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“The constitutionally guaranteed ‘freedom to be intellectually … diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”

– Supreme Court of the United States in Street v. New York (1969)

Sometimes the public expression of unwanted ideas reaches directly into our living rooms. When President Donald Trump attacked a half-dozen or so professional football players who, instead of standing during the traditional playing of the national anthem prior to football games, “took a knee” by kneeling on one or both of their knees during the anthem, hundreds more players on national television took a knee in defiance of the president.

Here is the back story.

Last year, a quarterback for the San Francisco 49ers, Colin Kaepernick, began quietly taking a knee at NFL games to protest what he said was the excessive use of force by police. He was the subject of mild but largely below-the-radar criticism by those who thought sincerely that taking a knee publicly during the playing of the national anthem was a sign of disrespect for the flag and the anthem and thus for this country.

When a few of his buddies and former colleagues — he is no longer a member of an NFL team — followed suit for a variety of reasons, all of which centered around the right to protest the policies of the government, Trump saw a political opening.

At a rally in Alabama last month, Trump aggressively attacked the practice of taking a knee. He argued that it was so disrespectful to the American flag and the national anthem that those who had taken a knee should be fired from their jobs.
This pronouncement focused a spotlight on the six or so scattered players who had followed Kaepernick’s lead, and soon hundreds were doing so. The president took their behavior as an affront to him and to the nation, and he persisted in his attacks on the players. Soon, some team owners joined their players in various means of expressing solidarity with those who had taken a knee.

When the players union backed up these silent expressions of political opinions, it argued that all of its members have a constitutional right to express themselves in uniform in their workplace. Do they? The short answer is that it depends on where the players are when they take a knee.

Some jurisdictions — such as California, the District of Columbia, New Jersey and New York — give more protection to employees for expressive conduct in the workplace than others do. When the expressive conduct — taking a knee, bowing one’s head, locking arms with colleagues — occurs in the workplace, the issue is not necessarily one of free speech, because the First Amendment only comes into play when the government itself is accused of infringing upon or compelling speech. In the NFL, the alleged infringers of speech or compellers of speech are team management, not the government.

Expressive conduct — lawful behavior that offers a political opinion — is the constitutional equivalent of free speech. So interfering with expressive conduct or commanding its cessation in conformity to management’s political or patriotic views constitutes interfering with speech. May employers do that?

In states where expressive conduct in the workplace is protected, employees may express themselves as long as they do not materially interfere with the business of the workplace. In states without that employee protection, they may not do so.
So in states such as Texas, an employee who refuses to comply with an instruction from management to conform to certain behavior in public — e.g., standing during the playing of the national anthem — can be disciplined, as Texas lacks the added protections for individual workplace expressions that a few states provide.

However, even in the states that lack the employee expression protection, if management’s instructions to conform require conformance on property that the government owns, such as a publicly owned stadium, then management is treated constitutionally as if it were the government. Just as the government cannot interfere with speech to suppress its content or to compel conformity, neither may team management when teams play on government-owned land.

Thus, in states where the government owns the stadiums or where expressive conduct in the workplace is protected, employees may engage in expressive conduct in defiance of management, as long as their conduct does not interfere with the workplace. Just as the government may interfere with speech for non-content-related reasons — for example, noise at night or safety in a crowd — management may interfere with speech when the speech itself interferes with the business of the workplace.

If team management could show that taking a knee materially interferes with the workplace product — money for the owners resulting from players winning football games — because it chases away ticket buyers or reduces advertising or media revenue or impairs team morale and thus produces poor play, it would have a strong case, even in the states with employee protection laws and even in venues owned by the government.

In the famous flag burning cases a few years ago, the Supreme Court made clear that in America, we have no revered symbols that command orthodox respect. The flag itself represents the right to treat it as one wishes. We are free to respect the flag and to shun those who do not, but we may not harm a hair on their heads.

I am with the French philosopher Voltaire, who, regarding folks who had literally lost their heads, is reputed to have said, “I disagree with what you say, but I will defend to the death your right to say it.”

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Constitutional Theory, Freedom of Speech 
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Here we go again. The United States has been rattled to the core by an unspeakable act of evil perpetrated by a hater of humanity. A quiet, wealthy loner rented a hotel suite in Las Vegas, armed it with shooting platforms and automatic weapons, knocked out two of the windows, and shot at innocents 32 floors below. Fifty-nine people were murdered, and 527 were injured.

The killer used rifles that he purchased legally and altered illegally. He effectively transformed several rifles that emit one round per trigger pull and present the next round in the barrel for immediate use (semiautomatics) into rifles that emit rounds continuously when the trigger is pulled — hundreds of rounds per minute (automatics). Though some automatic rifles that were manufactured before 1986 can lawfully be purchased today with an onerous federal permit, automatic weapons generally have been unlawful in the United States since 1934. Even the police and the military are not permitted to use them here.

