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Last week, The Wall Street Journal revealed that members of the intelligence community — part of the deep state, the unseen government within the government that does not change with elections — now have acquired so much data on everyone in America that they can selectively reveal it to reward their friends and harm their foes. Their principal foe today is the president of the United States.

Liberty is rarely lost overnight. The wall of tyranny often begins with benign building blocks of safety — each one lying on top of a predecessor — eventually collectively constituting an impediment to the exercise of free choices by free people, often not even recognized until it is too late.

Here is the back story.

In the pre-Revolutionary era, British courts in London secretly issued general warrants to British government agents in America. The warrants were not based on any probable cause of crime or individual articulable suspicion; they did not name the person or thing to be seized or identify the place to be searched. They authorized agents to search where they wished and seize what they found.

The use of general warrants was so offensive to our Colonial ancestors that it whipped up more serious opposition to British rule and support for the revolutionaries than the “no taxation without representation” argument did. And when it came time for Americans to write the Constitution, they prohibited general warrants in the Fourth Amendment, the whole purpose of which was to guarantee the right to be left alone by forcing the government to focus on bad guys and prohibit it from engaging in fishing expeditions. But the fishing expeditions would come.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which was intended to rein in the government spying on Americans that had been unleashed by the Nixon administration. FISA established a secret court and permitted it to issue warrants authorizing spying on agents of foreign governments when physically present in the United States.

People born in foreign countries who are here for benevolent or benign or even evil purposes have the same constitutional protections as those of us born here. That’s because the critical parts of the Constitution that insulate human freedom from the government’s reach protect “persons,” not just citizens. But FISA ignored that.

And FISA was easy for the government to justify. It was a pullback from Richard Nixon’s lawlessness. It required the feds to seek a warrant from federal judges. The targets were not Americans. Never mind, the argument went, that FISA has no requirement of showing any probable cause of crime or even articulable suspicion on the part of the foreign target; this will keep us safe. Besides, the government insisted, it can’t be used against Americans.

That argument was bought by presidents, members of Congress and nearly all federal courts that examined it. We don’t know whether the authors of this scheme really wanted federal spies to be able to spy on anyone at will, but that is where we are today. Through secret courts whose judges cannot keep records of their own decisions and secret permissions by select committees of Congress whose members cannot tell their constituents or other members of Congress what they have learned in secret, FISA has morphed so as to authorize spying down a slippery slope of targets, from foreign agents to all foreigners to anyone who communicates with foreigners to anyone capable of communicating with them.

The surveillance state regime today permits America’s 60,000 military and civilian domestic spies to access in real time all the landline and mobile telephone calls and all the desktop and mobile device keystrokes and all the digital data created and used by anyone in the United States. The targets today are not just ordinary Americans; they are justices on the Supreme Court, military brass in the Pentagon, agents in the FBI, local police in cities and towns, and the man in the Oval Office.

The British system that arguably impelled our secession in 1776 is now here on steroids.

Enter the outsider as president. Donald Trump has condemned the spying and leaking, as he is a victim of it. While he was president-elect, the spies told him they knew of his alleged misbehaviors — vehemently denied — in a Moscow hotel room. Last week, his White House staff was shaken by what the spies did with what they learned from a former Trump aide.

Trump’s former national security adviser, retired Lt. Gen. Michael Flynn, himself a former military spy, spoke to the Russian ambassador to the United States in December via telephone in Trump Tower. It was a benign conversation. He knew it was being monitored, as he is a former monitor of such communications. But he mistakenly thought that those who were monitoring him were patriots as he is. They were not.

They violated federal law by revealing in part what Flynn had said, and they did so in a manner to embarrass and infuriate Trump.

Why would they do this? Perhaps because they feared Flynn’s being in the White House, since he knows the power and depth of the deep state. Perhaps to send a message to Trump because he once compared American spies to Nazis. Perhaps because they believe that their judgment of the foreign dangers America faces is superior to the president’s. Perhaps because they hate and fear the outsider in the White House.

The chickens have come home to roost. In our misguided efforts to keep the country safe, we have neglected to keep it free. We have enabled a deep state to become powerful enough to control a powerful president. We have placed so much data and so much power in the hands of unelected, unaccountable, opaque spies that they can use it as they see fit — even to the point of committing federal felonies. Now some have boasted that they can manipulate and thus control the president of the United States by selectively revealing and concealing what they know about anyone, including the president himself.

This is a perilous state of affairs, brought about by the maniacal passion for surveillance spawned under George W. Bush and perfected under Barack Obama — all with utter indifference to the widespread constitutional violations and permanent destruction of personal liberties. This is not the government the Framers gave us. But it is one far more dangerous to human freedom than the one from which they seceded in 1776.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 

Over the past weekend, Trump administration officials offered harsh criticisms of the judicial interference with the enforcement of the president’s immigration order. The Jan. 27 order suspended the immigration privileges of all refugees from Syria indefinitely and all immigrants from seven designated countries for 90 days.

