled to other injunctive and declaratory relief.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Now that they’re being sued, the FBI removes Fikre from the No Fly List, then claims he no longer has a cause of action because he’s not on the list anymore. The Ninth Circuit Court noted:

The district court subsequently dismissed Fikre’s remaining procedural and substantive due process claims in a detailed decision. The court reasoned that the government’s removal of Fikre from the No Fly List was “a sufficiently definite action” to render his claims moot. In reaching this conclusion, the district court observed that the Defendants had publicly stated that Fikre was no longer on the No Fly List, that more than six months had elapsed since this change in status, and that the record did not indicate a lack of good faith on the government’s part. The district court also “emphasize[d]” that “the courthouse doors will be open to [Fikre]” were he to be reinstated to the No Fly List in the future.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

Not only did the District Court ignore the consequences of the FBI placing Mr. Fikre on the No Fly List, it actually claimed there was no lack of good faith on the government’s part. To my knowledge, the FBI has yet to produce any evidence of probable cause that Mr. Fikre was ever a threat to air travel or national security. Furthermore, the FBI tried to extort Mr. Fikre to become an informant in exchange for not only being removed from the list, but being allowed to go home. There is also testimony that the FBI engaged a foreign entity, the United Arab Emeries, to detain and torture Mr. Fikre in what appears to be an attempt to circumvent U.S. law and the Constitution. How much bad faith does the District Court need?

We reverse the district court’s dismissal of Fikre’s due process claims and remand for further proceedings.

Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion

In 2018, eleven years after his saga began, the Ninth Circuit reversed the District Court’s decision of mootness. This means the case went back to the District Court to be heard. One might hope that Mr. Fikre’s ordeal was over, but no. The District Court again found Mr. Fikre’s case moot, although with a few modifications. Once again, Mr. Fikre appealed to the Ninth Circuit.

The panel reversed the district court’s dismissal on mootness grounds of Yonas Fikre’s substantive due process and non-stigma-related procedural due process No Fly List claims; vacated the district court’s dismissal of Fikre’s stigma-plus procedural due process claim; and remanded to the district court to consider, in the first instance, whether Fikre stated a viable stigma-plus procedural due process claim considering both his past placement on the No Fly List and his alleged inclusion in the Terrorist Screening Database.

Fikre v. FBI (20-35904) – Ninth Circuit Court of Appeals – Opinion

Meanwhile the District Court separated the stigma-related and non-stigma-related claims, the Circuit Court pointed out.

The panel held that because the government failed to follow the instructions given by this Court the last time Fikre’s case was before the court, see Fikre v. FBI (Fikre I), 904 F.3d 1033 (9th Cir. 2018), the district court erred by dismissing as moot Fikre’s No Fly List claims.

Fikre v. FBI (20-35904) – Ninth Circuit Court of Appeals – Opinion

What did the government fail to do?

In Fikre I, the Court held that an exception to mootness – the voluntary cessation doctrine – applied to Fikre’s No Fly List claim. On remand, FBI Supervisory Special Agent Christopher Courtright filed a declaration in support of the government’s motion to dismiss. The panel held that the Courtright Declaration did not provide the assurances specified by Fikre I as adequate to overcome the voluntary cessation to mootness. The government has assured Fikre only that he does not currently meet the criteria for inclusion on the No Fly List. It has not repudiated the decision to place Fikre on the list, nor has it identified any criteria for inclusion on the list that may have changed. Because Fikre I governs, the district court should not have dismissed the No Fly List due process claims as moot.

Fikre v. FBI (20-35904) – Ninth Circuit Court of Appeals – Opinion

So the FBI basically said “Oops”, and thought that would get them off the hook. Well, the Ninth Circuit didn’t buy that. And since the FBI did not buy the Ninth Circuit’s opinion, they appealed to the Supreme Court.

Supreme Court

The court of appeals erred in holding that respondent’s claims challenging his placement on the No Fly List are not moot even though he was removed from that list seven years ago and the government has submitted a sworn declaration stating that he “will not be placed on the No Fly List in the future based on the currently available information.”

FBI v Fikre – Petition for Certiorari

Not surprising, the FBI seems to be ignoring those inconvenient facts found in the Ninth Circuit case. The reasoning behind their appeal? It’s that other circuits have found differently.

The court’s holding directly conflicts with decisions of the Fourth and Sixth Circuits that have found similar No Fly List claims moot upon the execution of declarations materially identical to the one in this case.

FBI v Fikre – Petition for Certiorari

Yet Sopan Joshi, attorney representing the FBI, stated in his opening remarks during oral arguments at the Supreme Court claimed:

Respondent’s No Fly List claims are moot. He’s not on the list. He hasn’t been on the list in eight years. And he won’t be put back on the list in the future based on the currently available information. That makes it absolutely clear that his return to the list for the same reasons he was put on it initially can’t reasonably be expected to recur.

FBI v. Fikre – Oral Arguments before the Supreme Court

How is it absolutely clear that Mr. Fikre will not be returned to the No Fly List for the same reason he was initially put on it, if the FBI refuses to identify the reason he was put on the list in the first place? And how can Mr. Fikre avoid being placed on the list if the FBI won’t identify what changed to have him removed from the list?

Conclusion

What at first seemed to be little more than a procedural case has really captured my attention. Intrigue, spy craft, and black lists reminds me of the Tom Clancy novels I used to enjoy. Imagine being stranded overseas, unable to return home, and not knowing the reason why? He was interrogated first by the FBI, and next by a foreign power’s secret police. Then, when you finally get your day in court, the government simply changes its mind and expects to get away scot-free.

This should be an interesting opinion to read. I wonder how many U.S. citizens have been captured by the No Fly List without any probable cause or due process? This is also not the first time a government has attempted to get away with illegal acts by changing things after the fact and calling the claims against them moot. All in all, it could be a very interesting opinion indeed.

© 2024 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 14, 2024

• We are in the middle of another primary season. But have you considered what the purpose behind these primaries?
• Why do we have an election season before the election?
• Why does the American taxpayer fund elections for private organizations?

I propose that all elections for the board members of non-profit corporations should be run by the state at taxpayer expense. After all, we already have taxpayer funded elections for private organizations. We call them “Primaries”.

While this year’s presidential primaries are pretty much a fait accompli, there are still hundreds, if not thousands, of primary elections that will be held over the next few months. In some cases the race is so partisan that the primary effectively decides the race and the general election is moot. What’s the purpose of these taxpayer funded private elections? Why to limit your choices on election day, of course. So why do we keep paying for someone else to take away our choices?

Before Primaries

It may surprise many of you, but the word “primary” did not exist in the Constitution until 1964, with the ratification of the Twenty-Fourth Amendment.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

U.S. Constitution, Amendment XXIV

The reason is quite simple. Though there were a few primaries in the United States as early as the 1840s, it wasn’t until the early 20th century that they became widespread. In fact, the modern primary is merely the latest attempt by political parties to control elections. Starting in the colonial period, and continuing into the 19th century, political parties widely used caucuses to choose their candidates for state and local offices. Although the use of caucuses declined in the 20th century, several states still use them to choose their state’s political parties’ candidates for President. Concerns about abuses of the caucus system led state political parties to adopt conventions as the method of choosing their candidates. However, abuses of this system has led to their general demise, with the exception of the national parties choices of their presidential candidate. For the most part, conventions have been replaced by primaries elections in the 20th century. The process of political parties choosing their candidates became more and more influential as we changed how we voted.

How We Vote

For the first 50 years of our history, people did not vote by secret ballot. Rather, people voted “viva voce”, or by voice. This helps explain why Article II of the Constitution requires Presidential Electors to vote by ballot.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

U.S. Constitution, Article II, Section 1, Clause 3

Imagine walking into a courthouse, swearing on a Bible that you were who you claimed to be, and had not already voted, then announcing in front of the entire room your name and who you were voting for? That’s how it was done until the early 19th century. While this may sound crazy to modern ears, the party atmosphere that surrounded voting probably explains why turnouts routinely reached as high as 85%.

In the early 19th century, states started adopting the paper ballot, but not like the ones we see today. The original paper ballot was nothing but a blank scrap of paper, which you would write in your candidate’s name and drop it in a box. In an attempt to be helpful, Newspapers began printing blank ballots, listing only the offices which were up for election. Voters could clip these ballots out of the paper, write in their candidates name, and drop them in the ballot box. How long do you think it was before political parties figured out a way to influence the vote? If your answer is “Not long”, you’d be correct.

By the mid-19th century, state Democrat and Republican parties were printing flyers with not only the offices, but the parties candidate already filled in. It was legal for people to simply drop these pre-printed “tickets” in the ballot box, which certainly made voting down the party line easier. This, of course, led to claims of fraud, which led the states of New York and Massachusetts in 1888 to require voters to only use ballots printed by the state. These ballots resemble what we see today, listing not only the offices, but all the candidates who were running for those offices. By using state laws to hamper a candidate’s ability to be on said ballot, the political parties have been able to regulate who you get to vote for in the actual elections.

States do allow write-in voting, but the laws often make it extremely difficult to win a race that way. For example, most states have a requirement that the candidate’s name be legible, written a certain way, and that it be spelled properly. Joe Biden ran a write-in campaign for the Democratic primary in New Hampshire. I wonder if the rules required people to write in “Joe Biden”, “Joseph Biden”, “Joseph R. Biden”, or “Joseph Robinette Biden”? Not only does a write-in candidate have to convince people to vote for them, they also have to train them to spell their name correctly. That is probably why, since the general adoption of state printed ballots, only two congressional races have been won by a write-in candidates, Strom Thurmond in 1954 and Charlie Wilson in 2006.

Controlling the Vote

Now the states are not only in control of who is on the ballot, but allow the state political parties to make that decision for them. This creates a very incestuous relationship, where those in office make the laws that make sure the political parties have an advantage. Which leaves us with the situation where the political parties tell us which of their members the people will be “allowed” to vote for. Of course we’re told that it’s the people in the parties who are choosing their candidates, but the last two presidential elections exposed that to be a lie. In both 2016 and 2020, Bernie Sanders was leading the race for the Democratic nomination for President, only to have his chance taken away by party machinations. While that might be the most blatant example, it certainly isn’t the only time political parties have influenced the nomination process. Through money, power, and influence, the American people are told who would be the “most electable” candidate or who would best represents “the party”, all to get us to choose the candidate the party wants. The higher the office, the more time, money, and influence the parties expend to tell you how to vote. By the time we get to Election Day, most of the decisions have already been made, because most people vote for their party’s candidate. And as a last insult to our injury, the states have their own taxpayers paying to help take away your choice. We’ve even created a phrase I hear almost every election: We’re told we have to choose the lesser of two evils. Of course it’s never mentioned that the two evils were chosen by the political parties.

Publicly Funded

Since these primaries are run by the state, the taxpayer gets to pay the bill. Not just the printing of the ballot, but insuring they are distributed to each and every county. Then, of course, the county has to pay to make sure the ballots are available at each polling station. Then there’s the manpower needed at those polling stations, a cost that is ever increasing as election day has been expanded to election week, and even election month. Then there are the ballot collection, counting, and reporting. And let’s not forget what happens if there’s a run-off or a problem? Paid for by the good ole’ We the People, run by the state, and controlled by the political parties. All so that on the actual Election Day you are psychologically directed to choose only from those candidates the political parties have approved.

What most people don’t seem to realize is that your state’s political parties are non-profit corporations. Which means that primaries are actually elections for private organizations, the political parties. So not only are you the taxpayer paying for elections for private organizations, your own state laws are used to allow those private organizations to limit who you see on the ballot. How corrupt does that sound to you?

Is There a Solution?

I’ve seen several people make suggestions to solve this problem, and a few states have tried. Some states have an “Open Primary”, where an individual can vote in a primary without being affiliated with that party. Some states have started using “Ranked Choice Voting”, where people choose up to three candidates, followed by a rather complicated process that is used to weed the selection down to one. Others use a “Jungle Primary”, also known as a “Cajun Primary” or “Louisiana Majority Vote” system, where all candidates are on the ballot. If an individual gets a majority of the vote for an office, they win. If not, then there is a run-off election between the top two vote getters. This has the advantage of getting rid of the primary, but often requires a later run-off vote.

Personally, I like the idea of just having all of the candidates eligible and running for an office on the ballot, like we see in both Ranked Choice Voting and Jungle Primaries. Of the two, I much prefer the latter. Although it does frequently delay the decision, it doesn’t have the complicated “whittle down” process of Ranked Choice, and I think the cost in both time and money for a Louisiana Majority Vote are offset by the improved ability to accurately represent the will of the voters. Maybe there’s another idea or an even better system. If there is, I’m not aware of it, but would be interested. So if you have what you think is a better idea, please let me know.

Conclusion

It seems this idea of the political primary or its variants, have become so much a part of our election process, most people don’t even realize it’s a relatively new thing. While I have no problem with political parties choosing their preferred candidate, I am opposed to them doing all they can to limit my choices to those candidates.

Imagine walking into a voting booth, and the ballot listing all the names of the people who have qualified to run for office? There still needs to be some vetting process for candidates, some paperwork to request access to the ballot, and probably some process to insure there is enough support to warrant being included. Beyond that, let all comers be on the ballot and let the people decide. I know what I’m saying sounds radical, but really it’s just a return to how things used to be. I’m not saying we should go back to voice voting, but shouldn’t We the People be the deciders of who we can vote for, rather than the political parties? Don’t we denigrate countries like Iran and Venezuela where political actors limit the choices on the ballot? I’m not naive enough to think such a change could happen in the current spirit of revenge between our two largest political parties. For everyone who wished for a chance to vote for a third-party candidate though, shouldn’t we be working to make it more possible, rather than following those fighting tribes further down the road to the ruin of our public liberty?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 9, 2024

• Does the federal government have the legal authority to regulate anything it wants?
• The Department of Energy has decided they can regulate your dishwasher and washing machines.
• In the case of Louisiana, et. al. v. U.S. Department of Energy, it appears the DOE may have bitten off more than it can chew.

Have you noticed how often the government of the United States decides how you should live your life? It seems everything from food and drugs to the lightbulbs in your home are regulated by Uncle Sam. And whenever some bureaucrat deems it necessary, they simply roll out another “rule” or “regulation” to clamp down on the American people. It seems though, that one of those agencies may have bitten off more than they could chew, at least according to the Fifth Circuit Court of Appeals. In the case Louisiana, et. al. v. U.S. Department of Energy the court decided that one of the DOE’s rules was illegal, but was it unconstitutional?

Regulatory State

When Congress decides it wants to exercise a power not delegated to it by the Constitution, it usually reaches for the General Welfare Clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

U.S. Constitution, Article I, Section 8, Clause 1

They seem to forget the fact that this clause empowers Congress to collect taxes, not to regulate. They also seem to ignore that it only allows Congress to collect taxes for the general welfare of the United States, the very same proper noun used in the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Does this clause of the Constitution allow Congress to do whatever it thinks would be good for America? Not according to James Madison.

If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

Bounty Payments for Cod Fisheries, [6 February] 1792

Looks like Mr. Madison was correct. Once Congress believed they could apply money indefinitely to the general welfare, they took over everything, including regulating dishwashers and washing machines.

They’re Coming for Your Dishwashers

In 2022, the Department of Energy tightened the regulatory regime surrounding America’s dishwashers and laundry machines. Petitioners sued. The Department’s actions were arbitrary and capricious. So we grant the petition and remand to the Department.

Louisiana, et. al. v. U.S. Department of Energy

What led up to the 2022 decision by the Department of Energy to tighten regulations for dishwashers and laundry machines? Why did several states including Louisiana, Alabama, Arkansas, Kentucky, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Texas and Utah file suit?

In 2018, the Competitive Enterprise Institute (“CEI”) submitted a petition for rule making to the Department of Energy (“DOE” or the “Department”). … According to CEI, the Department’s burdensome energy regulations made dishwashers incapable of, well, washing dishes. CEI asked the Department to define a new class of dishwashers under the Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163, 89 Stat. 871, codified (as amended) at 42 U.S.C. §§ 6201 et seq. (“EPCA”). CEI proposed that the new class should be comprised of dishwashers with a normal cycle duration of under one hour. … CEI anticipated that the new class might offer better performance than currently available machines in part because it would not need to comply with the energy and water restrictions otherwise applicable to consumer dishwashers today.

Louisiana, et. al. v. U.S. Department of Energy

Apparently the Competitive Enterprise Institute thought of a way to get around the DOEs restrictions on energy and water usage. The petitioned the DOE to make a rule that would create a new class of dishwasher that would not need to comply with DOE’s energy and water restrictions.