I present this brief summary of the recent tragedy and the implicated gun laws to address the issue of whether the government can keep us safe.

Those who fought the Revolution and wrote the Constitution knew that the government cannot keep us safe. Because they used violence against the king and his soldiers to secede from Great Britain, they recognized that all people have a natural right to use a weapon of contemporary technological capabilities to protect themselves and their liberty and property. They sought to assure the exercise of this right by enacting the now well-known Second Amendment, which prohibits the government from infringing upon the right to keep and bear arms.

When the Supreme Court interpreted this right in 2008 and 2010, it referred to the right to keep and bear arms as pre-political. “Pre-political” means that the right pre-existed the government. It is a secular term for a fundamental, or natural, right. A natural right is one that stems from our humanity — such as freedom of thought, speech, religion, self-defense, privacy, travel, etc. It does not come from the government, and it exists in the absence of government.

The recognition of a right as fundamental or natural or pre-political is not a mere academic exercise. This is so because rights in this category cannot be abrogated by the popular will. Stated differently, just as your right to think as you wish and say what you think cannot be interfered with or taken away in America by legislation, so, too, your right to own, carry and use arms of the same sophistication as are generally available to bad guys and to government officials cannot be interfered with or taken away by legislation. That is at least the modern theory of the Second Amendment.

Notwithstanding the oath that all in government have taken to uphold the Constitution, many in government reject the Second Amendment. Their enjoyment of power and love of office rank higher in their hearts and minds than does their constitutionally required fidelity to the protection of personal freedoms. They think the government can right any wrong and protect us from any evil and acquire for us any good just to keep us safe, even if constitutional norms are violated in doing so.

Can the government keep us safe? In a word, no.

This is not a novel or arcane observation but rather a rational conclusion from knowing history and everyday life. In Europe, where the right to keep and bear arms is nearly nonexistent for those outside government, killers strike with bombs and knives and trucks. In America, killers use guns and only stop when they are killed by law-abiding civilians or by the police.

The answer to government failure is a candid recognition that in a free society — one in which we are all free to come and go as we see fit without government inquiry or interference — we must be prepared for these tragedies.
We must keep ourselves safe, as well as those whom we invite onto our properties.

Surely, if the president of the United States were to have appeared at the concert venue in Las Vegas to address the crowd, the Las Vegas killer would never have succeeded in bringing his arsenal to his hotel room. Government always protects its own. Shouldn’t landowners who invite the public to their properties do the same?

Add to government’s incompetence its useless intrusive omnipresence. In present-day America, the National Security Agency — the federal government’s domestic spying agency — captures in real time the contents of every telephone call, email and text message, as well as all data sent over fiber-optic cables everywhere in the U.S. Thus, whatever electronic communications the Las Vegas killer participated in prior to his murders are in the possession of the federal government.

Mass surveillance is expressly prohibited by the Fourth Amendment, but the government does it nevertheless. It claims it does so to keep us safe. Yet this exquisite constitutional violation results in too much information for the feds to examine in a timely manner. That’s why the evidence of these massacres — from Sandy Hook to Boston to Orlando to San Bernardino to Las Vegas — is always discovered too late. At this writing, the government has yet to reveal what it knew about the Las Vegas killer’s plans before he executed them and executed innocents.

This leaves us in a very precarious position today. The government cannot keep us safe, but it claims that it can. It wants to interfere with our natural rights to self-defense and to privacy, but whenever it does so, it keeps us less safe. And in whatever arena it keeps us less safe and falsely fosters the impression that we are safe, we become less free.

Copyright 2017 Andrew P. Napolitano. Distributed by

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The weird odyssey of President Donald Trump’s travel bans continues. The original ban, signed as an executive order Jan. 27, barred absolutely all immigrants and refugees from seven predominantly Muslim countries. The countries had actually been chosen by the State Department of former President Barack Obama. Obama never signed a ban, but Trump did.

The first travel ban never took effect, as the federal courts in Brooklyn, Seattle and Honolulu in which it was challenged by people from the affected countries who had visas to enter the United States enjoined it almost immediately. When the Department of Justice challenged those injunctions, it lost. The basis for the judicial invalidations of the first ban was that it constituted a government decision based on religion.

Since the religion clauses of the First Amendment protect everyone — not just citizens — and since the seven countries designated by the Obama and Trump State departments and barred under Trump’s executive order were predominantly Muslim, and since candidate Trump had made very harsh anti-Muslim comments during the campaign, the courts ruled that the travel ban was actually a Muslim ban and thus was unconstitutional.

Before the DOJ could appeal its losses to the Supreme Court, President Trump signed a second travel ban March 6. It rescinded the original ban and articulated a national security and geographic basis for barring entry from six countries (eliminating Iraq). It, too, was challenged in the same federal courts as the first ban, and it suffered the same fate for the same reasons. This second ban reached the Supreme Court, which, by a 6-3 vote, invalidated the injunctions imposed by lower-court judges against it but carved out an exemption from the ban.