After a federal district judge in Seattle enjoined the federal government from enforcing the executive order and the 9th U.S. Circuit Court of Appeals upheld that injunction, President Donald Trump’s folks pounced.

They argued that we have an imperial judiciary that thinks it has the final say on public policy — one that will freely second-guess the president in areas that are exclusively his under the Constitution.

Here is the back story.

The Constitution provides for essentially a shared responsibility in the creation of laws. Congress passes bills, and the president signs them into law. Sometimes bills become laws over the president’s veto. Bills are often proposed by presidents and disposed of by Congress.

When challenges to the meaning or application of the laws are properly made, the judiciary decides what the laws mean and whether they are consistent with the Constitution. My point is that there are substantial roles for the legislative and executive branches in the process of lawmaking and that there is an exclusive role for the judiciary in interpreting the meaning of the law.

When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are. Congress has given him many tools with which to make and carry out those determinations.

Among those tools is substantial discretion with respect to immigration. That discretion permits the president, on his own, to suspend the immigration privileges of any person or group he believes poses a danger to national security.

Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.

Can an immigrant who has been banned from entering the United States challenge the ban?

In a word, yes. Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.

The challenge to the president’s exercise of his discretion cannot be based on a political disagreement with him or an objection to the inconveniences caused by the enforcement; it can only be based on an alleged constitutional violation. In the Seattle case, the states of Washington and Minnesota had sued the president and alleged that he had issued his Jan. 27 order to target Muslims, many of whom study or work at state universities.

Can the courts hear such a case?

In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is coequal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference — that judges’ decisions shall not be made in order to produce their own politically desired outcomes.

It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes. When the courts do this with intellectual honesty and indifference to the political outcome, they are doing their job, and we should accept the outcome.

Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?

In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake — and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.

This can be a dangerous sea for judges to navigate because judicially compelling the president to justify his development of the nation’s foreign policy might expose that development to unwanted eyes and ears who could cause the nation ill in perilous times.

Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries. That would clearly justify the president’s executive order, but it would be foolhardy for him to explain in a court how he came to know that and detrimental to then have to await a court’s approval while the evildoers arrive here.

In our democracy, the president and members of Congress make promises and then convince us that they have kept them so we will re-elect them. The whole purpose of an independent judiciary is to be anti-democratic — to protect the life, liberty and property of all people from the unconstitutional behavior of the two political branches of the government. When the judiciary does this, it is not being imperial; it is doing what the Constitution requires. If this were not the case, then nothing would prevent the political branches from trampling the rights of an unpopular minority.

The late Justice Robert Jackson once famously quipped that the Supreme Court is infallible because it is final; it is not final because it is infallible. But that infallibility — if you will — must be tempered by fidelity to the rule of law, which demands the intellectual honesty and political indifference that the Constitution requires for the personal freedoms of all of us to survive.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 

Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota — after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries — asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president’s order everywhere in the United States.

The president reacted with anger, referring to the judge as a “so-called judge,” and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him — that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees.

Here is the back story.

A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.

When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call “standing.” Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case.

Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump’s order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant.

Nevertheless, the Seattle federal judge heard oral argument on the two states’ emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, “None.”

He was wrong.

There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant — and hence the answer meaningless — because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing — substituting the judicial mind for the presidential mind — that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy.

These rules and policies — the requirement of standing before suing and the primacy of the president in making foreign policy — stem directly from the Constitution. Were they not in place, then anyone could sue the government for anything and induce a federal judge to second-guess the president. That would convert the courts into a super-legislature — albeit an unelected, unaccountable, opaque one.

I am not suggesting for a moment that the courts have no place here. Rather, they have a vital place. It is to say what the Constitution means, say what the statutes mean and determine whether the government has exercised its powers constitutionally and legally. It is not the job of judges to decide whether the government has been smart or prudent, though.

One of the arguments made by the state of Washington to explain why it had standing was laughable. Washington argued that corporations located in Washington would suffer the irreparable loss of available high-tech-qualified foreign employees if the ban were upheld. Even if this were likely and even if it were provable, it would not establish injury in fact to the government of Washington. When pressed to reveal what entity Washington was trying to protect, it enumerated a few familiar names, among which was Microsoft.

Microsoft? The government of the state of Washington is suing to protect Microsoft?! Microsoft could buy the state of Washington if Starbucks were willing to sell it.

I jest to make a point. The rule of law needs to be upheld. Carefully paying attention to constitutional procedure protects personal freedom. In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts’ only concern is with the latter.

The DOJ is now challenging the Seattle restraining order in the 9th U.S. Circuit Court of Appeals, and this case may make its way to the Supreme Court. Will federal judges be faithful to the rule of law? We shall soon find out.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 

This past weekend, we all saw massive public outrage in major cities throughout the country. It was directed at the Jan. 27 issuance of an executive order, signed by President Donald Trump, addressing immigration. With the executive order, the president ordered the suspension of entry of all refugees to the United States for 120 days, as well as anyone from Syria for an indefinite period and anyone from Iran, Iraq, Libya, Somalia, Sudan and Yemen for 90 days.