DOE responded favorably to CEI’s petition. It published a Notice of Proposed Rulemaking (“NPRM”) under the Administrative Procedure Act (“APA”). … The NPRM proposed the new dishwasher class that CEI had requested. … In October 2020, the DOE adopted a final rule defining the class as “standard residential dishwashers with a cycle time for the normal cycle of one hour or less from washing through drying.” … (the “2020 Dishwasher Rule”).

Louisiana, et. al. v. U.S. Department of Energy

The DOE adopted the rule proposed by CEI. Apparently, DOE liked the rule so much, they created another rule for laundry machines, or what most of us call washing machines.

On its own initiative, the Department then decided to take analogous action on laundry machines. (“2020 Laundry NPRM”). … DOE explained that both of its 2020 rules “re-affirmed the Department’s recognition of cycle time as a valuable consumer utility.”

Louisiana, et. al. v. U.S. Department of Energy

Does the DOE thinks it’s valuable to consumers to minimize cycle time in such appliances? Apparently the DOE is more interested in how long an appliance runs than how well. So far so good, until the Biden Administration takes office.

On the day of his inauguration, President Biden issued an Executive Order directing DOE and other agencies to reconsider certain rules, including the 2020 Dishwasher Rule and the 2020 Laundry Rule. … A new final rule, which we call the Repeal Rule, was issued in January 2022. It revoked both the 2020 Dishwasher and the 2020 Laundry Rules.

Louisiana, et. al. v. U.S. Department of Energy

In come the politicians, apparently overriding the rules of the bureaucrats, this time to the detriment of the people who actually purchase and use dishwashers and washing machines. Then a group of states decide to stand up and, if not come to the rescue, at least push back on the repeal of these new rules.

A group of States, led by Louisiana, petitioned our court for review of the Repeal Rule

Louisiana, et. al. v. U.S. Department of Energy

What was the basis of the state’s lawsuit? What was the Fifth Circuit asked to decide?

Now the merits. While the States make various contentions, we need only consider one: that the Repeal Rule is arbitrary and capricious.

Louisiana, et. al. v. U.S. Department of Energy

Arbitrary and Capricious

Part of the law Congress passed to regulate how agencies create rules and regulations is known as the Administrative Procedures Act or APA.

Section 706 of the APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).

Louisiana, et. al. v. U.S. Department of Energy

If a court finds that an agency acts in an arbitrary or capricious way, or beyond their legal authority, it must hold those actions as unlawful, therefore deciding for the plaintiff who sued.

The Repeal Rule falls short of these standards. We (1) discuss the Department’s inadequate consideration of important aspects of the energy conservation program. Then we (2) discuss the Repeal Rule’s reliance on purported legal error.

Louisiana, et. al. v. U.S. Department of Energy

Things aren’t looking so good for the Department of Energy at this point.

The 2022 DOE was required to reasonably consider the relevant issues and reasonably explain its decisions in the Repeal Rule. … It failed to do so. Specifically, it (a) is unclear that DOE has statutory authority to regulate water use in dishwashers and clothes washers. But even if DOE has water-usage authority over the relevant appliances, the Department (b) failed to adequately consider the negative consequences of the Repeal Rule, including the substitution effects of energy-and-water-wasting rewashing, prewashing, and handwashing. And in all events, the 2022 DOE (c) failed to adequately consider the impact of the energy conservation program on “performance characteristics.”

Louisiana, et. al. v. U.S. Department of Energy

Basically, the court found that the DOE tripped over itself in two primary areas; their legal powers and the impact of the Repeal Rule. Let’s look at these individually.

Statutory Authority

In promulgating the Repeal Rule, DOE stated that its energy conservation program must promote “water conservation” and regulate “water use.” See 87 Fed. Reg. at 2684–85. But it is unclear how or why DOE thinks it has any statutory authority to regulate “water use” in dishwashers and washing machines.

Louisiana, et. al. v. U.S. Department of Energy

First, there is the question of whether or not the Energy Policy and Conservation Act of 1975 delegates to the Department of Energy the authority to regulate water use.

The EPCA allows DOE to regulate energy use by some products and water use by others. …

The EPCA does not appear to contemplate overlap between the products subject to “energy” regulation and those subject to “water” regulation. Energy first. The EPCA defines “energy use” as “the quantity of energy directly consumed by a consumer product at point of use.” … And it defines “energy” as “electricity[] or fossil fuels” or “other fuels.” … Dishwashers and laundry appliances obviously use “energy” as the EPCA defines that term. So it makes sense that DOE can regulate the amount of energy used by those appliances.

But the statute defines “water use” as “the quantity of water flowing through a shower head, faucet, water closet, or urinal at point of use.” … And the four explicitly enumerated water products do not use “energy” as that term is defined in the EPCA. That explains why Congress said “energy use, or, . . . water use.”

Louisiana, et. al. v. U.S. Department of Energy

So first, the court found that the Department of Energy did not have the statutory authority to regulate water use in these appliances under the EPCA. (See the Constitutionality of the DOE for more on this.) What about the second problem the court found?

Impact

Even if DOE could consider dishwashers’ and clothes washers’ “efficiency” in both “energy use” and “water use,” the 2020 Rules likely promoted greater efficiency in both categories than the Repeal Rule. Assuming both energy conservation metrics are on the table, the States argue, and DOE does not appear to dispute, that one important aspect of that problem is whether appliance regulations actually reduce energy and water consumption. Yet the administrative record contains ample evidence that DOE’s efficiency standards likely do the opposite: They make Americans use more energy and more water for the simple reason that purportedly “energy efficient” appliances do not work. … So Americans who want clean dishes or clothes may use more energy and more water to preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.

Louisiana, et. al. v. U.S. Department of Energy

Strike two for the Department of Energy. It appears that not only has the DOE gone beyond its statutory powers, but in the name of being energy efficient, their latest rules actually promote the use of more energy and water to do the same job.

Court Decision

According to the court, since the Repeal Rule was outside of the DOE’s statutory authority and did not fulfill the requirements of the policy, that policy is arbitrary and capricious, and therefore did not comply with the Administrative Procedures Act.

In sum, it is unclear that DOE has any statutory authority to regulate water use in dishwashers and clothes washers. But even assuming the Department has that authority, the Repeal Rule is arbitrary and capricious for two principal reasons. (1) It failed to adequately consider appliance performance, substitution effects, and the ample record evidence that DOE’s conservation standards are causing Americans to use more energy and water rather than less. (2) It rested instead on DOE’s view that the 2020 Rules were legally “invalid”—but even if true, that does not excuse DOE from considering other remedies short of repealing the 2020 Rules in toto.

Louisiana, et. al. v. U.S. Department of Energy

While the striking down of the Repeal Rule is a good thing, there’s one very important point the court missed.

Constitutionality of the DOE

While the court looked at the statutory power of the Department of Energy, they never looked at its constitutionality. Congress stated the purpose of the Energy Policy and Conservation Act of 1975 within the legislation

The purposes of this chapter are-

(1) to grant specific authority to the President to fulfill obligations of the United States under the international energy program;
(2) to provide for the creation of a Strategic Petroleum Reserve capable of reducing the impact of severe energy supply interruptions;
(3) Repealed. Pub. L. 106–469, title I, §102(2), Nov. 9, 2000, 114 Stat. 2029 ;
(4) to conserve energy supplies through energy conservation programs, and, where necessary, the regulation of certain energy uses;
(5) to provide for improved energy efficiency of motor vehicles, major appliances, and certain other consumer products;
(6) Repealed. Pub. L. 106–469, title I, §102(2), Nov. 9, 2000, 114 Stat. 2029 ;
(7) to provide a means for verification of energy data to assure the reliability of energy data; and
(8) to conserve water by improving the water efficiency of certain plumbing products and appliances.

42 USC §6201

Look all you want, but you will not find the power to conserve energy supplies, improve energy efficiency, or conserve water as a power delegated to the United States. You may be thinking, but what about the international energy program, that was probably done via treaty, which makes it the supreme law of the land, right?

No. The Supremacy Clause states:

This 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;

U.S. Constitution, Article VI, Clause 2

Only treaties made under the Authority of the United States are the supreme law of the land. The United States does not have the authority regulate energy or water supplies. Therefore, any treaty that may have been signed is not within the authority of the United States, not the supreme law of the land, and as an unconstitutional act, void.

In fact, since regulating energy is not a power delegated to the United States, the legislation that created the Department of Energy is an unconstitutional act, and therefore also void.

Conclusion

So while the court came to mostly the right conclusion, their failure to consider the constitutionality of the Department of Energy leave the American people with the false belief that the Department of Energy is legitimate and that their regulations have the force of law. This in spite of previous court decisions to the contrary.

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County :: 118 U.S. 425 (1886)

Rather than dealing with the unconstitutionality of the Repeal Rule, they merely turned it back over to the illegal agency that created it in the first place.

For the foregoing reasons, the petition for review is GRANTED. And the matter is REMANDED to DOE for further proceedings consistent with this opinion.

Louisiana, et. al. v. U.S. Department of Energy

This is why it’s so important for you to read and understand the Constitution for yourself. Not only so you can recognize these unconstitutional acts, but so you can prepare yourself to defend and assert your rights, including the right to have the supreme law of the land faithfully enforced.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 6, 2024

• With all of the talk about Donald Trump and the Fourteenth Amendment, I’ve seen few actually dive deep into the constitutionality of the suits.
• Most of the statements come from a fundamental misunderstanding of the Fourteenth Amendment.
• So who really committed insurrection?

Although I’ve talked about the recent attempts to keep Donald Trump off the 2024 ballot on the radio program, I realized I haven’t taken the time to do an in-depth article here. I apologize for taking so long to broach this extremely important topic in this venue.

Unless you’ve been hiding from everything politics in the United States, you are aware that there are actors in several states that have sued in their state courts to disqualify Donald Trump from being on their states primary election ballot for President of the United States. As of this writing, in only two states, Colorado and Maine, have those actors found some measure of success. While this case will undoubtably find its way to the Supreme Court, this truly is a state issue, even though it has national importance.

We begin with the basis of the multiple claims that Donald Trump is ineligible to hold federal office under Section 3 of the Fourteenth Amendment to the Constitution of the United States. Most of these suits have been filed by a single person, John Anthony Castro, a candidate for the republican nomination for President with an extremely small chance of success. To date, Mr. Castro has filed suites in Arizona, Idaho, Kansas, Montana, Nevada, New Hampshire, North, Carolina, South Carolina, Utah, and West Virginia. Interestingly enough, it does not appear that Mr. Castro has filed a suit in his home state of Texas. In addition, the group Citizens for Responsibility and Ethics in Washington has filed suit in Colorado, and Robert Davis has filed suit in Michigan.

Meanwhile, the Secretary of State of the State of Maine has determined, under state law, that Donald Trump is ineligible to be on the ballot because of his participation in events at the capitol on January 6th.

While there are subtle differences between these suits, they are all based in a claim that Donald Trump is ineligible to hold federal office for participating in an insurrection on January 6th, 2021.

The Fourteenth Amendment

When most people think of the Fourteenth Amendment, they generally focus on the first section. That covers things like citizenship, due process, and equal protection of the law, while the argument being made in the states comes out of Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

U.S. Constitution, Amendment XIV, Section 3

While the most basic question that should be asked is did Donald Trump incite, assist, or engage in a rising or rebellion against the government of the United States, there are other things that need to be considered as well.

Standing

I’m sure some of you are wondering, does Mr. Castro, a resident of Texas, have standing to bring suit in these other states. The short answer is yes. As a candidate for the republican nomination for the Presidential election, it’s expected that Mr. Castro would logically compete for the votes in all 50 states. Therefore, if Mr. Trump is ineligible for office in any, it would increase what little chance Mr. Castro has of winning delegates in that state.

Civil Office

One of the arguments being made is that Donald Trump is not subject to Section 3 because the office of President is not listed.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President,

U.S. Constitution, Amendment XIV, Section 3

The Fourteenth Amendment lists the three offices elected by the people of the United States, Senator, Representative, and elector for President and Vice-President. Since neither the President nor the Vice-President are elected by the people, they are not included in this part of the list. However, that’s not the entire list.

No person … hold any office, civil or military, under the United States

U.S. Constitution, Amendment XIV, Section 3

This is where things get a little tricky. Some people claim that the President is not a civil officer,

By this term are included all officers of the United States who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments; of the government, with the exception of officers of the army and navy.

Civil Officer – The Free Legal Dictionary

Therefore the President is not subject to Section 3. But that’s not what the Constitution says.

No person … hold any office, civil or military, under the United States

U.S. Constitution, Amendment XIV, Section 3

It seems difficult to say that the office of the President is not an office under the United States.

An office is a right to exercise a public function or employment, and to take the fees and emoluments belonging to it,.

Office – The Free Legal Dictionary

Previously Taken an Oath

There is one other area where I see a lot of misunderstanding when it comes to Section 3 of the Fourteenth Amendment, and that is the need to have perviously taken an oath.

who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States,

U.S. Constitution, Amendment XIV, Section 3

Just because someone has participated in an insurrection or rebellion does not disqualify them from holding office under the Fourteenth Amendment. They must have previously taken an oath to support the Constitution of the United States as a member of Congress, an officer of the United States, or as a member of the legislature or officer of any state. I don’t know of anyone claiming the Donald Trump did not take an oath to support the Constitution of the United States when he assumed the office of President, but it does shoot holes in the claim that the Presidency is not an office of the United States.

Insurrection

Which leads us to the crux of the matter. Did Mr. Trump engage in insurrection or rebellion?

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.  

U.S. Constitution, Amendment XIV, Section 3

This entire argument rests on the claim that the events of January 6th, 2021 was an insurrection. That Donald Trump helped to organize the event, and that when he said,

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.

Donald Trump Speech “Save America” Rally Transcript January 6

he really meant for people to overturn the government of the United States. After all, that is what an insurrection is.

A rising or rebellion of citizens against their government, usually manifested by acts of violence.

Under federal law, it is a crime to incite, assist, or engage in such conduct against the United States.

Insurrection – The Free Legal Dictionary

Since Donald Trump spoke to the group that would walk from the Ellipse to the Capitol, it would be difficult to say that he did not engage in the demonstration. And though he did acknowledge that people would be walking to the Capitol, he neither encouraged them to do so, nor to act in an illegal fashion. Acknowledging that people would be peacefully and patriotically assembling to petition their representatives for a redress of the grievances they perceived, was in no way an attempt to rebel against their government. Since at least five (5) states violated the Constitution by appointing electors for President in a manner other than the one determined by their state’s legislature, they were asking their members of Congress to enforce the Constitution which created the government of the United States, even though the governments of those states refused to do so.

Fundamental Misunderstanding

The cases against Donald Trump are fundamentally based on a misunderstanding. Granted, that misunderstanding has been promulgated and promoted by supporters of a political agenda, it’s a misunderstanding nonetheless: That the government of the United States is sovereign and therefore above the law.

The government of the United States did not create the United States. Both the United States and its government are a creation of a compact between the states: The Constitution. No action by the United States is the supreme law of the land unless it is founded on the Constitution of the United States.

This 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;

U.S. Constitution, Article VI, Clause 2

To claim that the demonstration on January 6th, 2021 was an insurrection requires the assumption that political parties are the authority in the United States. At least according to Noah Webster.

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state.

Insurrection – Webster’s 1828 Dictionary

For a rising in the United States to be insurrection, it must be against a legitimate civil or political power. As I’ve already shown, at least five states were exercising an illegitimate power to appoint electors for President, since the manner of choosing them was established by the judicial or executive branch of the state government, not its legislature. Furthermore, the vast majority of the crowd was not looking to overturn the Congress or even the Presidency, but what was evidently the flawed and corrupt elections in several of the states. Even those who were convinced that Donald Trump had won and wanted him installed as President were not committing insurrection, since they were not trying to remove someone from office, but questioning the process by which he would be placed in it. How can the United States call itself a republic if the people in whom that sovereign power comes are not allowed to question the elections of their representatives? How can a calling for following the supreme law of the land be an insurrection against that law and the government it created?

Add to all this the obvious political biases in everything from the reporting on the event to the claims made by the political actors. After all, when thousands shutdown highways, burned effigies, and stated that “Donald Trump is not my President”, no one claimed they were committing insurrection. When violent demonstrations rampaged through Washington, D.C. in 2020, including the setting of fires across the street from the White House, those who call for such demonstrations were not accused of insurrection.