The carve-out exempted from the ban all refugees and immigrants from the designated countries who have “bona fide relationships” here in the United States. The dissenting justices argued that the Supreme Court has no business rewriting a presidential executive order and observed that the language in the carve-out — bona fide relationships — is vague and could spawn litigation over its meaning.

When the Department of Homeland Security defined “bona fide relationships” to include in-laws but not cousins or grandparents, that definition was challenged. The same federal judges who had invalidated the first and second bans then interpreted the phrase to permit the entry of anyone who had any family relationship in the U.S., any job offer, any offer of university admission or any offer of settlement here by a refugee program. The DOJ appealed that to the Supreme Court, and it removed the refugee settlement programs from the definition of bona fide relationships but permitted the remainder of the judicially determined phrase to stand. The Supreme Court also ordered oral argument on the constitutionality of the second travel ban and scheduled it for Oct. 10.

Last week, the court realized that the second ban expires later this week, well before Oct. 10. This is of profound constitutional significance because the expiration of the ban renders it moot. The Constitution limits the jurisdiction of all federal courts to real cases and controversies. If the ban does not exist on Oct. 10, there will be no case or controversy over it, and the Supreme Court will have no jurisdiction — no federal court will — to hear the case. Earlier this week, the Supreme Court canceled the Oct. 10 oral argument.

Cognizant of the mootness issues addressed above and aware that the second ban expires at the end of this week, the president signed a third travel ban last Sunday night. The third ban adds immigrants and refugees from Chad, North Korea and Venezuela to the remaining countries articulated in the second ban. It includes the exemption of bona fide relationships, and it purports to be based on the unique problems from people whose origin is in an international hot spot. It is not couched as a Muslim ban. Of the added countries, North Korea is largely atheist, and Venezuela is largely Roman Catholic; the remaining countries are overwhelmingly Muslim.

The third ban, which takes effect Oct. 18 — meaning that the president has chosen to impose no ban for 19 days — will affect everyone without a bona fide relationship in the U.S., and it appears to be permanent. The third ban is far more legally sophisticated than its predecessors. It purports to address each country uniquely, and it clearly was written with an eye toward the lower-court rulings over which its predecessors stumbled.

I have serious misgivings about the morality and political wisdom of these travel bans. The right to travel and to escape oppression is a natural human right, with which no government may morally interfere. And the assumption that merely because a person belongs to a group defined by immutable characteristics of birth — place of birth, in this case — the person shares all the dominant traits of others in that group has been rejected as un-American for generations.

Yet the travel bans are constitutional. That is so because the Constitution reposes foreign policy in the president and because Congress has reposed in him the ability to establish and enforce travel bans, and the courts should be loath to second-guess the president on foreign policy. That is at least how the Supreme Court has spoken on this to date. Yet look for this ban to be enjoined by lower federal courts before it takes effect. Their antipathy to all things Trump seems unabated.

Copyright 2017 Andrew P. Napolitano. Distributed by

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The Donald Trump I know is a smart guy who often thinks a few steps ahead of those whose will he is trying to bend. But I lately wonder whether he grasps the gravity of the legal peril that is beginning to show up around him. In the past week, we learned of an unfiltered public confession of frustration and weakness among his lawyers and we learned that his former chief confidant and campaign manager is about to be indicted. This is very bad news for President Trump.
Here is the back story.

Trump has hired two experienced Washington criminal defense lawyers to represent him in dealings with Robert Mueller, the independent special counsel who is investigating what connection, if any, there was between Trump’s presidential campaign and elements of the Russian government. Mueller has apparently struck a raw nerve in the West Wing of the White House, where Trump’s criminal defense lawyers and the White House legal counsel all work.

The nerve was struck over the appropriate response to document requests from Mueller. White-collar criminal investigations, of which this is one, often begin with documents. The government seeks from a potential defendant what it believes is evidence of his crimes from his own records. In the Trump/Russia investigations, Trump’s personally employed criminal defense lawyers have disagreed with the federal government-employed White House legal counsel about whether to surrender everything that Mueller has requested.

The criminal defense lawyers who represent the president as a private person are apparently of the belief that he has done no wrong and the surrendering of documents to Mueller would only confirm that. The White House legal counsel, which works for the presidency as a governmental institution, recognizes that as president, Trump enjoys many privileges, among them the right to keep certain communications secret. That is known as executive privilege. It was crafted by Trump’s predecessors and articulated by the courts to permit presidents to keep from prosecutors and Congress and the public secret communications about military, diplomatic and sensitive national security matters.