The crowds of protesters, which included members of Congress, called the president a tyrant. The president argued that he was lawfully protecting the country from those who might facilitate terrorist attacks here. Can he legally do this?

Here is the back story.

The Constitution expressly gives Congress the power to regulate naturalization, which is the process of becoming an American citizen. It does not expressly give it the power to regulate immigration, which is the process of legally entering the country. From 1776 to 1882, Congress recognized this distinction by staying largely silent on immigration, and thus, anyone could come here from anywhere, with the only real regulation being for public health.

In 1882, Congress gave itself the power to regulate immigration, contending that although the Constitution was silent on the issue, the concept of nationhood gave Congress the ability to regulate the nation’s borders and thereby control who was permitted to enter from foreign countries and under what circumstances.

In response to economic competition from Asian immigrants in California — and in the midst of anti-Asian racial animus — Congress passed the Chinese Exclusion Act of 1882, which limited the number of immigrants from China for 10 years. In 1892, Congress extended the law for another 10 years, and in 1902, Congress made the law permanent. In 1924, Congress passed the Johnson-Reed Act, which restricted entry into the United States through quotas with respect to national origins. The quotas were capped in 1929, reduced in 1943 and substantially expanded in 1965.

In 1952, Congress passed the Immigration and Nationality Act, which expressly authorized the president to suspend the immigration of any person, class of people or group of people into the United States for public health, public safety or national security reasons.

The courts have upheld this presidential power because under our system, immigration materially affects the nation’s foreign policy and foreign policy is constitutionally the domain of the president — with Congress’ role being limited to the senatorial confirmation of treaties and ambassadors and to authorization of money for the president to spend. Yet the courts have limited the president’s exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant’s political views, religion or colleagues.

In 1979, President Jimmy Carter exercised this presidential power to bar anyone from Iran from entering the country until the hostage crisis was resolved. In 2011, President Barack Obama used this presidential power to bar anyone from Iraq from entering the country for six months.

Enter President Trump.

As a candidate, Trump promised that he would secure the nation’s borders from those whom he deems harmful to national security for limited periods of time — at least until he and those under him could determine a more accurate mechanism for separating the true refugees from the ones seeking entry for nefarious purposes. On his eighth day in office, he did just that.

The reaction was swift, loud and seemingly everywhere as foreign-born people, many with green cards and visas, were stopped and detained at the nation’s international airports last Saturday. Over the weekend, federal judges in New York City, Boston, Virginia and Seattle ruled that Trump’s order could not apply to green card holders or those who received valid State Department-issued visas based on the pre-executive order protocol.

To its credit, the government recognized that the language of the executive order needed to be clarified because green card holders, no matter the country of origin, have the same right of exit and entry as citizens. Moreover, the government cannot constitutionally give anyone a benefit — such as a visa — and then nullify the benefit because it changed the issuing standards afterward. So the Trump changes can be prospective only.

Where does this leave us?

Expect numerous challenges in Congress and in the courts to Trump’s order because, the challengers will argue, though its stated purpose was not to bar a religious group, its effect is largely to bar Muslims. For sure, the courts will address this. The purpose/effect distinction — which exists in many areas of the law, such as school desegregation, legislative apportionment and voting rights — has not been accepted by the courts against a president for a temporary immigration ban because the courts have often deferred to presidents on foreign policy.

Is the ban just?

Everyone knows we are a nation of immigrants. Three of my grandparents immigrated here as children. Most people recognize that all people have the natural right to travel, which means they can seek entry here; but the country has accepted the ideas that our borders are not open, that the welfare state here is not without financial limits and that in perilous times such as today, immigration is largely and legally in the hands of the president, whether one has voted for him or not.

Yet like all governmental powers, particularly those that often clash with natural rights when they are exercised, the power to regulate immigration must be exercised narrowly. Many reading this are here because someone left another country for the freedoms that are respected here. Those freedoms are natural to everyone and will always draw people here.

The government can only morally and constitutionally interfere with personal freedom for the most compelling of reasons and utilizing the least restrictive means. Is the government faithful to that well-recognized rule? We shall soon see.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Immigration 

Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (Obamacare) in ways that are revolutionary.

With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor’s administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it?

Here is the back story.

When Obamacare went through Congress in 2010, all Democrats in Congress supported it and all congressional Republicans were opposed. The crux of their disagreement was the law’s command that everyone in the United States obtain and maintain health insurance — a command that has come to be known as “the individual mandate.”

Republicans argued that Congress was without the authority to compel people to enter the marketplace by purchasing a product — that such decisions should be freely made by individuals and that that freedom was protected from governmental interference by the Constitution. Democrats argued that the commerce clause of the Constitution, which permits Congress to regulate commerce among the states, also permits it to compel commercial activity on the part of individuals who make up a highly regulated component of interstate commerce.

To ensure compliance with the individual mandate, the law provided that the IRS would collect the fair market value of a bare-bones insurance policy from those who did not obtain and maintain one. The government would then take that money and purchase a health insurance policy for that individual who rejected the law’s command.