Who Has Incited Insurrection?

While the Fourteenth Amendment does not require someone to be convicted of insurrection, it does claim someone must have engaged in such a thing. In the United States we are supposed to have due process. That includes the assumption of innocence and the government bearing the burden of proof. Yet to date the only “proof” provided in support of this claim of insurrection have been misquotes, misrepresentation, and outright lies about the action of the majority of the demonstrators. Yes, some did force their way thought a barrier, but that is trespassing not insurrection. There is video evidence that the majority of those who entered the capitol did so peacefully and with the consent of the Capitol Police officers there at the time. Congress was not forcibly removed, but evacuated due to an abundance of caution. In fact, Congress returned later that day to observe the rest of the counting of the votes by the electors for president.

So who has engaged in insurrection? While those who have harassed the people for the sin of being in Washington, D.C. on January 5th through 7th have committed crimes, insurrection is not one of them. Those agents of the federal government who have used abusive force, including heavily armed teams with overwhelming firepower to take someone into custody for non-violent and misdemeanor allegations, have committed crimes but not insurrection. Even those who are in the media, or who is or is not in the office of President doesn’t make the government. While some of the actors in this drama we’ve been reviewing may come close, insurrection must be a rejection of the government, not of those in office. Otherwise the United States is just another banana republic, run by emotions rather than the rule of law. George Washington warned us what would happen if we allow our political partisanship to rule our emotions:

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.

Washington’s Farewell Address 1796

If we continue down this road, then insurrection will no longer be political hyperbole used to promote an agenda. It will lead to something much, much worse.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection.

Washington’s Farewell Address 1796

Is that the future you want for your children?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 2, 2024

• When Congress is ambiguous, who decides what they mean?
• Who decided that when Congress is silent, the executive agency decides for them?
• Is this Chevron Deference constitutional?

For decades, Congress has been turning over more and more lawmaking power to the Executive Branch. Frequently this is done by legislation giving the head of some agency or department the power to establish rules which have the force of law. What happens when the legislation doesn’t explicitly say that such-and-such department has the power to make a certain rule? To deal with this, courts have come up with something called “Chevron Deference”. While the case Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce deals with who pays the salaries of federal observers on fishing boards, a more fundamental questioning of the court’s deference to government agencies’ interpretation of law is the cornerstone of the petitioner’s arguments.

Let’s start off with a discussion of what is commonly called “Chevron”. This precedent comes from the 1984 case Chevron U.S.A., Inc. v NRDC.

Chevron Deference

The primary holding of the Chevron case is:

A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)

The idea seems simple enough. Government agencies must follow any clear legislative statements when they apply a law, However, if there is an ambiguous situation, the courts will defer to the interpretation of the agency as long as it’s reasonable. After all, you cannot expect any man-made organization to be able to predict every possible permutation of every situation. So it makes sense, if something in a law is ambiguous (capable of being understood in two or more possible senses or ways), somebody has to decide. And technically, there are three possibilities as to who that might be. The courts, the agency, or Congress. Since 1984 the courts have deferred to the agency to make such decisions. As is often the case though, give an agency an inch and they’ll take a mile. Such is true in Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce.

The Petitioner

The petitioners, Loper Bright Enterprises, et. al., were represented at the Supreme Court by Paul D. Clement. He starts his argument with the specifics of the case.

Commercial fishing is hard. Space onboard vehicle — vessels is tight, and margins are tighter still. Therefore, for the — for the — for my clients, having to carry federal observers on board is a burden, but having to pay their salaries is a crippling blow.

Congress recognized as much by strictly limiting the circumstances in which domestic fishing vessels could be saddled with monitoring costs and capping them at 2 to 3 percent of the value of the catch. But the agency here showed no such restraint, requiring monitoring on 50 percent of the trips at a cost of up to 20 percent of their annual returns. Nonetheless, the court below deferred to the agency because it viewed the statute as silent on the “who pays” question.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Congress established by law that domestic fishing vessels had to be monitored to insure they follow the law, but they didn’t specifically say who was to pay for the monitoring. The Department of Commerce decided that since Congress didn’t say they couldn’t make the fishing vessels pay the monitor’s salaries, they had the statutory authority to do so. As you would expect, the petitioners disagreed.

There is no justification for giving the tie to the government or conjuring agency authority from silence. Both the APA and constitutional avoidance principles call for de novo review, asking only what’s the best reading of the statute. Asking, instead, is the statute ambiguous is fundamentally misguided. The whole point of statutory construction is to bring clarity, not to identify ambiguity.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Both the Administrative Procedures Act (APA) and the concept of constitutional avoidance (federal courts should avoid a constitution based decision when a statutory or regulatory one is available) state that the court review the case de novo, or anew, to determine the best understanding of the law. Though that is exactly what Chevron Deference by-passes.

The government defends this practice not as the best reading of the APA but by invoking stare decisis. That is doubly problematic. First, at issue here is only Chevron’s methodology, which is entitled to reduced stare decisis effect. We have no beef with Chevron’s Clean Air Act holding, and we could not take issue with its APA holding because it failed to mention that statute. But, second, all the traditional stare decisis factors point in favor of overruling Chevron’s methodology. The doctrine is unworkable as its critical threshold question of ambiguity is hopelessly ambiguous. It is also a — a reliance-destroying doctrine because it facilitates agency flip-flopping. So the reality here is the Chevron two-step has to go and should be replaced with only one question: What is the best reading of the statute?

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

The Defense

Representing the government is Solicitor General Elizabeth B. Prelogar. She opened her defense with.

Throughout this litigation and at times this morning, Petitioners have sought to characterize this case as presenting a fundamental question of the separation of powers and a test of Article III: Will courts continue to say what the law is?

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

While that belief is commonly held, the purpose of Article III courts is not to arbitrarily say what the law is, but to decide controversies based on those laws. Since the specifics of those laws need to be considered when applied to the specifics of any case, there is obviously some interpretation that goes along with the role of a judge. Gen. Prelogar then sets up a straw-man for the court.

Imagine, for example, if the statute said, in Chevron, “stationary source” as defined by the Administrator. I take both Petitioners to give that up and recognize that is a delegation and courts should respect that.

The role of the court in that circumstance is to make sure that the agency has followed the proper procedures and stayed what — within whatever outer bounds Congress itself has set. And all of that complies with the Constitution, of course, because Congress has Article I authority to delegate gap-filling authority to agencies, and the executive has core Article II authority to fill in those gaps.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

First Gen. Prelogar attempts to redirect the question at hand. Petitioners are questioning the deference to the agency when Congress is silent, not when they have explicitly delegated authority to an agency. This is based on two fundamental errors by Gen. Prelogar. First, nothing in the Constitution delegates to Congress the authority to delegate to another the power to “fill in the gaps” in their legislation. Second, neither does the Constitution delegate to the executive branch the authority to fill in those gaps.

Still, there is a more fundamental constitutional flaw in Gen. Prelogar’s argument.

If Congress can expressly vest an agency with authority to interpret the law through an express delegation, then it can do the same thing implicitly, especially in a world where Congress has to provide the agency with the express authority to carry the statute into operation with the force and effect of law.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Gen. Prelogar’s straw-man doesn’t show Congress vesting authority to interpret the law, but to apply the law. In her argument, Congress gives the “Administrator” authority to define the term “stationary source”, not to interpret the law whichever way they want. To make matters worse, Gen. Prelogar claims that when Congress does not tell an agency they can do something, that means they have the power to do it. This not only violates the plain language of the Constitution, but places the executive agencies above the very Congress that created it. After all, if any agency can interpret for itself what the law means, their word becomes law. Only after those harmed by such totalitarian rule have spent years and untold dollars pursuing a court case, can they expect any sort of redress of grievance for those agencies’ actions, and then only if the court finds the agencies’ interpretation “unreasonable”. A very fickle standard indeed. Should Congress draft new legislation to restore its intent to the law, we once again would have a long and fraught process, one that does not guarantee that the original intent of the law is applied.

Questions From the Justices

After each attorney presented their case, the justices had a chance to ask them questions.

JUSTICE SOTOMAYOR: …

It seems like most people agree, if the court — if the statute uses “reasonable,” that Congress is delegating the definition of “reasonable” to the agency, and the agency is deciding what is reasonable within some outer limit either set within the statute or — or within the law.

But the point is that I don’t — it’s great rhetoric, Mr. Clement, but we do delegate, we have recognized delegations to agencies from the beginning of the founding of interpretation. And so I — I — I — I’m at a loss to understand where the argument comes from.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Here we see Justice Sotomayor using the same sleight of hand that Gen. Prelogar did. Petitioners are not questioning the agencies definition of “reasonableness”, but their actions without ANY statutory language. Remember, the law did not give discretion to the Dept. of Commerce when it comes to who pays the salary for monitors, it was silent on the subject.

JUSTICE KAGAN: Well, because you have no other option. I mean, what — what Chevron is is it’s a recognition that in certain cases you apply all those tools and the conclusion you come up with is Congress hasn’t spoken to this issue. And if you had no other option, you’re a court, there’s a case before you, you try as hard as you can, even though you know you’re basically on your own.

But, with — when Chevron comes in, when there is an agency, what Chevron says is now there are two possible decision-makers, there’s the agency and there’s the court, and what we think is that Congress would have preferred the agency to resolve this question when congressional direction has — cannot be found because of the agency’s expertise, because of the agency’s experience, because the agency understands how this question fits within the statutory scheme. So it’s not a question of the court couldn’t do it. It’s a question of, once congressional direction can’t be found, who does Congress want to do it.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

It’s not the role of the agencies or the courts to speak for Congress. If Congress did not speak, it did not speak. It’s then up to Congress to decide if it wishes to speak on the matter. What Justice Kagan wants is to subvert the separation of powers and to assume the role of medium in order to divine what Congress wants. Even Congress doesn’t think that’s a good idea.

1. CLEMENT: So, Justice Kagan, if we’re going to talk about what Congress wants, we probably should at least avert to the fact that we do have an amicus brief in this case from the House in its institutional capacity, and it doesn’t want Chevron. It’s on our side of the case, …

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

When the actor you’re claiming to fill in the gaps for, or at least part of that actor, is telling you that you’re wrong, that should pretty much seal the deal. Not for Justice Kagan.

JUSTICE KAGAN: If it doesn’t want Chevron, it has total control over Chevron. It can reverse Chevron tomorrow with respect to any particular statute and with respect to statutes generally, and it hasn’t. For 40 years, it has acceded to Chevron. Except in super-rare cases, it has basically said this is the background rule, it gives us a stable default rule from which to write statutes, and we’ve accepted that.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Oh contraire, Ms. Kagan. Chevron is not the creation of Congress, but of the very court you currently sit on. Yes, Congress could have passed a law that more tightly defines who decides ambiguities, and probably should have, but that would certainly take longer than tomorrow. And just what would keep the courts from simply reinterpreting Congress’ intent in the future?

1. CLEMENT:…

[F]undamentally even more problematic, is if you get back to that fundamental premise of Chevron that when there’s silence or ambiguity, we know the agency wanted to delegate to the agency.

That is just fictional, and it’s fictional in a particular way, which is it assumes that ambiguity is always a delegation. But ambiguity is not always a delegation. And more often, what ambiguity is, I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous, that’s how we’re going to get over the bicameralism and presentment hurdle, and then we’ll give it to my friends in the agency and they’ll take it from here.

And that ends up with a phenomenon where we have major problems in society that aren’t being solved because, instead of actually doing the hard work of legislation where you have to compromise with the other side at the risk of maybe drawing a primary challenger, you rely on an executive branch friend to do what you want. And it’s not hypothetical.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Again, Mr. Clement brings us back to the point. Because of Congressional laziness, even dereliction of duty, they have given up the work of actually writing complete laws, leaving the executive agencies to “fill in the gaps” in their legislation. While that may be the fundamental intent in some cases, it is a violation of the Constitution of the United States. By deferring all decisions to the agencies, the courts too have violated their oaths to support the Constitution.

JUSTICE THOMAS: How do you — how do we discern statutory — delegation from statutory silence?

GENERAL PRELOGAR: So, Justice Thomas, I think that it would be wrong to suggest that you can neatly categorize cases as those involving silence and those involving ambiguity. And — and the reason for that — I recognize that — that Chevron itself used both of those terms, but I think that the Court was just trying to be comprehensive about those kinds of circumstance where Congress hasn’t itself directly resolved an issue.

Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce – Oral Arguments

Did you catch that switch-a-roo? Justice Thomas ask Gen. Prelogar how to tell the difference between delegation and silence, and she switched it to silence and ambiguity.

Justice Thomas’ question has a very simple answer. Delegation is a positive statement “as defined by the Administrator”. Silence is the absence of a statement.

Conclusion

The entire issue of both this case and Chevron comes down to a single question: Is governmental power positively or negatively defined? Does a government actor have to have a positive statement that they can do something, or are they free to act unless there is a specific prohibition? When it comes to the federal government the answer should be clear:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

The United States only has the powers delegated to it by the Constitution. Since, as Article I, Section 1 of the Constitution states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

U.S. Constitution, Article I, Section 1

All power for making law (legislative powers) is vested in Congress. They do not have the power to delegate lawmaking power to executive agencies. And since Article III only delegates to the courts judicial power and the power to decide controversies, they do not have the power to “fill gaps” as Gen. Prelogar claims.

Chevron appears to have been an attempt to “keep things going” when Congress was silent or ambiguous on a specific issue. If Congress leaves gaps in their legislation, it’s up to Congress, the representatives of the people and the states, to fill them in. It’s most certainly not within the powers delegated to the executive or judicial branches. We’ll have to wait and see if a majority of the justices on the court recognize the usurpation of powers Chevron Deference has become.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 16, 2024

• What happens when people use the judicial system not to redress a grievance, but to attack others?
• Does a person have standing to sue, even thou they suffered no harmed?
• What are the costs to others when people engage in such “law fare”?

One of the most common ways for an American to seek a redress for some grievance is to file a law suit. This has made the United States a very litigious society. I was not able to determine the number of lawsuits filed, but in 2023 there were more attorneys in the United States (1.33 million) than doctors (1.08 million). As you might imagine, it’s unlikely that all of these lawsuits are legitimate.

Take for examples the case of Acheson Hotels, LLC v. Laufer. In this case, Acheson Hotels claims that Deborah Laufer filed a lawsuit against them not because she was harmed by their hotel, but because she is an activist using the Americans with Disability Act to harass companies who do not advertise whether or not they have handicapped accessible rooms. While the Supreme Court found that the case was moot, both the facts of the case and the courts decision points to what appears to be a case of Ms. Laufer using lawsuits for both revenge and profit.

The fundamental question the Supreme Court was asked to decide in Acheson Hotels, LLC v. Laufer was standing. Did Ms. Laufer have standing to sue Acheson Hotels? The Free Legal Dictionary defines standing as:

Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.

A person cannot sue simply because they see something wrong; they have to have a personal stake in the issue at hand. Which brings us to the opinion in this case.

Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled. As the sheer number of lawsuits suggests, she does not focus her efforts on hotels where she has any thought of staying, much less booking a room. Instead, Laufer systematically searches the web to find hotels that fail to provide accessibility information and sues to force compliance with the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. §12101. Ordinarily, the hotels settle her claims and pay her attorney’s fees, but some have resisted, arguing that Laufer is not injured by the absence of information about rooms she has no plans to reserve. Only plaintiffs who allege a concrete injury have standing to sue in federal court. Laufer, these hotels have argued, is suing to enforce the law rather than to remedy her own harms.

It appears rather obvious that Ms. Laufer had no intention to book rooms at most of these hotels, or any at all. As Justice Barrett, who wrote the opinion, noted, it seems Ms. Laufer was looking to force hotels to comply with the Americans with Disabilities Act. In other words, Ms. Laufer was acting as a federal vigilante, and quite a prolific one at that.

Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it. We took this case from the First Circuit to resolve the split.

In fact, Ms. Laufer has brought so many suits, in so many jurisdictions, that she has created her own circuit split regarding her standing. The Supreme Court took the case in order to resolve said split.

After we granted review, the case took an unusual turn. In July, the United States District Court for the District of Maryland suspended Laufer’s lawyer, Tristan Gillespie, from the practice of law for defrauding hotels by lying in fee petitions and during settlement negotiations. … It based the suspension on a report finding that Gillespie demanded $10,000 in attorney’s fees per case even though he used “boilerplate complaints.”…

Following these revelations, Laufer voluntarily dismissed her pending suits with prejudice, including her complaint against Acheson in the District of Maine. … She then filed a suggestion of mootness in this Court. At this point, Acheson had already filed its principal brief on the standing issue, and we deferred a decision on mootness until after oral argument.