The White House counsel worries that if he were to give Mueller everything Mueller seeks, the White House would not be able to claim the privilege should a communication it has already surrendered prove harmful to the president. Those on the criminal defense team believe that their client has done no wrong and a complete surrendering to Mueller of all the documents he seeks would accelerate the end of his investigation. One of the criminal defense lawyers even told Trump that Mueller would be off his back by Thanksgiving.

How do we know all this?

We know it because one of the criminal defense lawyers incredibly discussed it openly at a D.C. restaurant within the hearing range of a reporter for The New York Times. When the Times ran what its reporter overheard as a front-page story, no denials came from the president’s lawyers.

This lawyer’s apparently unfiltered and embarrassing public revelations of disputes within the White House over the appropriate presidential response to the special counsel’s demands are malpractice because they revealed to Mueller, as well as to the public, defects in the president’s legal strategy — namely, the absence of a final legal decision-maker and the absence of a coherent strategy on the part of the president’s combined legal team.

Also during this past week, we learned that Paul Manafort — the president’s former tenant at Trump Tower, his former chief political strategist as he sought the Republican presidential nomination and his former campaign chairman — was the subject of FBI surveillance for a two-year period starting prior to the campaign and continuing into the transition period after Trump’s election.

With whom was Manafort communicating on a daily basis in the time period of the Trump Tower surveillance? And who complained forcefully that he had been surveilled in Trump Tower? And who was mocked mercilessly for those complaints?

Donald Trump.

Let’s take a step back from this. The Department of Justice, as recently as last week, publicly denied that it possesses any evidence derived from electronic surveillance of anyone in Trump Tower from the two years preceding the 2016 presidential election. Former FBI Director James Comey had already made a similar denial in testimony before the House Intelligence Committee. But there have been no FBI denials of the Manafort/Trump Tower surveillance revealed earlier this week.

The sudden FBI switch to silence no doubt means that the surveillance did take place, and it probably was pursuant to a search warrant. If the warrant was issued by the Foreign Intelligence Surveillance Court on the representation that Manafort was probably communicating with foreign officials, then the fruits of the surveillance could not be used against him in a criminal trial, but they could have been shared with Obama administration officials in the West Wing during the campaign. At least one of those officials has admitted receiving raw intelligence data from surveillance of people in Trump Tower in 2016.

If the warrant was issued pursuant to the Fourth Amendment, that means the FBI demonstrated under oath to a federal judge that Manafort was more likely than not involved in and communicating about crimes while working in Trump Tower, and the fruits of that surveillance could be used against him in a criminal prosecution, as well as against anyone else involved.

An indictment of Manafort, which Mueller says is coming soon, will be used as an instrument to flip him into spilling whatever beans he has on his former boss. And we can expect indictments of others presently or formerly near the president as part of the prosecutorial process.

Where does this leave Trump? In the hands of incompetent lawyers, under the crosshairs of a team of very aggressive federal prosecutors and publicly indifferent to the tightening and frightening legal noose around him.

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump 
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Like many Americans during the past three weeks, I’ve been bombarded by news about the destructive power of Hurricane Harvey in Texas and Hurricane Irma in Florida. The stories are of misery, death and destruction.

The misery, death and destruction are acutely difficult to accept because they have been visited upon innocents. I say that knowledgeable of the ancient argument that our personal and collective sinfulness has merited our pain. Yet that raises this question: Does anyone really deserve personal ruination because of personal sin, particularly from a God whose Son said he came to call sinners and not the just?

Stated differently, why does an all-knowing, all-loving, all-powerful God permit innocents to suffer in natural disasters?

This question has occupied philosophers for millennia. The natural order of things has revealed that we all have free will, and we know from our experiences that we can easily abuse that free will. The individual will is so free that we can use it to do magnificent things or horrific things.

But a natural disaster is not the handiwork of anyone’s free will. Could it really be the handiwork of an angry God impatient with the manner in which we have abused free will? This argument is not a logical extension of Christian teaching, unless God is terribly inconsistent with His impatience over human failures and errors and has somehow overlooked and not yet grown impatient with the world’s worst monsters.

Why the natural disasters? We know from the exercise of our reason that the curvature of the Earth and its continuous movement through space set in motion a series of forces. These forces protect the Earth and its inhabitants from the harmful rays of the sun and permit the intrusion of the beneficial rays. All this comes at a price. The movement of the Earth actually produces friction, and that friction in turn ignites energy, and that energy often is drawn by the Earth’s gravity and finds an outlet in destructive forces on the planet.

Though these forces — the linchpin of which is the Earth’s gravity — can be avoided through the exercise of creative reason (we can build shelters from them), they are often, as with Harvey and Irma, beyond our ability to harness or control. All this is a thumbnail sketch of basic astrophysics, largely acquired through human reason and beyond serious dispute.

But the disputable philosophical questions remain. What force set all this in motion? What caused the big bang in the first place? What caused the Earth’s gravity? What tipped over the first domino that billions of years later triggered the explosions of energy that eventually became Harvey and Irma?