Though Congress did not call it a tax and the government’s lawyers uniformly and consistently denied in all courts where it was challenged that it was a tax and President Barack Obama rejected the idea that it was a tax and even the lawyers for the challengers denied it was a tax, a 5-4 majority in the Supreme Court characterized the money collected by the IRS from noncompliant individuals as a tax.

This is profoundly significant for constitutional purposes because though Congress cannot regulate anything it wants, Congress can tax anything it wants, as long as the tax falls equally on those in the class of people who are paying it.

This unheard-of characterization of a non-tax as a tax was necessary to salvage Obamacare before the high court because a different 5-4 majority in the same case ruled that the Republican congressional argument was essentially correct — that the commerce clause does not empower Congress to compel commercial activity.

All of this has been debated loud and long since the law was enacted in 2010, validated by the Supreme Court in 2012 and came into Trump’s crosshairs in the Republican presidential primaries and again in the general election campaign.
Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone’s right to purchase a lawful good or not to purchase one. He also asserted that Obamacare does not make economic sense because its regulation of the practice of medicine and its administration of health insurance have resulted in a diminution of choices for consumers, which in turn has raised premiums, as well as deductibles, and chased primary care physicians from the marketplace. The Obama mantra that you could keep your doctor and your health insurance under Obamacare proved to be patently false, Trump argued.

When Trump promised that as president — on “day one” — he would begin to dismantle Obamacare, some Republicans, many members of the press and most Democrats laughed at him. They are laughing no longer because the first executive order he signed on Jan. 20 directed those in the federal government who enforce Obamacare to do so expecting that it will soon not exist.

He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?

Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government’s laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of Obamacare. It is utterly without precedent since Jefferson’s presidency.

Trump’s revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit — that they can be and have been wrong. It is exactly as Trump promised.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Obamacare 

On Jan. 3, outgoing Attorney General Loretta Lynch secretly signed an order directing the National Security Agency — America’s 60,000-person-strong domestic spying apparatus — to make available raw spying data to all other federal intelligence agencies, which then can pass it on to their counterparts in foreign countries and in the 50 states upon request. She did so, she claimed, for administrative convenience. Yet in doing this, she violated basic constitutional principles that were erected centuries ago to prevent just what she did.

Here is the back story.

In the aftermath of former President Richard Nixon’s abusive utilization of the FBI and CIA to spy on his domestic political opponents in the 1960s and ’70s — and after Nixon had resigned from office in the wake of all that — Congress passed the Foreign Intelligence Surveillance Act, which created a secret court that was charged with being the sole authority in America that can authorize domestic spying for non-law enforcement purposes.

The standard for a FISA court authorization was that the subject of the spying needed to be a foreign person in the United States who was an agent of a foreign power. It could be a foreign janitor in a foreign embassy, a foreign spy masquerading as a diplomat, even a foreign journalist working for a media outlet owned by a foreign government.

The American spies needed a search warrant from the FISA court. Contrary to the Constitution, the search warrant was given based not on probable cause of crime but rather on probable cause of the status of the person as an agent of a foreign power. This slight change from “probable cause of crime” to “probable cause of foreign agency” began the slippery slope that brought us to Lynch’s terrible order of Jan. 3.

After the Foreign Intelligence Surveillance Act, numerous other statutes were enacted that made spying easier and that continued to erode the right to be left alone guaranteed by the Fourth Amendment. The Patriot Act permitted FBI agents to write their own search warrants for business records (including medical, legal, postal and banking records), and amendments to FISA itself changed the wording from probable cause “of foreign agency” to probable cause of being “a foreign person” to all Americans who may “communicate with a foreign person.”

As if Americans were children, Congress made those sleight-of-hand changes with no hoopla and little serious debate. Our very elected representatives — who took an oath to preserve, protect and defend the Constitution — instead perverted it.

It gets worse.

The recent USA Freedom Act permits the NSA to ask the FISA court for a search warrant for any person — named or unnamed — based on the standard of “governmental need.” One FISA court-issued warrant I saw authorized the surveillance of all 115 million domestic customers of Verizon. The governmental need standard is no standard at all, as the government will always claim that what it wants, it needs.

All these statutes and unauthorized spying practices have brought us to where we were on Jan. 2 — namely, with the NSA having a standard operating procedure of capturing every keystroke on every computer and mobile device, every telephone conversation on every landline and cellphone, and all domestic electronic traffic — including medical, legal and banking records — of every person in America 24/7, without knowing of or showing any wrongdoing on the part of those spied upon.

The NSA can use data from your cellphone to learn where you are, and it can utilize your cellphone as a listening device to hear your in-person conversations, even if you have turned it off — that is, if you still have one of the older phones that can be turned off.

Notwithstanding all of the above gross violations of personal liberty and constitutional norms, the NSA traditionally kept its data — if printed, enough to fill the Library of Congress every year — to itself. So if an agency such as the FBI or the DEA or the New Jersey State Police, for example, wanted any of the data acquired by the NSA for law enforcement purposes, it needed to get a search warrant from a federal judge based on the constitutional standard of “probable cause of crime.”