It seems that Ms. Laufer’s original attorney, Tristan Gillespie, was “cooking the books” and defrauding the companies that agreed to settle rather than go through the time and expense of a trial. After Mr. Gillespie was suspended, Ms. Laufer dismissed her pending suits, including the one against Acheson, with prejudice, meaning she could not refile the case. She then suggested that, since she had no case pending against Acheson Hotels, the case they filed against her was moot, i.e., no longer meaningful. Since the plaintiffs had already filed their briefs, the court decided to hold their decision on mootness until they heard oral arguments.

Ms. Laufer did not say the court must dismiss for mootness, but that it could, if it wished, decide the jurisdictional issue at hand. Acheson Hotels on the other hand, stated it was quite important for the court to deal with the matter, since mooting the case would leave untold hotels exposed to potential malicious prosecution from Ms. Laufer and others. Justice Barrett stated that the court was sensitive to Acheson’s concerns, but had no proof that Laufer dropped her case to avoid their review. For that reason, the court decided:

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit with instructions to dismiss the case as moot.

In addition to the opinion of the court, Justices Thomas and Jackson offered concurring opinions.

Deborah Laufer has filed hundreds of lawsuits against hotels she has no intention of visiting, claiming that their websites lack accessibility information mandated by a federal regulation. At both parties’ request, this Court agreed to answer a question that has divided the Courts of Appeals: whether plaintiffs like Laufer have standing to bring these claims. The Court decides not to decide that question because, after briefing began, Laufer voluntarily dismissed her claim in the District Court. I would answer this important and recurring question, which, as all agree, we have the authority to do. And, I conclude that Laufer lacks standing.

Justice Thomas noted that the court agreed it has the authority to decide if Ms. Laufer, along with plaintiffs like her, have standing to sue. The court decided to punt on that question, simply because Ms. Laufer voluntarily dismissed her claim against Acheson Hotels. In Justice Thomas’ opinion, Ms. Laufer lacks the standing necessary to pursue such litigation.

The District Court concluded that Laufer lacked standing and dismissed her complaint. The First Circuit reversed, relying primarily on this Court’s holding in Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982), that a tester had standing to sue under the Fair Housing Act. …

Laufer lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights. Her claim alleges that Acheson Hotels violated the ADA by failing to include on its website the accessibility information that the Reservation Rule requires. Yet, the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the . . . services . . . of any place of public accommodation.” 42 U. S. C. §12182(a). In other words, the ADA prohibits only discrimination based on disability—it does not create a right to information.

While agreeing that the case was moot, Justice Jackson disagreed with the other part of the opinion of the court.

I agree with the Court that this case is moot and that it should be resolved on that basis. But the Court goes further, ordering vacatur of the judgment of the Court of Appeals under United States v. Munsingwear, Inc., 340 U. S. 36 (1950). … In my view, when mootness ends an appeal, the question of what to do with the lower court’s judgment, if anything, raises a separate issue that must be addressed separately.

In Justice Jackson’s view the question of vacating the opinion of the First Circuit Court of Appeals was not decided as a separate fact.

So what are we to make of all of this? Let me start with a question the court did not even consider: That the Americans with Disabilities Act is unconstitutional. The ADA states…

It is the purpose of this chapter-

• to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

Stopping discrimination against individuals with disabilities is not a power delegated to the United States by the Constitution, which is required for Congress to act under the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

While the constitutionality of the ADA was not a question before the court, the question of a Ms. Laufer’s right to sue under that law was. Since the stated purpose of the act was not to implement a power delegated to the United States, but instead “to invoke the sweep of congressional authority”, not only was it unnecessary and improper for Congress to pass it, but a violation of George H. W. Bush’s duty when he signed it, and a violation of the justices’ oaths of office to uphold it.

Don’t get me wrong, I do not believe people with disabilities should not be discriminated against. My wife and I regularly have to deal with disabled access to buildings both private and public, due to her disability. That does not mean the United States has the authority “to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.” Perhaps I’ll write an article one day on the problems with the ADA, but that is not the focus of this article.

Another item not considered, except possibly by Justice Thomas, is that Ms. Laufer’s attacks not only harmed the companies she has sued, but by taking up time in the judicial system, may have prevented legitimate suits from being heard in a timely manner, if at all. Not only are the owners of these hotels having to bear the cost of litigation, but the shear number of suits, combined with the obvious purpose of using them to enforce the law, may have enriched Ms. Laufer and her attorneys, but at the cost of justice to others.

By both mooting the case and vacating the First Circuit’s decision that Ms. Laufer had standing, the court does restore some sense of justice by restricting the use of malicious prosecution. However, by not deciding the question of Ms. Laufer’s standing, the court also allows her, and others like her, to act as federal vigilantes. I hope you’ll think of this case the next time you hear of some outrageous lawsuit being filed to promote an agenda.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 9, 2024

• How do you define income?
• Can the United States tax you for gains you haven’t received yet?
• If the United States can tax the Moores for profits an Indian company reinvested in themselves, what else could they tax you for?

There are certain words that are so commonly used we think they have a universal understanding. One of those words is “income”. Think about it, what is income? Your paycheck? Dividends on your investments? Profits from your business? When does an increase in the value of something you own become “income”? The answer to that question is important to more than just the parties in the case Moore v. United States, but to just about every American. Can the United States tax, as income, the value of something you have not sold yet?

The Income Tax

Before 1913 and the ratification of the Sixteenth Amendment, the United States had no reason to care how much money you made and what you did with it. The Framers of the Constitution placed the states between the people and the United States when it came to taxes.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers,

U.S. Constitution, Article I, Section 2, Clause 3

While there were multiple attempts to institute an income tax from the mid-19th century to the early 20th century, it wasn’t until 1913 and the Sixteenth Amendment that the United States was legally allowed to create one.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

U.S. Constitution, Amendment XVI

For the first time in our history, Congress had the power to directly tax the American people. However, this was limited to taxes on income.

What is Income?

As I said at the opening, income is one of those words most people understand from its common usage.

a gain or recurrent benefit usually measured in money that derives from capital or labor

Income – Merriam-Webster Dictionary Online

As much as you may curse Tax Day, complain about the withholding on your paystub, or dream about abolishing the IRS, the states ratified the Sixteenth Amendment allowing Congress to directly collect taxes on your income. While federal politicians and bureaucrats have tried to tax wealth rather than income in the past, they have never succeeded. Not yet at least.

The word “income” is not an inkblot. “Income” was understood at the time of the Sixteenth Amendment’s adoption to refer to gains coming into the taxpayer, like wages, rents, and dividends. Appreciation in the value of a home, a stock investment, or other property is not and never has been taxed as income. The reason is that a gain is not income unless and until it has been realized by the taxpayer. …

It is undisputed that the Petitioners realized nothing from their stock investment. They were taxed not because they had any income but because, in 2017, they happened to own shares in a corporation carrying retained earnings on its books.

This is a tax on the ownership of property. It therefore must be apportioned. …

The Court should reaffirm that there is no income without realization.

Moore v. United States – Oral Arguments

These words of Mr. Andrew Grossman, attorney for Charles Moore, seem to be pretty straightforward. As you would expect, the government of the United States has a different view of income.

The MRT is firmly grounded in the Sixteenth Amendment’s text and history. The amendment allows Congress to impose taxes on incomes. That phrase had a well-established meaning drawn from numerous preratification income taxes that Congress enacted before this Court’s decision in Pollock.

Several of those taxes were like the MRT in that they taxed shareholders on undistributed corporate earnings, including the income taxes in 1864, 1865, 1867, and 1870. And this Court upheld Congress’s power to impose those taxes in Hubbard.

The Sixteenth Amendment’s drafters, therefore, would have understood taxes on incomes to include taxes like the MRT.

Moore v. United States – Oral Arguments

Solicitor General Elizabeth Prelogar, arguing for the United States, claims that the MRT, or Mandatory Repatriation Tax, is grounded in the text and history of the Sixteenth Amendment. She points to several taxes that considered undistributed corporate earnings as income. However, each of the taxes she mentions predate the Sixteenth Amendment. She then claims that the drafters of that amendment would have understood income to include such unrealized gains. She claims that such “pass-through” taxation has been passed by Congress on several occasions, and that the courts have limited the case the plaintiffs are relying on, Macomber, to specific dividends.

A stock dividend, evincing merely a transfer of an accumulated surplus to the capital account of the corporation, takes nothing from the property of the corporation and adds nothing to that of the shareholder; a tax on such dividends is a tax an capital increase, and not on income, and, to be valid under the Constitution, such taxes must be apportioned according to population in the several states.

Eisner v. Macomber

Gen. Prelogar even makes an interesting claim:

Finally, the Court doesn’t actually need to resolve any fundamental questions in this case about whether the Sixteenth Amendment requires realization. The MRT taxes income that was actually realized by the foreign corporations, and Congress permissibly attributed the tax on that realized income to U.S. shareholders just as it has done in any number of pass-through taxes throughout our nation’s history. The Court could say only that and affirm.

Moore v. United States – Oral Arguments

It appears Gen. Prelogar doesn’t think the court needs to decide the question of realization because the tax being challenged is against income realized by a third party. To understand this, we need to learn a little more about corporations.

Corporations

While there are numerous forms of corporations, each with their own specific definitions and limitations, in general a corporation is:

an organization formed with state governmental approval to act as an artificial person to carry on business (or other activities), which can sue or be sued, and (unless it is non-profit) can issue shares of stock to raise funds with which to start a business or increase its capital.

Corporation – The Free Legal Dictionary

A corporation is a separate entity, an artificial person. The purpose of a corporation is to separate, and thereby shield, the owners from liability for the actions of this artificial person. For example, if a corporation makes a defective product, you don’t sue the owners of the corporation, but the corporation itself. Similarly, when a corporation makes money it is not the shareholders who are taxed, but the corporation. At least, that’s how it’s supposed to work. In response to a question by Justice Thomas about “realized” gains, Gen. Prelogar said:

I think that this is a paradigmatic case of realization, Justice Thomas, insofar as the thing that’s being taxed, the underlying tax base for the MRT, are the earnings that actually were — came into the corporation, the foreign corporation’s coffers.

So the tax base here was the substantial ordinary business income that the foreign corporation generated through its operations in the foreign country and that has to date been subject to tax deferral.

That income has never been taxed at the corporate or entity level. Instead, what Congress did in the MRT is enact a pass-through tax that attributed the liability on that actual income that was realized to the U.S. shareholders.

Moore v. United States – Oral Arguments

I think what we’re seeing here is the greed of Congress. Remember, the purpose of the Mandatory Repatriation Tax is to tax funds earned overseas back to the United States. In this case, the Moores invested in an Indian startup company known as KisanKraft in 2006. As I believe is common with many startups, the company’s earnings were reinvested in the company. In other words, the Moores did not realize any income, since the earnings were reinvested in the company. Then, in 2018, under the recently passed MRT, the Moores were expected to pay taxes on the reinvested earnings going all the way back to their original investment. However, since the corporation in question is domiciled in India, not the United States, any earnings are taxed under Indian law. Since the income to a foreign corporation, for its operations in a foreign country, was subject to that country’s tax deferrals, no taxes had been collected. Not only did Congress want to tax the Moores for income to a foreign corporation they had not received, they wanted to do so ex post facto, or after the fact, violating Article I, Section 9 clause 3 of the Constitution as well.

No Bill of Attainder or ex post facto Law shall be passed.

U.S. Constitution, Article I, Section 9, Clause 3

Conclusion

We’ll have to wait for the justices’ decision on this case, but this is what I’ve found so far. There are several issues with the Mandatory Repatriation Tax, or MRT.

First, the MRT taxes one party for the income of another. The entire purpose of a corporation is to separate the owners from the corporation for tax and legal purposes. If Congress can simply decide to breech that legal divide for whatever purpose they want, then corporations are useless.

Second is the apportionment problem. Since the Moores, as far as I know, did not receive any earnings from KisanKraft, they have no income to be taxed. Therefore, they are being taxed on the value of their property. Legally, how is this any different than you being taxed on the increase in value of your home or stock portfolio? The answer is, it isn’t. This is a tax on the value of property, a wealth tax collected directly from the people, so it must be apportioned to the states under Article I, Section 2, Clause 3.

Lastly, since the legislation that created the MRT wishes to collected taxes on the increase in value of the Moores stocks since before the tax went into effect, it’s an ex post facto law, and thereby a violation of Article I, Section 9 of the Constitution of the United States.

Why should you pay very close attention to this case? Because, as a direct tax on something other than income, a wrong opinion from the court could open up a deluge of new direct federal taxes on everything from your home, investments, even your childhood Baseball Card collection. Before you dismiss this last statement as fear mongering, remember both Bernie Sanders and Elizabeth Warren have called for wealth taxes at the federal level. While they claim these taxes would be limited to the very wealthy, remember the same was said about the income tax back in 1913. How has that worked out for the American people every April 15th?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 31, 2023

• Whether you make New Years Resolutions or not, the beginning of a new year is a good time to consider the future.
• What will you do in 2024 to help you better understand the Constitution, your rights, and how to defend them?
• What will you do to help protect liberty and freedom for all in 2024?

I don’t “do” New Years Resolutions. To me, they’re one step above a campaign promise. (At least you intend to keep your resolutions.) That said, the beginning of a new year is a good time to consider your future. What plans do you have for the new year? So, while I do not make New Years Resolutions, if you do, here are a few ideas I think you should consider.

Read the Constitution

I know, I sound like a broken record, but I believe reading the Constitution is something we should be doing at least once a year. In fact, it you read the Constitution 3, 4, or even 12 times a year, that would not be a bad thing. I agree with our first Chief Justice of the United States, John Jay. If you want to know when your rights are being violated, and be prepared to defend and assert them, then read and study the Constitution of the United States.

If you are feeling really ambitious, how about reading both the Federalist and Anti-Federalist papers while you’re at it? These were the essays, published in New York newspapers, discussing what the Framers expected the Constitution to actually do, and the concerns some of them had about the central government. If you’re really looking to go deep, follow that up with reading the state ratification debates.

Attend a Bootcamp

Even if you are not considering The Patriots Program, I would recommend attending the bootcamp online. It’s free, and you’ll walk away with tools you can use today to defend and assert your rights.

I’m considering doing a few bootcamps online via Zoom. If you are interested, either sign up for one of my mailing lists or watch the website for the announcement. These Zoom Bootcamps will contain the same information as the recorded one currently available, but it will offer you an opportunity to ask questions and get feedback.

Meet your Sheriff

Believe it or not, the most powerful law enforcement officer in your county is not the State Police, the FBI, or any federal agency, but your Sheriff. Shortly after moving to Middle Tennessee, I setup a meeting with the Sheriff in my county. At first, he was confused because I wasn’t there to complain. I wanted to meet him outside of any campaign, just to know a little bit about the man.

During our meeting I told him what I wanted to know was if anyone from my house calls 911, I wanted to be sure the deputy that showed up was trained that their first and primary responsibility was to protect the rights of everyone involved. The good news, at least for me and the others in my county, my Sheriff agreed. I told him that if he protects our rights, then I would have his back. Granted, I have a unique set of skills; I can teach his deputies, or write a position paper based on the Constitution. I told him I would also stand with him at a press conference, or testify to the constitutionality of his actions.

Have you ever talked to your Sheriff? Ever made sure they understood what you expected from them? More important, have you let your Sheriff know you’ve got their back? If you expect your Sheriff to protect your rights, is it too much to ask that you will back them up when they do? OK, so maybe you don’t think you could write a position paper, but you can stand by them during a press conference, offer to speak up at a county meeting, or just help in any way possible. Imagine what it must feel like for a Sheriff, knowing that if they do anything controversial, the media, politicians, and yes, the public, will be after them. How good would it feel to know that if they fulfill their oath to support the constitutions of their state and the United States, at least some of the citizens of their county will back them up.

Attend School Board or Board of Elections’ Meetings

Now, let’s think about the future. Our children will grow up in the world we leave for them. What will your children learn about themselves, our history, and this country? Since about 90% of children attend a government school, don’t we have a responsibility to make sure they are taught properly? Taught the truth about this country, i.e., the good, the bad, and the ugly? Shouldn’t we make sure they are taught what their rights are, and what their civic responsibilities are to keep this nation free? Then, whether you have school aged children or not, being involved in the school board is a great step. If nothing else, you can help make sure the racism and pornography that has been spreading across academia lately stays out of your schools.