We know from reason that every effect had a cause. You plant grass seed and water it and the effect is blades of grass. The cause was the interaction of the seeds and earth and rain and sun brought together by the free will of the person who did the planting. There are infinite examples of this. Yet is there any cause that was uncaused? Yes. That is the all-knowing, all-powerful, all-loving uncaused cause, whom most of us call God the Father.

Now back to the question posed earlier. If God the Father created us and loves us, why does He permit natural forces that He set in motion to harm and even to devour us? A similar question was actually addressed by our Lord Himself when he was approached by biblical scholars who asked about a young man who was blind from birth. The question they put to Jesus was: Whose sinning caused this man to be born blind? Was it the man himself or his parents?

The question may have been an attempted trap. Yet Jesus answered by saying essentially that no one’s sins caused the blindness. Rather, he was born blind so that the works of God could be made manifest in him. In other words, he was born blind so that Jesus could cure his blindness publicly — as he did — and thereby enhance the faith and understanding of all who learned of this and believed it.

Of course, not all who learned of the cure of the blind man believed in Jesus’ divinity. Some thought he was a charlatan performing tricks, and some thought the young man was never really blind. Their skepticism and doubts caused G.K. Chesterton to remark that “the Christian ideal has not been tried and found wanting. It has been found difficult; and left untried.”

Chesterton recognized that we are free to believe or to reject belief. To those who believe in the all-loving God, we know that from time to time, He manifests Himself to give us a need to embrace Him, just as He did with the man born blind. That embrace is the test of faith. It was manifested in countless unseen acts of generosity and selflessness — from believing stranger to believing stranger — in Texas and in Florida.

I can hear the prayer of the faithful in pain. “O Lord, I prayed that the hurricane would not destroy my home, yet it did. I still love you, Lord, because my family was spared. I love you more now because I need you more now. I don’t reject the truth. I embrace it, no matter the cost — because the truth will keep my free will set upon you.”

As pope, St. John Paul II called this rational belief. It is the essence of understanding. It is faith tempered by human reason and human reason informed by faith. Faith without reason and reason without faith lead to fanaticism. Only their informed juxtaposition will guide our free wills to do the right things and to have understanding when bad things happen.

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Hurricane Harvey, Religion 
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Earlier this week, Attorney General Jeff Sessions announced that in six months, the Department of Justice will begin the long process for deportation proceedings against 800,000 young people who came to America as babies and young children in the care of their parents and others because those entries into this country were and remain unlawful.

When President Barack Obama signed numerous executive orders attempting to set forth the conditions under which illegally immigrated adults whose children were born here could lawfully remain here, he was challenged in federal court and he lost. Sessions believes that the government would lose again if it declined to deport those who came here illegally as babies and young children.

Here is the back story.

Shortly after President Obama formalized two programs, Deferred Action for Childhood Arrivals (commonly known as DACA) and Deferred Action for Parents of Americans (commonly, DAPA), in a series of executive orders, the U.S. Court of Appeals for the 5th Circuit ruled that DAPA — the orders protecting undocumented immigrants who are the parents of children born here — was unconstitutional.

Before signing his executive orders, Obama tried to persuade Congress to amend federal immigration laws so as to permit those who came here illegally and bore children here and those who came here illegally as infants to remain here with work permits, high school diplomas, Social Security numbers, jobs and other indicia of stability and permanence. After Congress declined to vote on the Obama proposals, he authored his now-famous DACA and DAPA executive orders. He basically decided to do on his own what Congress had declined to do legislatively.

But Obama’s executive orders were not novel; they merely formalized what every president since Ronald Reagan — including President Donald Trump — has effectively done. Each has declined to deport undocumented immigrants who bore children here or who were brought here as young children. President Obama alone showed the courage to put this in writing, thereby giving immigrants notice of what they need to do to avoid deportation and the government notice of whose deportations should not occur.

Numerous states challenged Obama’s DAPA orders in federal court. The states argued that because they are required to provide a social safety net — hospital emergency rooms, public schools, financial assistance for the poor, etc. — for everyone within their borders, whether there lawfully or unlawfully, DAPA was increasing their financial burden beyond their ability or will to pay. Stated differently, they argued that the president alone was effectively compelling these states to spend state tax dollars against the will of elected state officials. The states also argued that DAPA was such a substantial deviation from the immigration statutes that Congress had written that it amounted to the president’s rewriting the law and thereby usurping the constitutional powers of Congress.

A federal district judge agreed with the states, and the U.S. Court of Appeals for the 5th Circuit affirmed that ruling. That court held that by increasing the financial burden on states against the will of the elected officials of the states, the president had violated the Guarantee Clause of the Constitution — which guarantees a representative form of government in the states, not one in which a federal official can tell state officials how to spend state tax dollars.