Until now.

Now, because of the Lynch secret order, revealed by The New York Times late last week, the NSA may share any of its data with any other intelligence agency or law enforcement agency that has an intelligence arm based on — you guessed it — the non-standard of governmental need.

So President Barack Obama, in the death throes of his time in the White House, has delivered perhaps his harshest blow to constitutional freedom by permitting his attorney general to circumvent the Fourth Amendment, thereby enabling people in law enforcement to get whatever they want about whomever they wish without a showing of probable cause of crime as the Fourth Amendment requires. That amendment expressly forbids the use of general warrants — search where you wish and seize what you find — and they had never been a lawful tool of law enforcement until Lynch’s order.

Down the slope we have come, with the destruction of liberty in the name of safety by elected and appointed government officials. At a time when the constitutionally recognized right to privacy was in its infancy, Justice Louis Brandeis warned all who love freedom about its slow demise. He wrote: “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

Someday we will learn why Obama did this. I hope that when we do, it is at a time when we still have personal liberty in a free society.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Barack Obama, Government Surveillance, NSA 

The criminal investigation of Hillary Clinton is back front and center now that the FBI has released proof that her failure to safeguard state secrets caused the secrets to fall into the hands of foreign governments, some of which wish the United States ill.

Even though the case against her — which was closed and then reopened and then closed again — is old news and she obviously is no longer a candidate to become president of the United States and has been staying below the radar for the past two months, recent developments have regenerated the case.

Here is the back story.

On July 5, FBI Director James Comey announced publicly that the FBI would recommend against seeking an indictment of Clinton for espionage — the failure to safeguard state secrets that had been entrusted to her. He argued that though the case against her was strong — as secretary of state, she had been extremely careless with secrets; exposed hundreds of materials that were confidential, secret and top-secret; and used non-secure mobile devices while in the territory of hostile governments — no reasonable prosecutor would take the case.

Why was the decision of whether to prosecute Clinton left to Comey?

The FBI’s job is to gather evidence of federal crimes and to present that evidence to career prosecutors in the Department of Justice for evaluation. The FBI has numerous investigative tools available to it. One of those tools is presenting evidence to a grand jury and requesting subpoenas from it. Another is presenting evidence to a federal judge and requesting search warrants from the judge. A third is obtaining the indictment of someone who is in the inner circle of the person who is the true target of the investigation and then persuading that indicted person to become a government witness.

None of those tools was used in the Clinton case.

As well, a major interference with the case occurred when Attorney General Loretta Lynch agreed to meet privately with former President Bill Clinton. He was — and still is — also the subject of an FBI criminal investigation. Though both Lynch and Mr. Clinton denied talking about the investigations, the attorney general took herself and senior DOJ management off the Hillary Clinton case, leaving the FBI director with the authority to decide whether to prosecute. So based on Comey’s decision that no reasonable prosecutor would take the case against Mrs. Clinton, it was closed.

The case was briefly reopened 11 days before Election Day. The FBI announced it had stumbled upon a potential treasure-trove of emails contained in a laptop jointly owned and used by Hillary Clinton’s closest aide, Huma Abedin, and her husband, former Rep. Anthony Weiner. The FBI believed at the time that the laptop contained nearly every email Abedin had received from Clinton. Weiner was under investigation for various sexual crimes, and the FBI had obtained the laptop in its search for evidence against him.

Then, a week later, the FBI announced that it had found nothing among the 650,000 emails in the laptop that would cause it to reopen the Clinton case, and it closed the case a second time.

Donald Trump argued during the last weeks of the presidential election campaign that Clinton had exposed state secrets to hostile foreign governments. FBI agents who disagreed with their boss’s decision not to seek the indictment of Clinton made the same arguments. Clinton denied vehemently that she had caused any state secrets to pass into the hands of hostile foreign governments.

Then Trump was elected president of the United States.

Then Clinton left the public scene.

Then, last Sunday evening, during the NFL playoff game between the New York Giants and the Green Bay Packers, the FBI posted on its website more than 300 emails that Clinton had sent to an unnamed colleague not in the government — no doubt her adviser Sid Blumenthal — that had fallen into the hands of foreign powers. It turns out — and the Sunday night release proves this — that Blumenthal was hacked by intelligence agents from at least three foreign governments and that they obtained the emails Clinton had sent to him that contained state secrets. Sources believe that the hostile hackers were the Russians and the Chinese and the friendly hackers were the Israelis.

Last Sunday’s revelations make the case against Clinton far more serious than Comey presented it to be last summer. Indeed, Sen. Jeff Sessions, who has been nominated by Trump to be attorney general and who has been a harsh critic of Clinton’s, told the Senate Judiciary Committee this week that he would step aside from any further investigation of Clinton, thereby acknowledging that the investigation will probably be opened again.

One of the metrics that the DOJ examines in deciding whether to prosecute is an analysis of harm caused by the potential defendant. I have examined the newly released emails, and the state secrets have been whited out. Yet it is clear from the FBI analysis of them that real secrets were exposed by the nation’s chief diplomat — meaning she violated an agreement she signed right after she took office, in which she essentially promised that she would not do what she eventually did.