If schools aren’t your thing, what about the Board of Elections? If the United States is to remain a republic, then We the People must choose our representatives by election. Recent history has shown that those elections are under attack. What better way to help preserve the republic than to make sure the elections in your county are free, fair, and transparent? Remember, every election starts at the county level. Keeping your Board of Elections on the right side of the Constitution may not seem like much, but as more and more people do so, we can change not just our counties, but our states and our nation, too.

Vote Wisely

So many people focus on whether or not you vote, few consider how you decide who to vote for? Don’t get me wrong, voting is an important civic duty, but how you decide who to vote for is just as important.

Here’s what I do. When anyone asks for my vote, I start by asking them one question. “Show me when you did something to fulfill your oath to support the Constitution when it cost you something?” I’m looking closely not only at what they say, but how they act. Most people are caught off guard, unsure, and reply with some sound bite platform plank that doesn’t mean a thing. Occasionally, someone will tell me that they raised their hand and signed up to defend this nation, but most people are all talk and no action. To me, it’s not what you say, but what you do that really matters. As we look toward the chaos of the 2024 elections, if you make resolutions, please resolve to vote wisely, not just this year, but in all future years.

Conclusion

If you are making New Years resolutions, I hope you’ll consider some of these ideas. If, like me, you don’t make resolutions, I still hope you will consider these things you can do to help restore liberty and justice to all. Remember, as President James Garfield said at this nation’s first centennial:

[N]ow more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature … [I]f the next centennial does not find us a great nation…it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.

James A. Garfield, A Century of Congress

In the middle of our third century, just as it was at the end of the first, the character of not only our Congress, but of our state legislature, our governors, and our county office holders, is our responsibility. I hope you will take that responsibility seriously.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 23, 2023

• As we celebrate Christmas, I wanted to share a few of my Christmas wishes for you, America, and the Constitution Study.
• While most people would probably list peace on earth among their wishes, what about wishing for liberty?
• What do you hope for in our future? What would you like to see in 2024?

Thankfully, I have not seen the level of controversy over name “Christmas” this year that I’ve seen in years past. Whether or not you celebrate the holiday, 5 USC §6103 lists December 25th as the holiday “Christmas Day”, which is why government offices are shut down today.

Since I do celebrate the holiday, I decided to take a few minutes and consider some Christmas wishes I have for you, this country, and The Constitution Study.

Peace on Earth

As the Christmas Carol I Heard the Bells on Christmas Day goes, I have the wish “Of peace on earth, good will to men!” Living in a fallen world, I know this is highly unlikely. However, it does not stop me from wishing for it. Since none of us have control over the entire world, how about we start with a little peace in our neighborhood? Again, that may be a pretty tall order and dependent upon your neighbors, but I can still wish that as much as it’s within our power, we live at peace with our family, friends, and neighbors. Of course, that would require all of us to grant to our neighbors the liberty to live their lives as they see fit, as long as they do not infringe on the rights of others. As Benjamin Franklin, writing under the pseudonym Silence Dogood wrote in 1722:

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.

Silence Dogood, No. 8 – Printed in The New-England Courant, July 9, 1722

Hope

I’ve received several emails and comments to the effect that it’s over, it’s time to turn out the lights, and to admit that the American experiment has failed. Fair enough; things are pretty ugly right now, and I must admit I don’t see things getting that much better in the near future. I generally have two replies to such statements.

First, how do you know it’s over? After all, none of us know the future, so how do you know things won’t get better? And really, what is the alternative? Simply bending over and shouting, “Thank you sir, may I have another!” while tyrants paddle your behind?

Second, I point out that everyone so far who has made such a statement seems to be focusing on Washington, D.C. Yet we can still have quite in impact within our families, neighbors, towns, and cities. Just because D.C. has become a tyrannical hell-hole, it doesn’t mean we have to live in one as well. When you throw some sound knowledge about the Constitution, our rights, and the limited powers of the federal government in the mix, there is more opportunity for hope than there is for despair.

Therefore, my wish for Christmas is that we do not give up on freedom and that we all stand against the the light of liberty dying.

Liberty

This season I wish that we can all live at liberty.

Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind. The body is at liberty when not confined; the will or mind is at liberty when not checked or controlled. A man enjoys liberty when no physical force operates to restrain his actions or volitions.

Liberty – Webster’s 1828 Dictionary

The thing about living at liberty is that it’s a combination of how we choose to live and how we choose to treat others. As our first Chief Justice of the United States said:

By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

Living at liberty means not only knowing your rights, but being prepared to defend and assert them. Much of what we do here at the Constitution Study involves helping people do just that. Even if the world around you is living under tyranny, if you are prepared to defend and assert your rights, you are free and at liberty. Yes, they may incarcerate your body, but if you are prepared to defend and assert your rights, they can never incarcerate your mind.

Just as there’s a responsibility to defend and assert your rights, you have a duty to allow others to exercise theirs. Just because you disagree with someone does not give you the right to shut them up. Unless that are interfering with the exercise of a legitimate right, being at liberty means allowing others to be free as well.

The Future

As we celebrate Christmas, followed shortly by New Years, let us consider the present all of us are leaving to future generations. Will our children, and our children’s children, live in a country better than the one we live in now? That depends on what we do today, tomorrow, and for the rest of our tomorrows, as we try to secure such a nation for them. It’s my wish that we leave them a nation better, freer, and more at liberty than the one we have today. I also wish we leave those generations with a better understanding of the blessings of liberty, how we secure them, and a desire to leave this country to their rising generation in a better condition than they received it. My fervent wish is for the United States to live up to its national anthem, and be the land of the free by being the home of the brave.

Conclusion

I want to conclude with a personal set of wishes. Earlier this year I launched the Constitution Study Patriots Program, designed to help individuals, groups, and organizations better defend and assert their rights. My Christmas wish is that more people will join me, not only by getting the education needed to live as free men and women, but by helping me build more and better tools to help educate others. To that end, I wish for others to help me communicate what’s going on to an ever widening group of patriots, I wish for others willing to stand up for their rights, and for the rights of others. Lastly, I also wish for others willing to support the work we’re doing, in any way possible.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 20, 2023

• Previously we started reviewing the farewell address of George Washington.
• As we conclude this review we’ll look at Washington’s view on separation of powers, Religion and Government, Debt, and more.
• As we read Washington’s farewell to public life, we should learn some of the lessons he tried to teach us.

In the last article, I started reviewing George Washington’s Farewell Address. As we pick up in the middle of the document, you may want to go back and refresh your memory. Washington has already talked about the strength of the union and the centrality of the Constitution. Now, we pick up his advice with the separation of powers.

Separation of Powers

Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian.

Washington’s Farewell Address 1796

There’s a reason why power is distributed in this country, not just within the federal government, but between the state and federal governments as well. Liberty, the ability to live your life as you see fit, is protected by such separation. So when we see the Executive Branch being delegated and assuming powers not their own, your liberty is in danger. Even worse, when the states relinquish their power to the bribes and intimidations from Washington, D.C., liberty is not only in danger, but under direct attack.

Political Parties

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Washington’s Farewell Address 1796

The only thing worse than the states turning over control to a centralized government, is for them to turn their power over to political parties. The spirit of revenge Washington talked about is alive, well, and on full display not only in Washington, D.C., but in many of our states and cities as well. And as he warned, more and more people are turning to the absolute power of an individual to restore order, but they will only find the ruins of our public liberty.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

Washington’s Farewell Address 1796

This war between the political parties not only distracts those we hire to represent us, but in many cases makes it impossible for them to govern based on the Constitution to which they took an oath. It foments the animosity of groups, driving them toward more militant positions which will one day lead to riots and insurrection. If you search the news, you will see several groups have already gone that far, and their political allies accuse their opponents of doing the same.

Religion and Government

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.

Washington’s Farewell Address 1796

Before the Supreme Court wrote their own opinions about separation of church and state, Thomas Jefferson stated the it was created to protect the church from the state, not the other way around. Before Jefferson’s letter where we get that phrase, Washington stated that religion and morality were indispensable to political prosperity. Or as John Adams put it:

Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other

From John Adams to Massachusetts Militia, 11 October 1798

So why do we work so hard today to keep religion and morality out of politics? If, as Washington said, you cannot claim the name of patriot while subverting these two great pillars, what does that say about those today who labor so hard at tearing them down?

Debt

As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible, avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it, avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertion in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.

Washington’s Farewell Address 1796

The full faith and credit of the United States is a source of great strength and influence, not only in times of peace, but for our ability to fund necessary wars. Therefore our credit should be something jealously guarded. Today, with our almost $34 trillion in debt, (that $34,000,000,000,000), it seems we not only no longer guard our national credit, but debase it. Rather than using our credit sparingly and shunning occasions of expense, as Washington suggested, we’ve been finding every possible way to expend more and more money, generally for political gain. When in times of peace, rather than taking the opportunity to discharge our debts, we have been ungenerously throwing upon our posterity a burden they could never bear.

Foreign Relations

In the execution of such a plan, nothing is more essential than that permanent, inveterate antipathies against particular nations, and passionate attachments for others, should be excluded; and that, in place of them, just and amicable feelings towards all should be cultivated.

Washington’s Farewell Address 1796

Washington was trying to make a point. As a nation we should not have strong positions, either for or against, any other nation. This is quite the opposite of America’s foreign policy for several generations. Why did Washington think we should stay out of foreign entanglements?

The nation which indulges towards another a habitual hatred or a habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest.

Washington’s Farewell Address 1796

When we make a relationship with another nation, when we tie our future to theirs for good or for ill, we put them in charge of our foreign policy. Our alliance with Great Britain got us into two world wars, and our alliance with Saudi Arabia has frequently put us at odds with other Middle Eastern nations, including until recently having our embassy in Israel in Tel Aviv rather than Jerusalem. In the same way our fear of the Soviet Union influenced our decisions in Eastern Europe for decades, our fear of China means we still won’t officially recognize Taiwan as its own country.

Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government. … Excessive partiality for one foreign nation and excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.

Washington’s Farewell Address 1796

Compare Washington’s urging against foreign influence to today’s agenda of the United States as the world’s policeman, the nation you go to when you need assistance or protection. So what would Washington have us do? How would he have us deal with other nations?

The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.

Washington’s Farewell Address 1796

Put another way, in commerce friends; beyond that we should have as little connection as possible. Think back, how many wars have started because of treaties between nations? Now we have calls for the U.S. to not only send weapons to Ukraine, but put American boots on the ground.

Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice?

It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and would be unwise to extend them.

Washington’s Farewell Address 1796

If honesty is the best policy, both in public and private affairs, here is a truth we all should share. My father told me not to co-sign a loan for a friend, because your future is tied to them paying the loan. When we link our futures to the affairs of other nations, they are in control, not us. Put another way, we enslave our future to their decisions.

Farewell

Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend.

Washington’s Farewell Address 1796

Here is something rare in politics today: Humility. The father of the nation, the first President of the United States, and the only man known for walking away from power, had the humility to know that he has probably committed many errors. Now there is a farewell with class. If only our current crop of politicians, bureaucrats, pundits, and so-called experts, could show a faction of such class.

Conclusion

What have you learned from the farewell address of the Father of our country? Was it the importance of following the Constitution, or of religion and morality? That we should avoid debt and foreign entanglements? Or was it something else? While no man is perfect, a fact Washington not only knew but expressed, there is a lot to learn from his advice. Perhaps a frequent review of his sentiments on such matters would alleviate us of many of our problems, turmoil, and pain.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 12, 2023

• While preparing to leave office, the first President under the new Constitution left the country he loved a present.
• He not only discussed why he was retiring, but provided some salient advice on how those who would pick up his mantle should seriously consider.
• The advice he gave his nation is something we should review, more than once.

As he prepared to leave office, President George Washington gave a Farewell Address.

Friends and Citizens:

The period for a new election of a citizen to administer the executive government of the United States being not far distant, and the time actually arrived when your thoughts must be employed in designating the person who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed, to decline being considered among the number of those out of whom a choice is to be made.

Washington’s Farewell Address 1796

As our thoughts are employed in the designation of the person who is to be clothed with the trust of administering the executive branch of the government of the United States, I think we should look back at the advice and warnings from the first occupant of that office.

Retirement at Last

As Washington said in the opening of his farewell address, he would not serve a third term.

The acceptance of, and continuance hitherto in, the office to which your suffrages have twice called me have been a uniform sacrifice of inclination to the opinion of duty and to a deference for what appeared to be your desire. I constantly hoped that it would have been much earlier in my power, consistently with motives which I was not at liberty to disregard, to return to that retirement from which I had been reluctantly drawn. The strength of my inclination to do this, previous to the last election, had even led to the preparation of an address to declare it to you; but mature reflection on the then perplexed and critical posture of our affairs with foreign nations, and the unanimous advice of persons entitled to my confidence, impelled me to abandon the idea.

Washington’s Farewell Address 1796

Not once, but twice, George Washington was called on to be President of the new country under the new Constitution, and twice he agreed. With the expectation that he would be called again a third time, Mr. Washington wished only to retire to Mount Vernon. After seeking advice from those in his confidence, he made it clear that he intended to return to the retirement he had previously enjoyed.

In looking forward to the moment which is intended to terminate the career of my public life, my feelings do not permit me to suspend the deep acknowledgment of that debt of gratitude which I owe to my beloved country for the many honors it has conferred upon me; still more for the steadfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment, by services faithful and persevering, though in usefulness unequal to my zeal. …

Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me, on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments which are the result of much reflection, of no inconsiderable observation, and which appear to me all-important to the permanency of your felicity as a people.

Washington’s Farewell Address 1796

As Mr. Washington prepares to retire, his concerns over the welfare of the people of the United States leads him to one last duty. He takes the time to record the dangers he foresees and to provide advice. It was his hope that the people would frequently review his warnings. Let us renew that tradition, starting today.

Strength of the Union

The unity of government which constitutes you one people is now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.

Washington’s Farewell Address 1796

Washington knew that enemies, both foreign and domestic, would seek to pull this nation apart. That only a people devoted to unity within the union would support the peace and safety they so greatly prized. That those enemies would work to devalue and divide the union. That the division and alienation that has become the basis of so much of our society would be the destruction of more than the union, but of our domestic tranquility itself. We are witnessing the prescience of Washington’s warning. Perhaps we can learn how best to rescue ourselves from this situation by reading more of his words.

For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.

Washington’s Farewell Address 1796

Being an American used to be a source of pride. Whether a citizen by birth or by choice, patriotism should supercede our petty differences. Our willingness to tolerate our minor differences led to our independence and liberty in a way no other nation has ever achieved. Our willingness to come together to face our common dangers and sufferings and to protect the rights of our neighbors and fellow citizens now seems to have weakened to the point of failure. Because of this, the American motto e pluribus unum, out of many one, is collapsing into e unum pluribus, out of one many. More and more we are no longer Americas, but African-Americans, Latino-Americas, Asian-Americans, LGBTQ-Americans, along with another host of hyphenated titles. We forget that what all of these labels have in common is that we are all Americans. While we set ourselves against our hyphenated brethren, while we tear the Union apart with our focus on division, we lose one of the things that once made America the shining city on a hill Ronald Reagan once talked about: Affection for our neighbors.

In contemplating the causes which may disturb our Union, it occurs as matter of serious concern that any ground should have been furnished for characterizing parties by geographical discriminations, Northern and Southern, Atlantic and Western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection.

Washington’s Farewell Address 1796

It’s not just ethic backgrounds that are being used to divide us. Have you noticed how we all have fallen into these geographic distinctions? North vs south, eastern vs western, coastal vs central, even urban vs rural. How often have we seen those who seek after influence lie about those of other groups? So often that we even have a joke about it. “How can you tell when a politician is lying…” We have divided ourselves to the point that some are calling for a national divorce, a dividing of the union, or even a civil war. It seems to me that most of this division comes more from political agitation than actual differences.

Centrality of the Constitution

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.

Washington’s Farewell Address 1796

For this union to exist, all parties must agree to the obligation of following the Constitution established by the people. We create governments via constitutions. Until the people change the powers and function of the government established by the Constitution, we are all obliged to follow that government. However, what happens when that government violates the constitution which created it? As the Constitution states, we owe our allegiance to the Constitution as the supreme law of the land, not to the men who may pervert it. Yet how many today even know what the Constitution says? You are almost certainly not going to learn it in law school, where they teach the opinion of judges supersedes the supreme law of the land. If we do not read the Constitution for ourselves, how are we to know whether an act of Congress, a regulation from the executive branch, or the opinion of a judge is obstructing the supreme law? How are we to know if those who serve in government are obstructing the very law they swore or affirmed to support?