It also ruled that by enforcing his executive orders instead of the laws as Congress wrote them — those laws mandate deportation for all who came here illegally, no matter their age or family status — the president was failing to take care that all federal laws be enforced. That behavior, the court ruled, violated the Take Care Clause of the Constitution, which compels the president to enforce federal laws as they were written, not as he might wish them to be.

The Supreme Court declined to intervene by a 4-4 vote, thereby permitting the 5th Circuit decision to stand undisturbed.

When Sessions announced this week that DACA will not be followed after March 5, 2018, he said he is confident that DACA is unconstitutional for the same reasons that the courts found DAPA to be unconstitutional. Yet there are moral, constitutional, legal and economic arguments on this that will be an obstacle to the cancellation of this long-standing program.

Morally, most of the beneficiaries of DACA are fully Americanized young adults who know no other life but what they have here and have no roots in the countries of their births. Many are serving the U.S. in the military. Constitutionally, DACA has effectively been in place since 1986, and 800,000 people younger than 40 have planned their lives in reliance upon it. Legally, once a benefit has been given by the government and relied upon, the courts are reluctant to rescind it, even though the 5th Circuit showed no such reluctance.

Economically, the summary removal of more than three-quarters of a million people from the workforce would have serious negative consequences for their employers and dependents and for delicate economic forces, and there would be negative economic consequences to the government, as well, as each claimed hardship case — each person whose deportation is ordered — is entitled to a hearing at the government’s expense.

Now many Republican and Democratic lawmakers in Congress want to make a close version of Obama’s executive orders with respect to immigrant infants (DACA) the law of the land — something they declined to do when Obama was president. Were this to happen, the tables would be turned on Trump. He would be confronted with the constitutional duty of enforcing a federal law that he has condemned.

Would he live up to his oath of office?

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Immigration 
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Amid the bad news this summer of racial tensions in Charlottesville and biblical-like floods in Houston and preening saber rattling between Pyongyang and Washington, a dangerous below-the-radar trend has been developing about which all who believe that the Constitution means what it says should be concerned. It is the reckless influence upon local law enforcement coming from the Trump administration.

Here is the back story.

When the states joined the union, they gave certain powers to the federal government, and they kept others to themselves.

The powers surrendered are articulated in the Constitution, and the 10th Amendment clarifies the truism that those powers not surrendered have been retained.

The traditional terminology for the powers retained is the “police power.” The police power does not refer to police as in cops on the streets, but it does refer to states’ powers to make laws and policies that are often enforced by cops on the streets.

In constitutional parlance, police power is the right and obligation of each state to legislate for the health, safety, welfare and morality of people in the state.

This is basically what state governments — and local governments with the approval of their state governments — do. And it is basically what the Constitution was written to prevent the federal government from doing.

Those who wrote, ratified and amended the Constitution all took pains to keep the police power out of the hands of the federal government for several reasons. One was federalism. The states are sovereign entities, 13 of which are older than the federal government. By retaining the police power in the states, the Constitution’s drafters provided a check — a limitation — on the reach of the federal government.

A second reason for retention of the police power in the states is what President Ronald Reagan whimsically called voting with one’s feet. He meant, of course, that since we all have the natural right to travel — to leave a geographical area that has a government we reject — we can go to a state more to our liking.

If you don’t like the taxes in New Jersey, you can move to Pennsylvania. If you don’t like the regulations in Massachusetts, you can move to New Hampshire. You can see the simplicity and constitutional beauty of his argument.
Yet the federal government — notwithstanding which political party is in power — has repeatedly found ways around these profound constitutional principles.

One way has been to use the commerce clause, which empowers Congress to regulate interstate commerce, to regulate anything that might affect interstate commerce — from the wheat a farmer grows only for his family’s own use to legal marijuana a pain-ridden patient grows only for her own use to countless items that never leave their state of origin or are not commercial in nature.

Another way for the federal government to reach into and control state and local behavior is by legalized bribery. For example, Congress cannot regulate highway speed limits or the minimum blood alcohol content sufficient to trigger DWI prosecutions, but it can offer the states cash to pave highways in return for the states imposing the congressional will on vehicle speeds and on DWI triggers.

And the courts have upheld this — effectively telling the states that if they want the federal cash, they must accept the federal strings attached. Because the states are all cash-strapped — and Congress knows that — the states always take the cash and the strings.

Now back to the troubling trend this summer. The Department of Justice last month told local police in states that prohibit the seizure of a criminal defendant’s assets before conviction that the police can just ignore these state prohibitions and follow the looser federal rule — which does permit seizure of assets before trial, while the defendant is still innocent — and the feds will share the seized assets with the local police who have seized them.

This is another example of federal bribery of state officials, although as yet untested in the courts.

This past week, the DOJ also announced it will be offering to local police vast amounts of surplus military equipment — much of it new, fearful and lethal — from body armor to listening devices to battle tanks.