The essence of the American justice system is the rule of law. The rule of law means that no one is beneath the law’s protections or above its obligations.

Should Clinton skate free so the Trump administration can turn the page? Should the new DOJ be compassionate toward Clinton because of her humiliating election loss and likely retirement from public life? Of course not. She should be prosecuted as would anyone else who let loose secrets to our enemies and then lied about it.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: 2016 Election, Hillary Clinton 

Over the New Year’s weekend, President Barack Obama’s chief policy adviser and closest strategist, Valerie Jarrett, told a talk show host that her boss would have a happy legacy because there was an absence of scandal in his administration. When first I heard this preposterous claim, I thought I had misheard it. Yet it is apparently true that President Obama and his team somehow can overlook recent history and behave as if events with which we are all familiar never happened.

Here is the back story.

When Obama became president in 2009 and enjoyed significant Democratic majorities in both houses of Congress, he and his colleagues devoted themselves entirely to an issue nowhere in the Constitution — health care. They did not address other issues dear to them and their base, such as guns, abortion, taxes, war, jobs and civil liberties. Rather, they sought to alter radically the relationship of the federal government to every person in America by imposing upon each of us the obligation to purchase a product — namely, health insurance — whether we wanted it or not.

The abominable statute they enacted, which has caused millions of folks to lose their primary care physician and millions more to see their premiums skyrocket and still millions more to see their full-time jobs become part-time, has acquired the nickname Obamacare.

Instead of reducing taxes or regulations or spending so more folks would have better-paying jobs, the president and his folks were determined to tell us all how to stay healthy. Obamacare passed on a party-line vote, with not a single vote to spare in the Senate.

At the time it was enacted, the president argued vociferously that the financial consequence of not obtaining health insurance — the penalty for disobeying the law — was not a tax. He made that argument because he had promised Democrats — many of whom lost their congressional seats for going along with his utopian experiment — that he would not raise taxes to accomplish his purposes.

When the statute was challenged in the federal courts and the various challenges were consolidated before the Supreme Court, the challengers did not dispute the claim that the penalty was not a tax. A court cannot consider arguments or evidence not put to it. For instance, in an automobile accident, if all eyewitnesses state that a traffic light in question was green at the time of the collision, the court may not find that it was red.

Yet notwithstanding agreement among the parties before the Supreme Court and notwithstanding the absence of any evidence that the penalty was a tax, the Supreme Court made new law by declaring this non-tax to be a tax and then ruling that Congress can tax anything it wants — so Congress can force you to purchase a product you don’t want by taxing you if you fail to make the purchase.

None of this is new. It is the president’s known legacy. It is a legacy of the colossal failure of the central planning of one-fifth of the economy. It has resulted in an expansion of federal powers and a reduction in the availability of health care providers and is yet another glaring rejection of the Constitution as the supreme law of the land.

While all of this was going on, the scandals Jarrett overlooked were brewing. Operation Fast and Furious, which began in the George W. Bush administration, exploded under Obama, when the guns the feds intentionally had let slip into the hands of Mexican gangs were used to kill one of their own.

Then came Libya, where heavy armaments the feds secretly had passed into the hands of terrorists masquerading as rebels were used to kill the U.S. ambassador and topple a friendly government.

Then came the seizure of telephone records of journalists critical of the administration by the Department of Justice, which secretly convinced a federal judge that talking to a whistleblower and reporting on his questionable behavior somehow involved reporters criminally in that behavior.

Then came the targeting by the IRS of conservative advocacy groups by denying them tax-exempt status for political reasons.

Then came the Secret Service scandal in which dozens of agents were caught in sexual encounters on foreign trips in hotels where the president was staying — encounters that involved the loss of laptops and itineraries and jeopardized the president’s physical safety — and two directors lost their jobs.

Then came the Edward Snowden revelations that the government was capturing every keystroke of every person using every computer and mobile device in the United States yet was still failing to keep us safe and that a senior Obama official had lied about this under oath. And all this was done without the approval of Congress, using a secret court that rationalized its way around the Constitution.

While all this was happening, the president was secretly using drones to kill Americans and others in foreign lands — folks never charged with crimes — using laughable legal authority as justification. Also, then-Secretary of State Hillary Clinton was exposing state secrets — including the names and whereabouts of undercover American agents — to friend and foe alike, and the FBI declined to recommend prosecution. And while Clinton was under investigation, her husband, former President Bill Clinton, had a private meeting on an airport tarmac with the attorney general — whom he had once appointed a U.S. attorney — at which they claim they discussed their grandchildren.

Which legacy is worse, failure or scandal? Is it any wonder Donald Trump tapped into the raw nerves of the folks the president and the Democrats forgot about and rode their anger to victory? Americans today are less free, less prosperous, less safe and trillions more in debt than we were eight years ago. Can Trump effectively change course after so much damage has been done? We soon will know.

Copyright 2017 Andrew P. Napolitano.