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community;

Washington’s Farewell Address 1796

Have you noticed how the execution of laws seems to be focused on factions and political parties? What one group does goes unpunished while a group from another faction is severely punished. This is not merely double standards, but is destructive to the fundamental principle of liberty and equal protection under the law. We shouldn’t be surprised, since for decades those in charge of making and executing the laws, not to mention those tasked with deciding controversies, have been obstructing the execution of the Constitution as the supreme law of the land while We the People stood around, watched, and cheered.

Conclusion

There is so much we can learn from Washington’s Farewell Address I’ve had to break it up into two parts. In the next article I will review the rest of the document. Before I close today though, I would like you to consider this. At the birth of our country, our very first President set the standards and traditions that Presidents have followed for almost 150 years. As the people we have placed in office, along with those we hire to represent us and the states, have walked away from his advice, we have watched the crumbling of the republic. Perhaps, by frequent review of Washington’s advice, we can return the republic to the constitutionally sound country he helped create.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 9, 2023

• Should the American way of life come to an end, would it be from a foreign foe or a domestic one?
• Can an 18th century lawyer and a 20th century defector warn us about our future?
• The Soviet Union may have died in the 20th century, but do its seeds still flourish in American soil?

In 1837, Daniel Webster wrote:

“I apprehend no danger to our country from a foreign foe… Our destruction, should it come at all, will be from another quarter. From the inattention of the people to the concerns of their government, from their carelessness and negligence, I must confess that I do apprehend some danger.”

Daniel Webster [June 1, 1837]

I’ve been thinking about that statement lately. I also came across a video that I had forgotten about that’s part of an interview with Soviet defector Yuri Bezmanov. Mr Bezmanov was a former KGB agent who defected to Canada in 1970. In 1984 he gave an interview to G Edward Griffin, where he exposed a long-term Soviet plan to defeat America not by force of arms, but through psychological warfare.

You may be asking, what does a late 20th century defector have to do with a 19th century lawyer and statesman, and how could it possibly be relevant to our situation in the 2020s? I came to find out both of these men were quite prescient in their warnings to the American people.

Daniel Webster

As Daniel Webster warned, America is not being destroyed from without, but from within. Our apathy about what the federal government does, our carelessness in dealing with the bad actors that inevitably enter government services, and our negligent attitude when the Constitution is violated, has certainly led the United States to the brink of collapse. Mr. Webster went on to warn:

I fear that they may place too implicit a confidence in their public servants, and fail properly to scrutinize their conduct; that in this way they may be made the dupes of designing men, and become the instruments of their own undoing.

Daniel Webster [June 1, 1837]

Just think of the things the American people have placed blind confidence in those in government for: Retirement, health care, food and drug safety, education, and energy, just to name a few. Yet no matter how often government fails, the answer always seems to be a call to give them more. The collapse of our republic should be laid not at the feet of some nameless, faceless government actor, but on the American people who have been duped by their false promises.

However, there is one area where Mr. Webster appears to have gotten things wrong, because there was a danger from a foreign foe. They used our carelessness and neglect to not only accelerate our destruction, but also to supplant the American way with a collectivist and communist agenda.

Yuri Bezmanov

As a former KBG officer, Mr. Bezmanov was aware of many of the methods used by that organization to subvert the United States. In his 1984 interview with Mr. Griffin, he detailed some of these techniques, starting with “ideological subversion”. (Please excuse the flaws in the original transcript.)

Ideological subversion is is the process which is legitimate overt and open you you can see it with your own eyes all all you have to do all American mass media has to do is to unplug their bananas from their ears open up their eyes and they can see it … But in reality the main emphasis of the KGB is not in the area of intelligence at all according to my opinion and opinion of many defectors of my caliber only about 15% of time, money, and Manpower is spent on espionage as such the other 85% is a slow process which we call either ideological subversion or active measures активные меры in the language of of the KGB or psychological warfare what it basically means is to change the perception of reality of every American to such an extent that despite of the abundance of information no one is able to come to sensible conclusions in the interest of defending themselves their families their community and their country. It’s a great brainwashing uh process which goes very slow and it’s divided in in four basic stages.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

Mr. Bezmenov then goes into describe ideological subversion in some detail.

The first one being demoralization it takes from 15 to 20 years to demoralize a nation. Why that many years because this is the minimum number of years which requires to educate one generation of students in the country of of of your enemy exposed to the ideology of the enemy. In other words Marxism, Leninism ideology is being pumped into the soft heads of of at least three generations of American students without being challenged or counterbalanced by the basic values of americanism American patriotism. The result the result you can see. Most of the people who graduated in 60s, dropouts or half baked intellectuals are now occupying the positions of power in the government, civil service, business, mass media, educational system. You are stuck with them you cannot get rid of them they are contaminated they are programmed to think and react to certain stimuli in a certain pattern. You cannot change their mind even if you if you expose them to authentic information even if you prove that white is white and black is black you still cannot change the basic perception and the logic of behavior. In other words these people uh uh the process of demoralization is complete and irreversible.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

In 1960, then First Secretary of the Communist Party of the Soviet Union, Nikita Khrushchev spoke at the United Nations, stating that Communism would outlast the United States. While the 1990s made it look like Mr. Khrushchev was wrong, it seems the KGB’s plans may have won in the long run.

Today we have people who refuse to believe video evidence of the atrocities committed by Hamas against civilians in Israel. Others continue to line up to get vaccinated in the face of evidence that these “vaccines” are neither effective or very safe. As Mr. Bezmenov describes, there is more to come.

Unlike in present United States there will be no place for descent in in future Marxist Leninist America uh here you can you can get uh popular like Daniel Ellsberg and filthy rich like Jane Fonda for being dissident for criticizing your pentagon. In future these people will be simply squashed like cockroaches nobody’s going to pay them nothing for their beautiful noble ideas of equality this they don’t understand and uh it will be greatest shock for them of course

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

Today, we have not only governments, but private actors censoring information they don’t like. Cancel culture attempts to punish individual and businesses for expressing ideas contrary to the agenda of the appartchik. In short, as Mr. Bezmanov describes, this phase of the demoralization of America was completed even before his 1984 interview, and we have taken in far, far beyond what the KGB had hoped.

The demoralization process in the United States is basically completed already uh for the last 35 years actually it’s over fulfilled because demoralization now reaches such areas where previously not even Comrade Andropov and and all his experts would would even dream of such a tremendous success most of it is done by Americans to Americans thanks to lack of moral standards as I mentioned before uh exposure to true information does not matter anymore a person who was demoralized is unable to assess true information the facts tell nothing to him uh even if I shower him with information with with authentic proof with documents with pictures even if I take him by force to the Soviet Union and show him concentration camp he will refuse to believe it until he he’s going to receive a kick in the in his fat bottom when a military boot crashes his then he will understand but not before that that’s the tragic of the situation of demoralization so basically America is stuck with with demoralization and unless even if if you start right now here this minute you start educating new generation of American it will still take you 15 to 20 years to turn the tide of uh of ideological perception of reality uh back to normal normally and and patriotism.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

Ladies and gentlemen, this was 39 years ago! We could have turned the demoralization around twice, yet the American people were unwilling to do so. Rather, we have let the American education system poison the minds of several generations with little if any challenge. We stood by while the federal government illegally meddled in our educational system, making things worse.

The KGB may have started this process, but ultimately, we have done it to ourselves.

The next stage is destabilization this time subverter does not care about your ideas and the patterns of your consumption whether you eat junk food and get fat and flab it doesn’t matter anymore this time and it takes only from two to five years to destabilize a nation uh it’s what what matters is essentials economy foreign relations defense systems uh and you can see it quite clearly that in some areas uh in such sensitive areas as as uh defense and economy the influence of Marxist Leninist ideas in the United States is absolutely fantastic I I could never believe it 14 years ago when I landed uh in this part of the world that the process will go that fast.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

Have you seen how the collectivist ideas have taken over our businesses, foreign relations, and defense? Businesses are being forced to hire people based on the color of their skin rather than their skills. Under Obama we turned our back on two of our staunches allies, the United Kingdom and Israel, to support China and Iran. The Defense Department not only has placed the “climate change” agenda above national defense, but the transgender, racial, and sexualization agendas as well.

The next stage of course is crisis it it it may take only up to six weeks to to bring a country to the verge of crisis you can see it in in Central America now and after crisis with a violent change of of power structure and economy you have so-called the period of normalization it may last indefinitely normalization is a cynical expression borrowed from Soviet propaganda when the Soviet tanks moved into Czechoslovakia in ‘ 68 com BR said now the situation in brotherly Czechoslovakia is normalized this is what will happen in United States if you allow all the Schmucks to bring the country to crisis to promise people all kind of goodies and the paradise on Earth uh to to destabilize your economy to eliminate the principle of free market competition and to put a big brother government in Washington DC.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

How many crises have we had since 1984? The first and second Gulf Wars, 9/11, the Afghanistan War, the dot-com bust, the housing crisis, and I’m sure there are more. Then we have the self-inflicted crises: The Patriot Act, the surveillance state, COVID, the 2020 election, and the January 6th incarcerations. Now we’re told that these are normal.

Time Bomb is ticking with every second the disaster is coming closer and closer unlike myself you will have nowhere to defect to unless you want to live in Antarctica with penguins this is it this is the last country of freedom and and possibility

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

This time bomb Mr. Bezmanov has been talking about has been ticking for almost four decades. That is four decades of propaganda being pumped into the minds of the rising generations. Four decades of people being told the lie is the truth. Four decades of opportunities to restore not only the Constitution, but the American way of life, lost. Where does that leave us? What can we do?

people well uh the the um the immediate thing that comes to my mind is of course there must be a very strong National effort to educate people in in in the spirit of real patriotism number one number two to to explain them the real danger of Socialist Communist whatever welfare state Big Brother government if people will fail to grasp the impending danger of that development nothing ever can help United States you make his goodbye to your freedom including freedoms to to homosexuals to prison inmate all this Freedom will vanish evaporating in 5 seconds including your precious lives.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

Step one must be an effort to educate the people. As John Jay put it, to teach the rising generation to be free. We need to teach the spirit of real patriotism and the dangers of all collectivist systems, including communism. If we fail at this, then we can wave goodbye to our freedoms. There’s a problem though; in most aspects, it’s the government actors who have been leading this country to destruction.

The second thing I the moment at least part of United States population is convinced that the danger is real they have to force their government and I’m not talking about sending letters signing petitions and all this beautiful noble activity I’m talking about forcing United States government to stop aiding communism because there is no no other problem more burning and and urgent than to stop the Soviet military industrial complex from destroying what is whatever is left of the free world. …

USSR the Soviet people 270 millions of of Soviets will be eternally thankful to you if you stop aiding a bunch of murderers who sit now in Kremlin and whom president Reagan respectfully calls government Today, it is not the Soviet military industrial complex, but the academic system that is destroying the free world. Our job, our duty, if we are to remain free is to FORCE government to stop aiding communism.

Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]

If We the People wish to remain free, it’s up to us to FORCE the government to stop aiding the collectivists. I don’t mean denying their rights, but stop aiding and abetting those who are trying to destroy this country. Stop federal funding of education. Stop subsidizing the collectivist agenda. Not by writing letters or signing petitions, but by making the politicians more afraid of disappointing the American people than their donors and political parties.

Conclusion

Daniel Webster was correct when he wrote:

Make them intelligent, and they will be vigilant; give them the means of detecting the wrong, and they will apply the remedy.

Daniel Webster [June 1, 1837]

While Mr. Bezmanov is right about many things, the one thing I think he missed is the how. How do we force governments to stop supporting collectivism and start honoring their oath of office to support the Constitution? How do we educate the people in the spirit of real patriotism? We can’t expect the same government that is promoting collectivism to teach our children the spirit of liberty. That job falls to us. Actually, that job was always ours; we’ve just been convinced to turn it over to government. Now it’s time to take it back.

Will we learn the lesson Yuri Bezmanov tried to teach us back in 1984? Do we still have time to save the republic? Whether we’ve past the point of no return or not, what is our alternative? Do we simply give up and drown in the tyranny of others, or fight for every breath of freedom we can?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 1, 2023

• Do you believe that the truth shall set you free?
• How do we know what the truth is?
• How can the American people believe in self-evident truths if they don’t believe there is such a thing as truth?

There have always been attacks on what is true. From the serpent in the Garden of Eden asking, “Did God really say…” to today’s attempts to quash “disinformation”, truth has been under attack. While many of these attacks have been about what the truth is, over the past couple of generations the idea of truth itself has been under attack. Why is that? In the Gospel of John, Jesus said:

And you shall know the truth, and the truth shall make you free.” —John 8:32 (NKJV)

Could the answer be that simple? Could the attacks on the very idea of truth simply be attacks on our freedom? If that is true, then what can we do to defend not only our freedom, but the very idea of freedom itself?

Self-Evident Truths

Let’s face it, without the idea of truth, we never would have become independent from Great Britain.

We hold these truths to be self-evident, …

U.S. Declaration of Independence

There are things that are not only true, but so obviously true we should not need to write them down; everyone used to agree they were true. While we all rarely agree on what the truth is, we still generally agreed there was a truth we could find. Knowing there is a truth is one thing; finding out what that truth is might be something else. So, if we want to be free, finding out what that truth is should be our first step.

Knowing the Truth

I recently received a question based on an article entitled “Feds Have Tied The Hands Of TN Law Enforcement On Illegal Immigration, Tennessee Leadership Refuses To Push Back“. It would appear, according to the author of this article, that not only is Tennessee law enforcement being restrained, but our legislature and people are as well. This position of federal supremacy comes from a statement I found in the article.

According to the Department of Homeland Security, under the Supremacy Clause in The Constitution, the assignment of immigration law and enforcement of those laws is given to the federal government, and in order to comply with a “cooperation only” approach, states are relegated to a prone position, at least, under The Biden Administration.

Feds Have Tied The Hands Of TN Law Enforcement On Illegal Immigration, Tennessee Leadership Refuses To Push Back

It would seem that the hands of all Tennesseans are well and truly bound by the whims of the Biden Administration. That is, except for one small thing: The truth.

According to the Department of Homeland Security (DHS), the Supremacy Clause of the Constitution gives the creation and enforcement of immigration laws to the federal government. However, the Supremacy Clause, found in Article VI, Clause 2, says no such thing.

This 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;

U.S. Constitution, Article VI, Clause 2

In order for any law to be considered the supreme law of the land, it must be made in pursuance, or following, the Constitution, which specifically states in the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

So for a law of the United States to be the supreme law of the land, it must put into effect a power delegated to the United States by the Constitution. A quick look at Article I, Section 8, Clause 4 shows that Congress has the power:

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

U.S. Constitution, Article I, Section 8, Clause 4

Congress has the power to create rules for naturalization, which is:

The act of investing an alien with the rights and privileges of a native subject or citizen.

Naturalization, Webster’s 1828 Dictionary

It does not grant to Congress the power to regulate immigration, which is:

The passing or removing into a country for the purpose of permanent residence.

Immigration, Webster’s 1828 Dictionary

In fact, the term “immigration” does not appear in the Constitution of the United States. This means that Congress does not have the legitimate power to regulate immigration. Therefore, federal immigration laws are not the supreme law of the land, and in fact are void and meaningless.

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County :: 118 U.S. 425 (1886)

So it seems that the federal government has not tied the hands of Tennessee law enforcement, or the law enforcement of any other state. Rather, these states have not only tied their own hands, but enslaved themselves to a lie. If only there was a way to set them free.

One Small Step for Truth…

As I have frequently said, I am not a lawyer, but I not only was I able to immediately spot the lie from the Department of Homeland Security, I was able to defend my position with proof that what I am saying is true. (By the way, there is a lot more to this argument. I’ve written an article about a similar situation with the Department of Education for members of the Patriots Program.) How was I able to do that so quickly? By following the advice of the first Chief Justice of the United States, John Jay.

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

By reading and studying the Constitution, I’ve become so familiar with it that the lie from DHS was as obvious as a three dollar bill. Furthermore, that familiarity with the Constitution meant I knew exactly where to go to find the truth of the matter.