If police begin to look like soldiers and carry soldiers’ gear in soldiers’ vehicles, will they begin to think like soldiers, whose goal is not to win hearts and minds and keep streets safe but to destroy the lives and property of the enemy in wartime?
Moreover, the strings attached to this federal hardware giveaway do not require congressional or even local government approval. They require only acceptance by the police and regular local use of the military equipment. Local police should not have this discretion and should not be subjected to this temptation.

Add to all this the recent DOJ threats to prosecute physicians and their patients who lawfully prescribe and use medicinal marijuana, President Donald Trump’s personal advice to cops to hate and be rough with certain violent but untried suspects, and his pardoning of a former Arizona sheriff convicted of willfully disobeying a court order to stop arresting people on the basis of their skin color and we have a serious challenge to basic constitutional principles.

Those principles require adherence to the rule of law. And the rule of law mandates that police be local but subject to the Constitution and federal and state laws like everyone else. And it requires fidelity to the Constitution by those in whose hands the voters have reposed it for safekeeping.

The rule of law is the absolute condition for personal liberty in a free society. Without it, we will have the rule of tyrants.

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Civil Liberties, Constitutional Theory 
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On the heels of his worst week in office, during which his crude comments about race were widely perceived as defending racism and hatred — comments that sent some of his natural domestic allies fleeing — President Donald Trump could not bring himself to articulate a mea culpa.

Instead, he purported to defend as “some very fine people” the monsters who shouted “Jews will not replace us” and “blood and soil” (a virulent Nazi slogan calling for lands where only Aryans may live) as they clashed with those who rejected their messages in Charlottesville, Virginia.

Police failure and general government indifference about the freedom of speech permitted one of the racists to kill one of those who had come to reject the hate.

After the deceased was identified, one of the neo-Nazis there said she deserved to die because she was “fat.” It is difficult for me to accept that I am writing about neo-Nazis calling for racial purity and rejoicing in the death of an innocent — in America in 2017. But here we are. They are among us, and these subjects must be addressed.

At first, the president made a rambling statement about bad people on “both sides”; then he read a nicely worded attack on racists; and then he held a disastrous impromptu news conference in which he was so morally ambivalent that he seemed to reject his duty as president.

Rejecting, as well, the pleas of those around him to renounce his own failure to renounce his moral ambivalence — which won him a public accolade from the most notorious Ku Klux Klan fanatic in the country — Trump decided to change the subject.

Like former President Bill Clinton after his disastrous public appearance before a federal grand jury that was investigating him, Trump decided to fight a war. But the war he announced we will “fight to win” earlier this week is the longest, most misguided, costliest and least understood war in our history, and we are fighting for people who hate us.

If these phrases and ideas sound familiar, they should. They are not my words — though I agree with them — but those of candidate Trump. He articulated them forcefully to the American electorate during last year’s presidential election campaign. He actually began attacking the war in Afghanistan long before he announced his presidential candidacy.

If he has been consistent on any public issue, it has been his opposition to this useless, lawless, costly war — until he needed to change the subject.

Why war? Because nothing strengthens the presidency and its occupant or commands the attention of the public or weakens domestic political opposition as effectively as war.

No rational person will argue publicly that our troops should die or lose or lack the resources to fight even an unjust war, and often even political opponents will jump on a wartime president’s patriotic bandwagon. We will witness that scene again soon.

With the last anti-war holdout in his inner circle — Steve Bannon — gone, Trump embraced the present and former generals with whom he has surrounded himself and surrendered to their arguments.

I wish he had been faithful to his promise to the electorate to bring the troops home. Instead, he will send an unannounced number of service members and accompanying equipment to Afghanistan — not to rebuild the bridges and roads the U.S. destroyed there but to fight, to kill and to “win.”

What are we doing there?

The British tried to tame this unruly barren wasteland, which has never had a modern-day central government, back in the 19th century, and the Russians tried to do the same in the 20th century. They both lost a generation of soldiers and a fortune.

What are we doing there?

On Sept. 11, 2001, the United States was attacked by 19 religious fanatics, most of whom were from Saudi Arabia. These monsters were funded by Saudi wealth.

But President George W. Bush needed some country to attack in the aftermath, so he convinced Congress that since we couldn’t attack the dead people who attacked us or our “friends” — the Saudis — who financed them, we should attack their ideological comrades residing in a safe haven called Afghanistan. Instead of attacking the 9/11 attackers’ sources, we attacked their friends.

What are we doing there?

During the Republican presidential primary debates, Trump himself savaged former Florida Gov. Jeb Bush so aggressively over his efforts to defend his brother’s decision to invade Afghanistan that the younger Bush quit the race; and Republicans voted for Trump in droves.

What are we doing there?