 
• Category: Ideology • Tags: Barack Obama 

1) In 2017, President Donald Trump and the Republican-controlled Congress will

a. repeal Obamacare entirely.

b. squabble among themselves and make only cosmetic changes to Obamacare.

c. retain the core of Obamacare because President Trump will have a change of heart.

d. repeal Obamacare and replace it with a combined soft free market and soft socialist version.

2) At the end of 2017

a. more American troops will be deployed around the world than are today.

b. the United States will be directly involved in a land war in Syria.

c. the United States will renounce its membership in NATO.

d. all American combat troops will be back home in the United States.

3) In 2017, President Trump will

a. issue more executive orders than President Barack Obama did in eight years.

b. direct the IRS to lower the top tax rate to 30 percent.

c. appoint New Jersey Gov. Chris Christie to the President’s Council on Physical Fitness, Sports and Nutrition.

d. be very, very presidential.

4) In 2017, the Supreme Court will

a. reverse Roe v. Wade, thereby handing off the abortion controversy to the states.

b. find that the right to carry arms outside the home is protected by the Second Amendment.

c. invalidate the congressional repeal of Obamacare.

d. have its oral arguments televised.

5) In 2017, President Trump and Russian President Vladimir Putin will

a. race to see who can hack the other more often.

b. proclaim their personal and eternal friendship to each other.

c. agree to produce a shirtless 2018 calendar together.

d. meet once in Washington and once in Moscow and once at Mar-a-Lago.

6) In 2017, WikiLeaks will release

a. secret tapes of the meeting in Trump Tower between Trump and Kanye West.

b. Hillary Clinton’s favorite yoga positions.

c. proof that Bill Clinton is a crook.

d. emails showing where President Obama was born.

7. In 2017, President Trump will

a. wage a hostile takeover of NBC.

b. fire Lorne Michaels and hire the entire “Saturday Night Live” cast to work for the Trump Organization.

c. pick more fights than a fourth-grade schoolyard bully.

d. start building the wall.

8) In 2017, Gov. Christie will

a. attempt professional wrestling for his next career.

b. try a cable TV gig and hate it because it is too much work.

c. become a roadie for Bruce Springsteen’s next tour.

d. become the general manager of the George Washington Bridge.

9) In 2017, Sen. Ted Cruz will

a. cause another government shutdown.

b. announce that he will challenge President Trump in 2020.

c. be appointed to the Supreme Court.

d. face a very serious challenge by a popular and wealthy Republican congressman from Texas.

10) In 2017, President Trump will begin his “Get to Know Me” tour by

a. listening to Hillary Clinton stump speeches.

b. sitting through a dinner with Mitt Romney and Mitch McConnell arguing about Federal Reserve policy.

c. giving a lecture at Princeton University about how bad a president Woodrow Wilson was.

d. hosting “Saturday Night Live.”

11) In 2017, the news media will

a. embrace fake news 24/7 by establishing formal fake news outlets.

b. make billions covering the Trump administration.

c. be ostracized by President Trump.

d. largely be very frustrated as President Trump bypasses and ignores them.

12) In 2017, former President Obama will

a. start a health insurance company.

b. become the president of the University of Chicago.

c. show up everywhere.

d. be shunned by fellow Democrats.

13) In 2017, the World Series will be won by

a. the New York Yankees, after A-Rod rejoins the team.

b. the Boston Red Sox.

c. the Los Angeles Dodgers.

d. the San Francisco Giants, after Nancy Pelosi and her superrich husband buy the team.

14) In 2017, the Super Bowl will be won by

a. the Dallas Cowboys.

b. the New York Giants, after Eli Manning throws a 99-yard Hail Mary that Odell Beckham Jr. catches with his feet.

c. the New England Patriots, after another cheating scandal.

d. the Detroit Lions.

15) In 2017, global warming will be

a. embraced by President Trump.

b. exposed as a hoax.

c. largely forgotten.

d. the subject of another encyclical by Pope Francis.

16) One year from today

a. Pope Francis will be voluntarily retired and living as a simple parish priest in a slum in Buenos Aires.

b. divorced and remarried Catholics will lawfully be able to receive the Holy Eucharist.

c. Roman Catholic cardinals will have deposed Pope Francis for heresy.

d. Antonin Scalia will be on his way to formal sainthood.

17) One year from today

a. the United States will have imposed a 50 percent tariff on all goods made in China.

b. the Federal Reserve will be retaining artificially low interest rates.

c. more Americans will keep their cash in shoe boxes than in banks.

d. bank bankruptcies will be happening once a week.

18) One year from today

a. we will all know how wealthy President Trump is — or isn’t.

b. Al Gore will have announced that he will be running for president in 2020.

c. the Islamic State group will be history.

d. the current mayor of New York City and the current governor of New York state will be cellmates in a federal prison.

19) One year from today

a. Hillary and Bill Clinton will have been indicted by a federal grand jury for operating a criminal enterprise.

b. Roger Clemens will be in the Baseball Hall of Fame.

c. the Trump family will have established Mar-a-Lago as the official White House.

d. more people will be on Obamacare than were in 2016.