You may be asking yourself, “How could I gain such skills with the truth?” I followed John Jay’s advice and studied the Constitution. I did not go to law school, where, rather than studying the language of the supreme law of the land, students study the opinions of judges. It may seem daunting, but the language of the Constitution is generally very easy to read. After all, it was written so an 18th century farmer could understand it. I’ve even written a book called The Constitution Study where I take you through my study of the Constitution in plain, conversational English. Yet studying is just the first step.

In John chapter 8, Jesus told those who follow Him:

“If you abide in My word, you are My disciples indeed. And you shall know the truth, and the truth shall make you free.”

John 8:31-32 (NKJV)

In a way, John Jay was saying the same thing. If you abide in the Constitution, if you read and study it as a disciple, then you will know the truth about this country and be freed from the tyranny of those who lie about it. In both cases though, the impetus is on us. Just as Jesus’ followers had to abide in His Word to be His disciples, we must spend time in the Constitution, becoming students of the document. If we wish to know the truth, we cannot depend solely on the words of others, but must find it for ourselves. We must always be in search of the truth, not merely content with the words we agree with. For the truth to set us free, it must be actually true. That is why the foundational principles of The Constitution Study are:

• It’s only an opinion unless there is proof.
• An expert opinion is only an opinion unless there is proof.
• Original documents are our best sources.
• Check your sources.

In 1983, U.S. Senator Daniel Patrick Moynihan was quoted in the Washington Post as saying:

Everyone is entitled to his own opinion, but not his own facts.

1983 January 18, The Washington Post, More Than Social Security Was at Stake by Daniel P. Moynihan, Quote Page A17, Column 5, Washington, D.C. (ProQuest)

While not the first to express that sentiment, Mr. Moynihan is probably one of the best known. We all have opinions, but that does not make them all true. While we often look to experts, we have to remember that they can be wrong as well. Millions of Americans have been enslaved to ideas based on opinion rather than facts. The consequences of those opinions have ranged from the benign to the truly horrific. Our entire legal profession is based on the opinion of judges, often completely devoid of facts, if not actually antithetical to them. If we wish to be free, we must start by making sure what we know is actually true.

… One Giant Leap for Freedom

John Jay said that reading and studying the Constitution would not only help you recognize when your freedoms were being violated, but be better prepared to defend and assert them. Imagine walking down the street not only knowing what your rights are, but how you can defend them. I’ve told stories before about standing up to illegal mask mandates, overly curious FBI agents, and questionable U.S. Attorney’s offices. That freedom was made possible by knowing my rights and being prepared to defend and assert them. That knowledge came from an honest and forthright study of what the Constitution actually says. Not what I had been taught in school or what “experts” like those at DHS said, but reading the actual documents. Because of that, I live free. That’s not to say there aren’t those who would attempt to take away my freedom because of lies that have been told. Rather than being defenseless, I have the truth on my side. I’m hoping to have a few million Americans on my side as well.

Most people are familiar with the Hans Christian Andersen story The Emperor’s New Clothes. Having been conned into believing he was wearing a fine set of clothes, the emperor walked through the village not knowing he was undressed. None of the townsfolk admitted they could not see the emperor’s cloths until a small boy pointed out the truth: The emperor was naked. Once the “spell” was broken, the entire town took up the cry.

Today, many in the federal government walk around believing they are wrapped in robes of power, some because of their own arrogance and others because “experts” have told them so. Most of the American people seem to go along with the lie, not because they can see the power robes, but because of the lies they have been told. I hope today, as I’ve pointed out in some small way how naked federal actors are, the “spell” will be broken and you will join me in pointing that out as well. While being a single voice showing the naked power grab of Washington, D.C. may allow me to live free, it will take the courage of millions of Americans to help break the “spell” nationwide. It will not be easy, and there are risks involved. If we wish to live up to the words of the national anthem and be the land of the free, we must once again become the home of the brave. That means being brave enough to not only seek for the truth yourself, but stand up and point out when the federal “emperor” is as naked as the day he was born.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 24, 2023

• Under what circumstances can the government suspend your right to keep and bear arms?
• What rights does someone subject to a restraining order have?
• Will a case with an unsavory party be used to deny the right of others?

There is an adage in the legal profession, “Hard cases make bad law.” Well, since court cases in this country are not law, only precedent, you might be tempted to dismiss this saying. However, since our courts are so devoted to their precedent, we should be very careful when hard cases come to the Supreme Court. For example, one case heard by the court has a very unsavory respondent. The question is, will Mr. Zackey Rahimi’s past be used to infringe on the rights of the rest of the American people?

For months I’ve been hearing the Second Amendment community talk about the case United States v. Rahmimi. The question at hand in this case is:

Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.

United States v. Rahimi – Petition for Certiorari

While many in the Second Amendment community are happy to see the question brought to the court, the specifics of Mr. Rahimi’s case may leave such a bad taste in the justice’s mouths we may not get a constitutionally sound answer. Now that the court has heard oral arguments, I thought it was time to discuss the case.

Facts of the Case

The heart of the case is the question of when it is constitutional to prohibit someone from being able to keep and bear arms. If you were looking for a poster child for this question, Zackey Rahimi is just about the last person you would choose.

Respondent Zackey Rahimi was a drug dealer who “mostly sold marijuana and occasionally sold cocaine.” …. In December 2019, Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. … C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. … He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. … In the meantime, C.M. escaped the car and fled the scene. … Rahimi later called her and threatened to shoot her if she told anyone about the assault.

United States v. Rahimi – Petition for Certiorari

I think it’s safe to say that Zackey Rahimi is not a nice guy. In fact, Mr. Rahimi seems to be a perfect example of someone for whom the possession of a firearm would be considered a danger to others. This fact did not escape the Texas legal system.

In February 2020, after giving Rahimi notice and an opportunity for a hearing, a Texas state court granted C.M. a restraining order, which was valid for two years. … The court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” … The court accordingly prohibited Rahimi from committing family violence and from threatening, harassing, or approaching C.M. or her family. … The order also suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony. … Rahimi signed an acknowledgement that he had “received a copy of this protective order in open court at the close of the hearing in this matter.”

United States v. Rahimi – Petition for Certiorari

It may not surprise you that Mr. Rahimi did not take this opportunity to reform his life. In August of 2020, Mr. Rahimi not only contacted C.M. via social medial, but went to her house in the middle of the night. Then, in November of 2020, he threatened another woman with a gun, for which he was charged by the State of Texas with aggravated assault with a deadly weapon. Between December 2020 and January 2021, it also appears Mr. Rahimi participated in a series of five shootings. After being identified as a suspect in those shootings, police executed a search warrant, where they found a pistol, rifle, magazines, and ammunition. This led to Mr. Rahimi’s federal case.

A federal grand jury in the Northern District of Texas indicted Rahimi for violating 18 U.S.C. 922(g)(8) and 924(a)(2). … Section 922(g)(8), which Congress enacted in 1994, prohibits a person who is subject to a domestic-violence restraining order from possessing a firearm in or affecting commerce. At the time of Rahimi’s conduct, a knowing violation of Section 922(g)(8) was punishable by up to ten years of imprisonment.

United States v. Rahimi – Petition for Certiorari

So what does 18 USC 922(g)(8) say? Rather than quote you the details, I’ll let the Solicitor General’s words from the petition describe it.

To trigger Section 922(g)(8), a restraining order must satisfy three conditions. First, a court must have issued the order after giving the person subject to it notice and an opportunity to be heard. 18 U.S.C. 922(g)(8)(A). Second, the order must forbid the person from harassing, stalking, or threatening an “intimate partner,” the person’s child, or an intimate partner’s child. 18 U.S.C. 922(g)(8)(B); … Third, the order must either (1) include a finding that the person poses a “credible threat” to the physical safety of the intimate partner or child or (2) explicitly prohibit the use, attempted use, or threatened use of physical force against the intimate partner or child. 18 U.S.C. 922(g)(8)(C).

United States v. Rahimi – Petition for Certiorari

I read §922(g)(8) and the Solicitor General accurately describes the trigger portions of law. I thought it would be easier to read than the text of the law, which you can find here. Did the restraining order against Mr. Rahimi meet those requirements?

The restraining order in this case satisfied each of those requirements. Rahimi received notice and an opportunity to be heard. … C.M. was Rahimi’s intimate partner because they had a child together. … And the order both contained a finding that Rahimi posed a credible threat to C.M.’s physical safety and prohibited the threatened use of physical force against C.M.

United States v. Rahimi – Petition for Certiorari

At this point in the narrative, there’s a restraining order against Mr. Rahimi. Because it involves domestic-violence, he is prohibited from possessing firearms, or at least that’s what the United States is claiming. So how did we get to this case?

Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violates the Second Amendment on its face.

United States v. Rahimi – Petition for Certiorari

The district court denied the motion, but the Fifth Circuit affirmed, at first. After the Supreme Court NYSRPA v. Bruen the Fifth Circuit withdrew its opinion. After receiving a supplemental briefing on Bruen, the Fifth Circuit again reversed the lower court’s decision, holding that §922(g)(8) violates the Second Amendment. This is the state of the case when oral arguments were heard by the Supreme Court on November 7, 2023.

Oral Arguments

As you would expect, the two parties to the case, the United States and Mr. Rahimi, see things very differently. Solicitor General Elizabeth Prelogar argued on behalf of the United States:

Guns and domestic abuse are a deadly combination. As this Court has said, all too often, the only difference between a battered woman and a dead woman is the presence of a gun. Armed abusers also pose grave danger to police officers responding to domestic violence calls and to the public at large, as Zackey Rahimi’s own conduct shows.

To address that acute threat, Congress and 48 states and territories temporarily disarm individuals subject to domestic violence protective orders. Congress designed Section 922(g)(8) to target the most dangerous domestic abusers. It applies only if, after notice and a hearing, a court makes an express finding that the person poses a credible threat to an intimate partner’s physical safety or imposes a specific prohibition on the use of physical force, and the disarmament lasts only as long as the order remains in effect.

United States v. Rahimi – Oral Arguments

“Guns and domestic abuse are a deadly combination.” So are knives, clubs, and motor vehicles, though none of them are prohibited for those under a restraining order. It seems, in her haste to condemn the possession of firearms, Ms. Prelogar has conveniently ignored all of the other weapons frequently used to harm not only the victims of domestic abuse, but police officers and the public at large.

Mr. Wright, the public defender representing Mr. Rahimi, was not nearly as articulate in the opening of his argument.

My friend described several times the government’s principle that in this case, they are not relying on any analogues that were directed at people who were not part of the people, outside the community, the national or political community entirely.

United States v. Rahimi – Oral Arguments

Mr. Wright went on to respond to some questions that had been raised by the bench during his opponent’s oral arguments. He closed his opening statement with:

When Congress enacted Section 922(g)(8) in 1994, it acted without the benefit of Heller, McDonald, and Bruen, so we shouldn’t be surprised that they missed the mark. They made a one-sided proceeding that is short a complete proxy for a total denial of a fundamental and individual constitutional right.

United States v. Rahimi – Oral Arguments

In short, Mr. Wright said Congress got it wrong because they did not have the benefit of the court’s opinions in previous Second Amendment cases. Overall, I think the government made a better case. Mr. Wright’s primary assertion seems to be based on Bruen’s “text and history” standard, where the court seeks to see if the law in question has any basis in the text or history of the nation around the time of the ratifications of the Bill of Rights or the Fourteenth Amendment.

Analyzing the Case

When I first looked at this case, I saw something different. First, I saw this not so much as a Second Amendment issue, but a violation of the Fifth Amendment’s Due Process Clause. Just like any other property, the government can only take away a right following Due Process of law, which the Free Legal Dictionary defines as:

An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

Due Process – The Free Legal Dictionary

In order to suspend the right of Mr. Rahimi to keep and bear arms, the government must show that it followed a process that protected his rights. The first right to look at is the right to be considered innocent until proven guilty. While not specifically called out in the Bill of Rights, it is recognized under the Ninth Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

U.S. Constitution, Amendment IX

The most fundamental aspect of innocent until proven guilty is the prohibition of punishment until an actual finding of guilt. That’s not to say the accused cannot be detained or otherwise restricted, but that it should be based on probable cause in the details of the case at hand. As was stated by the Solicitor General in the petition for certiorari, in order for a court order to prohibit the possession of a firearm under §922(g)(8), it must fulfill three criteria. First, there had to have been a hearing at which the accused had an opportunity to participate. While Mr. Rahimi was notified about the hearing and did participate, that’s not a finding of guilt, but seems to have provided evidence of probable cause. Second, the order must restrain someone from threatening an “intimate partner”. This would seem to violate the concept of equal protection, since a restraining order against a stalker, business associate, or neighbor would not qualify. Again, while the Equal Protection Clause of the Fourteenth Amendment is limited to the states, the right to equal protection in federal law is just as protected by the Ninth Amendment. The third criteria for an order to trigger §922(g)(8) has two components, either of which is necessary. Either the order specifically prohibits the use or attempted use of physical force, or a finding that the accused represents a credible threat to the physical safety of the intimate partner or child. The former is dubious because the prohibition against a use of force can be included in a court order whether the accused has been shown to be violent or not. I’m not fully behind the latter because a judge’s finding may be subjective and not based on probable cause from the accused’s actions.

Looking at §922(g) as a whole though, I found a more serious problem with the law.

(g) It shall be unlawful for any person- …

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 USC §922(g)

Article I, Section 8, Clause 3 of the Constitution authorized Congress to regulate interstate and foreign commerce, not to regulate anything that passes through said commerce.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

Since Congress only has the power to regulate interstate commerce, and this law does not regulate commerce of any kind, 18 USC §922 violates both Article I, Section 8, Clause 3 and the Tenth Amendment of the Constitution and is therefore void.

An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.

Ex parte Siebold :: 100 U.S. 371 (1879)

Conclusion

Let’s step back and look at the big picture. Should people who are under a credible threat of serious physical harm or death be granted a restraining order? Absolutely, but we need to remember that those orders are nothing but ink on paper. The order cannot protect you, but it can help law enforcement restrain a person if they violate the order. Should someone have their right to keep and bear arms suspended if they are subject to such an order? Only after they have received due process. There must be a hearing where the accused not only can participate, but bring evidence in their favor. If the finding of such a hearing is that there is probable cause that said person is dangerous to themselves or others, then more should be done than simply depriving them of legal access to firearms. As this case shows, a restraining order did nothing to prevent Mr. Rahimi from contacting and approaching C.M. Even after Mr. Rahimi was arrested for violating the restraining order, he is accused of participating in five additional shootings.

I think I have shown that §922(g) is unconstitutional, not because it violates the Second Amendment, but because it violates Article I, Section 8, Clause 3 and the Tenth Amendment. While §922(g) may be unconstitutional and void, that’s not to say that state laws suspending the right to keep and bear arms to those under a “domestic violence restraining order” are unconstitutional. Just as with federal law, the state must insure that the accused receives due process before issuing such a penalty. Otherwise, they would be in violation of the Fourteenth Amendment’s Due Process Clause.

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV

While I am disappointed by both attorney’s arguments, we’ll have to wait and see how the court decides. Sadly, I’m not expecting the court to come to a constitutional decision. First, there’s the issue of neither side bringing up the fundament flaw in §922(g). What the court has not heard, it’s unlikely to consider in its deliberations. Second, Mr. Rahimi appears to be the perfect example of why such a law, at the state level, may be helpful. While it obviously did not stop Mr. Rahimi from carrying firearms, it would have added an additional charge to his arrest in 2020 when he violated the order. That might have meant that Mr. Rahimi would not have been on the streets in November 2020 to assault another woman with a firearm, or to participate in the other shootings of which he is accused.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 14, 2023

• Is social media the new public square?
• Can government actors block access to government information by putting it on a private account?
• Should government officials be allow to post official business on their private social media accounts?

Social media has become so much a part of our everyday lives that we often don’t think about how we use it. This has led to what appears to be a large percentage of Americans developing what can at best be described as some “interesting ideas” about the relationship between government and the various social media platforms. Some recent cases bring the question of the relationship between government actors and social media companies into question. Probably the most well known would be Missouri v. Biden, where the states of Missouri and Louisiana have brought suit claiming that members of the Biden Administration violated the First Amendment by attempting to influence what content would be deleted or deemphasized on various social media platforms. Two other cases involving local officials focus on how government actors can block access to their social media accounts. While most of the country seems to be focused on Missouri, these two cases bring up some questions the American people should really think about.

Should the federal government pressure social media companies to censor content on their platforms? I would hope the American people would not only recognize that it would be wrong, but a violation of the First Amendment. Today, we’ll be looking at a couple of other cases involving local government actors and how they use social media. While the case Missouri v. Biden is extremely important, like so many other things we should not let what’s going on in Washington, D.C. distract us from what is going on in our own back yard. That is why we’re looking at Lindke v. Freed and O’Connor-Ratcliff v. Garnier.

Social Media

I have to admit to a bit of a love-hate relationship with social media. On the one hand, these platforms help me put content in front of thousands of people I wouldn’t normally have access to. They allow me to post articles, videos, and podcasts on their platforms, usually for no charge. That is a tremendous boon for the information age. Many of these platforms have not only censored some of my content, but have blocked my account entirely, preventing me from using their services. These are private organizations, so I don’t have a problem with them censoring content since these are their platforms, not mine. Still, these two cases highlight dangerous misunderstandings about social media.

The dialogue between public officials and their constituents is fundamental to our democracy. Much of that conversation now takes place online, with social media platforms serving as the new town square, where public officials provide important information about what they’re doing on the public’s behalf and soliciting comments in return.

Lindke v. Freed – Oral Arguments

First of all, the United States and each of the Several States are republics not democracies. While the fundamental difference has been ignored and corrupted over the years, it’s especially important in these cases. In a democracy, the people legislate directly.

Government by the people; a form of government, in which the supreme power is lodged in the hands of the people collectively, or in which the people exercise the powers of legislation.

Democracy – Webster’s 1828 Dictionary

While in a republic, the people’s sovereign power is vested in representatives elected by the people.

A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people.

Republic – Webster’s 1828 Dictionary

If we lived in a democracy, the need to dialog with public officials would not be as great since we could create laws to dictate their powers directly. In a Republic, public officials are exercising power loaned to them from their election to office. That means the need to dialog is even greater.

Second is this idea of social media platforms serving as the new “town square”, or as it is sometimes referred to, the new “public square”. The most fundamental problem with this view of social media is that it’s not publicly owned, but privately. When someone posts something on social media, it’s not equivalent of posting a broadside on the town hall or in the square around it. Rather, social media is the equivalent of your neighbor allowing people to post notices on the fence that runs along their property. The fence is still their property, so they have every right to deny individuals or content for whatever reason they deem fit. Furthermore, this metaphorical fence, with all of these posts on it, is not directly accessible via public property. In order to access many of the features, especially the ability to “dialog” with the poster, a person must have an active account on these services. Since these companies are privately owned, their property and their systems are private as well. This means that not only can these companies regulate what gets posted, but also who has access to it and to what level. For these reasons, social media is not, cannot, and never should be considered the “public square”.

Mr. Kedem, attorney for Mr. Lindke, went on with another common misunderstanding often used in the legal profession.

While public officials retain First Amendment rights, use of a private social media account does not immunize an official’s conduct from First Amendment or constitutional scrutiny.

Lindke v. Freed – Oral Arguments

Whatever these officials have done, it cannot be a violation of the First Amendment. As I’ve stated numerous times in these pages, the first five words of that amendment are “Congress shall make no law”. Since the defendant, Mr. Freed, is a city manager, not only is he not a member of Congress and his actions were not taken under a law created by Congress, there can be no First Amendment violation. If there is a violation of the right to petition, it would be of Article I, Section 3 of the Michigan Constitution:

The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.

Michigan Constitution, Article I, Section 3

Public vs Private

Mr. Mooppan, the attorney for Ms. O’Connor-Ratcliff, one of two members of the Poway Unified School District Board of Trustees, approached his argument from the other side of the issue.

Individuals who hold public office are still private citizens too. When acting in their personal capacity, they retain their First Amendment rights to decide who can participate in a community discussion that they host at their own property. They are thus free to block users from their personal social media pages, unless they chose to operate those pages in their official capacities instead.

O’Connor-Ratcliff, v. Garnier – Oral Arguments

While making the same First Amendment mistake as Mr. Kedem, Mr. Mooppan also claims that a person’s social media pages are their property. Is that true? To an extent.

The exclusive right of possessing, enjoying and disposing of a thing; ownership. …

Possession held on one’s own right.

The thing owned; that to which a person has the legal title, whether in his possession or not.

Property – Webster’s 1828 Dictionary

A person’s social media space is not owned by them, but by the social media company. This company effectively rents the space on their system, in exchange for access to the data and activity of the user. Just as the renter of an apartment has the legal authority to determine who may enter said property, the user of a social media platform has the right to determine who may enter and participate in their virtual space.

The Right to Petition

As with all of our rights, the right to petition comes with the responsibility of the consequences of those actions. In both cases the government officials claimed that in their case, the other party abused their right to petition.

In 2020, Petitioner Kevin Lindke posted disparaging remarks on Freed’s personal Facebook page. Freed deleted Lindke’s comments and blocked Lindke from the page. Lindke sued, claiming Freed violated his constitutional rights under the First Amendment.

Lindke v. Freed – Petition for Certiorari

Petitioners, two elected members of the Poway Unified School District Board of Trustees, used personal Facebook and Twitter accounts to communicate with the public about their jobs and the District. Respondents, parents of children attending schools in the District, spammed Petitioners’ posts and tweets with repetitive comments and replies. So Petitioners blocked Respondents from the accounts.

O’Connor-Ratcliff v. Garnier – Petition for Certiorari

The Crux of the Matter

In both of these cases, one party is a government employee who used their “private” social media accounts to communicate with the public about matters related to their jobs. Apparently neither of the governments that employed these people had any control over the social media accounts in question. To me, the only way to determine if these actions were public or private is to determine whether these government actors were using their private accounts to conduct government business, and if so, to what extent would that limit their control over those accounts?

Let’s step away from the social media question and look at this another way. Say a government official occasionally uses their private vehicle when conducting public business. While they were doing so, you could reasonably require they follow all government regulations. For example, if the official was using their private vehicle in a public parade, they could not deny certain individuals from approaching while allowing others full access. In a similar way, they could not deny access to public information they posted on their private page, especially if that was the primary way of communicating with the public. However, unlike a private vehicle, access to a social media content is not limited to specific posts. You either have access to view and comment or you don’t. So it’s not an exact analogy, but I think it shows the problem. To me, the real problem is not the blocking of specific accounts by government actors, but the mixing of public and private data on a platform not fully within the control of the account holder.

Conclusion

If social media platforms cannot be the “public square” and account holders can determine who is allowed to access their information, we seem to have a legal quandary. Can government actors hide or otherwise deny access and commentary to content simply by placing it on a “private” social media account? Once the government actor places official material on their private account, is that account still private? Then there’s the question of consequences for people who abuse their right to petition their government for a redress of grievance via social media?

There are several conclusions I think we can come to from this discussion. First, treating social media as a public area is not only legally dubious, but very dangerous. Since the social media companies themselves can determine whether or not a person is allowed to access or have an account on their platform, they effectively have veto power over access to information from government actors, and the ability to comment on them. If we make social media platforms the “new public square”, we effectively are allowing government to take them over. Under the Fifth Amendment, would that be a takings or a deprivation of property without due process, or both? Furthermore, does posting information on “private” social media accounts allow government actors to unilaterally deny access to said information without any due process? Would placing data on a “private” social media account violate any Freedom of Information laws? Do you see how complicated and dangerous this “public square” view of social media is?

There is a lot more to these cases than first meets the eye. Since the Supreme Court has only just heard oral arguments, it is likely to take months before they release their decision. Could all of this been avoided by state and local governments requiring that government business only be performed on government accounts, maybe with an exception for posts on private accounts that point to the publicly available information? Perhaps what we really need is a separation of social media and state?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 7, 2023

• Should foster parents see Department of Children and Families as partners or adversaries?
• Can an otherwise excellent candidate for foster children be denied the chance because of their religious beliefs?
• When the state takes responsibility for children, can they place politics above their welfare?

Studies show that the best outcomes for children is when they live in a home with their married parents. If the world were perfect, then all children would have that chance. The world isn’t perfect though, and either by accident or as the consequences of the actions of adults, children will be in need of people to step in for their parents. In our modern society, the role of finding homes for these children has been filled by the state governments. What happens when those government entities place politics above the needs of their charges? A recent case in the U.S. District Court for Massachusetts deals with that very topic. Plaintiffs Michael and Catherine Burke claim that the State of Massachusetts Department of Children and Families (DCF) discriminated, for religious reasons, against their application to become foster parents. When I looked at the case what I saw wasn’t simply religious discrimination, but DCF placing political viewpoints above not only the Constitution of Massachusetts, but what is best for the children in their care.

Foster Care

When I moved from New York City to a small town upstate, my very first friend was a boy my age who was in foster care. The details do not matter, but I remember his first foster family took care of him, but seemed distant and cold. A couple of years later, he was placed with another foster family, and I watched as my friend changed for the better. His new family was loving and kind, and helped him grow from a scared child into a young man. Along the way, I got a small glimpse into the foster care system, which is not easy for either children or parents. It takes a lot to open your home to a child, with no guarantees as to what personality traits, or even medical and psychological issues, they may bring. For people prepared to be parents and families to those who either don’t have one or whose families are dysfunctional, I tip my hat. While I am sure there are those in the foster care system more interested in the check than the child, from what I’ve seen they are the small exception. I’ve also seen reports of people in Child Services, under many different names, who seem to place what they think best above the needs of the child. This appears to be the situation in the case Burke v. Walsh.

Burke v. Walsh

Michael and Catherine Burke are described as a loving couple. After finding out they were infertile, they decided to become foster parents, hoping they may eventually adopt a child into their family.

The Burkes applied to become foster parents through the Massachusetts Department of Children and Families (DCF). They went through thirty hours of training, lengthy interviews, and assessments of their home, health, and family life.

In the end, DCF “[a]cknowledged” the “family[’s] strengths, this including their willingness to parent a child w/ moderately significant medical, mental health and behavioral needs.” … One interviewer praised how they “really seem[] to understand adoption/foster care.” …

Burke v. Walsh et. al. – Complaint

The process of becoming foster parents is not easy. There’s training to take, interviews to sit through, and numerous intrusive assessments of just about every part of the applicant’s life. All of which the Burkes appeared to pass with flying colors. Not only did one interviewer praise the Burkes’ understanding of the adoption and foster care system, but they were willing to take an otherwise difficult to place child, one with medical, mental, or behavioral needs. Sounds like the perfect candidates, don’t they?

But DCF denied the Burkes a foster care license, and, as such, their last opportunity to become parents.

Only one reason was given for that denial: they “would not be affirming to a child who identified as LGBTQIA.”

Burke v. Walsh et. al. – Complaint

I’m not sure of the statistics in Massachusetts but, in general, most foster care systems are desperate to find foster families. Mostly because there are so many more children in the system than parents willing to care for them, especially if the child has special needs. One would think that DCF would jump at the chance to have a family not only so well qualified, but willing to take on some of their more difficult cases. DCF’s reason about not affirming an “LGBTQIA” child seems quite ridiculous for a couple of reasons. First, what percentage of children in foster care in Massachusetts identify as “LGBTQIA”? Again, I don’t have numbers, but by looking at the rest of the population, my guess is only a relatively small number of children would be effected if they were to be fostered by the Burkes. Second, while not an expert on the subject, I don’t believe Massachusetts law would require DCF to place children with a family that they believe would not be philosophically compatible.

Of course, the Burkes believe there is more to them being denied a foster care license.

As DCF recorded, “Kitty and Mike are devoutly Roman Catholic and not only attend church with regular frequency, they both also work for local churches as musicians.” …

As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality.

Because of those decent and honorable beliefs, DCF decided the Burkes were not “affirming,” and therefore prohibited from fostering any child in Massachusetts.

Burke v. Walsh et. al. – Complaint

In short, the Burkes believe they are being denied a foster care license because they are faithful Roman Catholics. This seems to be supported by something the author of their license study wrote.

As the author of their license study put it, while the Burkes are “lovely people,” “their faith is not supportive and neither are they.”

Burke v. Walsh et. al. – Complaint

In other words, it was not what the Burke’s said, but the fact that their faith appears unsupportive that the author of the study concluded that they are not supportive. However, I can understand why the author of the Burke’s license study may have felt they had to see things that way. Massachusetts regulations require licensed adoptive or foster parents…

to promote the physical, mental, and emotional well-being of a child placed in his or her
care, including supporting and respecting a child’s sexual orientation or gender identity;

110 CMR 7.104(1)(d)

Yes, Massachusetts regulations require adoptive and foster families respect and support a child’s sexual orientation or gender identity. However, the complaint also noted:

Yet at the same time, DCF regulation and policy—and the Massachusetts Foster Parent Bill of Rights—all prohibit religious discrimination against potential foster parents.

Burke v. Walsh et. al. – Complaint

The Burke’s attorney points to Massachusetts law, but not their constitution. Specifically, Part the First, (that’s how they title it), Article II:

It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

MA Constitution, Part the First, Article II

Wouldn’t being denied a foster care license fall under the Burke’s being ‘hurt’ or ‘restrained’ in their liberty?

Claims for Relief

The Burke’s case lists five counts of violation of the First Amendment of the U.S. Constitution, four of the Free Exercise Clause, and one of the Free Speech Clause. In all counts, the claim is that the law is not generally applicable, a requirement under the Supreme Court’s strict scrutiny doctrine. The first four counts focus on the consideration of the Burke’s religious beliefs and using those beliefs as a justification for treating them differently than others. The last count deals with the law’s coercive requirement that adoptive/foster parents express an idea that may violate their religious beliefs. While the complaint claims that the First Amendment is incorporated against the states under the Fourteenth Amendment, I have repeatedly shown that the language of the latter amendment does not change the scope of the former.

The Burkes are asking the court to declare that DCF stop discriminating against them and any others who hold similar religious beliefs, that DCF be enjoined from withholding the Burke’s foster care license, and for legal costs & damages.

Conclusion

As this is just the initial stages of the suit, we’ll have to wait to see how things proceed. Since this case is likely to be appealed, it may take years before we get a final decision. To me, there are a couple of interesting things we should consider.

First, while I do not subscribe to the Supreme Court’s strict scrutiny doctrine, it’s most likely what the courts will use to help decide this case. I would think DCF could not prove that this was the least restrictive means necessary to achieve what the Commonwealth of Massachusetts is most likely to claim as a compelling government interest in the mental and emotional well-being of the children in foster care. After all, I would think there are plenty of children in the foster care system who would not be disturbed by the Burke’s religious beliefs, thereby allowing them to provide what appears to be a desperately needed service without harming a child. Furthermore, by denying a license to anyone with a sincere Roman Catholic faith the Commonwealth of Massachusetts is denying the mental and emotional well-being of children who share that faith.

Second, as the lawsuit points out:

As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality.

Burke v. Walsh et. al. – Complaint

With the recent attempts by the Commonwealth of Massachusetts to promote not only sexualized lifestyles in children, including denying the sex of these children, the question must be asked: Is the Commonwealth of Massachusetts placing their political agenda above the needs of the children in their care? Why does the Commonwealth appear to be focusing on the few confused children with mental health issues, to the detriment of the others? It also seems that the Commonwealth is ignoring 110 CMR 7.104(1)(e) in favor of their transgender agenda.

to respect and make efforts to support the integrity of a child’s racial, ethnic, linguistic,
cultural and religious background;

110 CMR 7.104(1)(d)

How can the Commonwealth claim to be promoting the mental and emotional well-being of the children, when they place their politicized sexual agenda above broader mental, emotional, or religious needs?

It makes me wonder if DCF is more concerned with a child’s ability to mutilate their body rather than the overall health and welfare of the child? Which begs, another question: Who is more dangerous? Religious families or the Commonwealth of Massachusetts?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 31, 2023

• When can you record a public conversation?
• Do the states have the right to prohibit you from recording a conversation in public?
• Oregon tried to restrict the ability to record conversations in public, with only a few exceptions. The Ninth Circuit opined on that law.

Do you have a right to record people in public? A recent case out of Oregon asked that very question. Can states restrict who and when people can record conversations in public? An Oregon law prohibiting recording public conversations except in certain limited circumstances, was challenged by Project Veritas. As is so often the case, both the legal challenges and judicial opinion make some questionable constitutional claims. This is why we’re going to look at the opinion of the Ninth Circuit Court Panel and decide for ourselves. Does recording the public conversations of others violate the law or does the law violate the Constitution?

Here we have an interesting situation, with tension between two apparent rights. It’s just not the rights mentioned in this case: The right to privacy vs the right to operate a recording device.

Oregon law generally prohibits unannounced recordings of conversations, subject to several exceptions. We conclude that Oregon’s law is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid on its face.

Project Veritas v. Schmidt