20) In the long run

a. everything the government has it has stolen.

b. everything the government says is a lie.

c. that government is best which governs least.

d. all of the above are true.

My choices are 1b, 2a, 3d, 4d, 5d, 6c, 7d, 8b, 9d, 10d, 11d, 12d, 13c, 14a, 15a, 16a, 17b, 18c, 19d and 20d.

Happy new year.

 
• Category: Ideology • Tags: Donald Trump 

What if Christmas is a core value of belief in a personal God who lived among us and His freely given promise of eternal salvation that no believer should reject or apologize for? What if Christmas is the rebirth of Christ in the hearts of all believers? What if Christmas is the potential rebirth of Christ in every heart that will have Him, whether a believer or not?

What if Jesus Christ was born about 2,000 years ago in Bethlehem? What if He is true God and true man? What if this is a mystery and a miracle? What if this came about as part of God’s plan for the salvation of all people? What if Jesus was sent into the world to atone for our sins by offering Himself as a sacrifice? What if He was sinless? What if His life was the most critical turning point in human history? What if the reason we live is that He died?

What if after He died, He rose from the dead? What if He was murdered by the government because it feared a revolt if it did not murder Him? What if the government thought He was crazy when He said He is a king but His kingdom is not of this world? What if He was not crazy but divine? What if when He said that He could forgive sins, He was referring to Himself as God?

What if He is one of the three parts of a triune God? What if this is an inexplicable mystery? What if there is no power without mystery? What if the power He possessed, He exercised only for the good? What if He truly gave sight to the blind, hearing to the deaf, musculature to the lame, hope to the disillusioned, courage to the weak and even life to the dead?

What if He freely did these things but sought no acclamation for them? What if after each of these miracles, He disappeared into the temple precincts or walked well past the crowd, lest the crowd hail him as a temporal or secular leader?

What if there was in that towering personality a deep thread of shyness? What if He was shy about His Godness? What if He was shy about His goodness? What if He loved saving us? What if He was joyful but did not want us to see His joy?

What if He knew all along how profoundly untimely and utterly painful the end of His life on earth would be but He neither feared nor avoided it? What if His greatest display of love was self-restraint on the Cross?

What if most of the world that He came to save has rejected Him? What if He still loves those who have rejected Him? What if He still offers them salvation? What if His offer is real and forever?

What if many folks today have rejected the true God for government-as-god? What if the government-as-god has set itself up as providing for all secular needs in return for fidelity to it? What if this seductive offer has been accepted by millions in America?

What if the acceptance of this seductive offer of government-as-god has ruined individual initiative, destroyed personal work ethic, fostered cancerous laziness, enhanced deep poverty and impelled thoughtless obedience to government in those who have accepted it? What if the defiance inherent in the belief of government-as-god chills the exercise of personal freedoms for fear of the loss of the government’s munificence? What if government charity is really munificence with money it has taken from those who work and earn it? What if it’s then given to those who don’t? What if it is impossible to be truly charitable with someone else’s money?

What if Jesus came to set us free from the yoke of government oppression and the chains of personal sin? What if freedom is our birthright, given to us by the true God, not by the government-as-god? What if the true God made us in His own image and likeness? What if the most similar likeness between us mortals and the true God is freedom? What if just as God is perfectly free, so are we perfectly free? What if we have failed to preserve freedom and have permitted governments to take it from us? What if we are not full people without full freedom?

What if the world was full of darkness before He came into it? What if there is darkness still today but yet much light? What if we recognize that He is the Light of the World? What if Christmas is the birthday of the Son of God and the Son of Mary? What if we recognize the presence of the Son of God and the Son of Mary in our hearts and among us? What if the God-as-baby whose birthday we celebrate is the Savior of the World? What if we don’t mask this but live it?

What if we say with our hearts and mean with our words — Merry Christmas?

Copyright 2016 Andrew P. Napolitano. Distributed by Creators.com.

 
• Tags: Christianity 
Andrew Napolitano
About Andrew Napolitano

Judge Andrew P. Napolitano is a graduate of Princeton University and the University of Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, when he presided over more than 150 jury trials and thousands of motions, sentencings, and hearings. Judge Napolitano taught constitutional law and jurisprudence at Delaware Law School for two years and at Seton Hall Law School for 11 years. He was often chosen by the students as their most outstanding professor. He returned to private practice in 1995, and began television work in the same year.

As Fox News’ Senior Judicial Analyst since 1998, Judge Napolitano broadcasts nationwide on the Fox News Channel throughout the day, Monday through Friday. He is nationally known for watching and reporting on the government as it takes liberty and property.

Judge Napolitano lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in the New York Times, the Wall Street Journal, the Los Angeles Times, and numerous other publications. His weekly newspaper column is seen by millions every week.

The Judge is the author of seven books on the U.S. Constitution, two of which have been New York Times best sellers. His most recent book is Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.


PastClassics
The “war hero” candidate buried information about POWs left behind in Vietnam.
The unprecedented racial transformation of California and its political consequences.