We have already spent more than 1 trillion borrowed dollars there, sent more than 100,000 troops there, killed countless innocents there, destroyed towns, cities and ancient artifacts there, lost billions in cash and equipment there; and whomever we have been fighting there for 16 years still controls more than 40 percent of the country.

What are we doing there? How will we know if we have won there? When will we come home for good from there?

The answers to these questions are deadly but easy — when the subject has been changed here.

Copyright 2017 Andrew P. Napolitano. Distributed by

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Last weekend, serious violence broke out in Charlottesville, Virginia, when a group of white supremacist demonstrators was confronted by a group of folks who were there to condemn the message the demonstrators had come to advance. The message was critical of the government for removing a statue of Gen. Robert E. Lee from a public place.

For some, Lee is associated with the military defense of slavery. For others, he is associated with the military defense of the right of states to leave the union — a union they voluntarily joined. For the organizers of the Charlottesville rally, the removal of the statue provided a platform to articulate crudely their view that the Caucasian race is somehow morally superior to every other.

Such a political and philosophical position is hardly rational to anyone who respects the dignity of all people and their moral equality before God and legal equality in America. Believing that one race is morally superior to others is largely a hate-filled theory, supportable only by bias, prejudice, fear and resentment — and perhaps a wish to turn back the clock to a time when the Supreme Court declared that nonwhites were not full people under the Constitution, a declaration eradicated by war and history and constitutional amendments.

These hateful, hurtful ideas — articulated publicly through Nazi salutes and flags and incendiary rhetoric last weekend — aroused animosity on the part of those who came to Charlottesville to resist and challenge and condemn these views. After the police left the scene and rejected their duty to protect the speakers and those in the audience, a crazy person drove his car into the midst of the melee that ensued, and an innocent young woman was killed when she was hit by the car.

Is hate speech protected under the Constitution? In a word, yes.

The First Amendment to the U.S. Constitution, which protects “the freedom of speech” from infringement by the government, has a long and storied history. The drafters of the amendment referred to it as “the” freedom of speech in order to underscore its pre-political existence. Stated differently, the freedom of speech is a natural right, one that derives from our humanity, and hence it pre-existed the government that was prohibited from infringing upon it. The government doesn’t grant free speech, but it is supposed to protect it.

In the early years of the republic, Congress punished speech that was critical of the government, through the Alien and Sedition Acts. The same generation that had just written that Congress shall make no law abridging the freedom of speech abridged it. During the Civil War, Abraham Lincoln, relying on no law, punished speech in the North that was critical of his wartime presidency. During both world wars, Woodrow Wilson and Franklin D. Roosevelt used the Espionage Act of 1917 to punish speech that was hateful of the government, because, they argued, it might tend to undermine the nation’s war efforts. Lincoln’s infringements were rejected by the Supreme Court. Wilson’s and FDR’s were upheld.

It was not until 1969 that a unanimous Supreme Court gave us the modern articulation of the nature and extent of free speech. Clarence Brandenburg, a Ku Klux Klan leader in Ohio, verbally attacked Jews and blacks in the government in Washington, D.C., at a public rally. He urged his followers to travel to Washington and produce violence against them. He was prosecuted and convicted under an Ohio law that largely prohibited the public expression of hatred as a means to overthrow the government.

Brandenburg’s conviction was reversed by the Supreme Court, which ruled essentially that the whole purpose of the First Amendment is to protect the speech we hate and fear. The speech we love and embrace needs no protection. Moreover, the right to decide what speech to listen to is enjoyed by individuals, not by groups collectively and not by the government.

All innocuous speech, the court ruled, is absolutely protected, and all speech is innocuous when there is time for more speech to challenge it. This rule — known as the Brandenburg doctrine — has consistently been upheld by the court since its articulation.

Now, back to Charlottesville. The government cannot take sides in public disputes, because by doing so, it becomes a censor and thus infringes upon the free speech rights of those against whom it has taken a position. On the contrary — and this was not done in Charlottesville — the government has the duty to protect the speaker’s right to say whatever he wishes and the audience’s right to hear and respond to the speaker.

When the police decline to maintain order — as was their decision in Charlottesville — they permit the “heckler’s veto,” whereby the audience silences the speech it hates. And when the heckler’s veto comes about through government failure as it did in Charlottesville, it is unconstitutional. It is the functional equivalent of the government’s taking sides and censoring the speech it hates or fears.

The whole purpose of the First Amendment is to encourage open, wide, robust debate about the policies of the government and the people who run it. It would be antithetical to that purpose for the government itself to decide what speech is acceptable and what is not in public discourse.

What about hate speech? The remedy for it is not to silence or censor it, because we need to know from whence it comes. The remedy is more speech — speech to challenge the hatred, speech to educate the haters, speech to expose their moral vacuity. More speech will create an atmosphere antithetical to hatred, and it will reinforce the right of every individual to pursue happiness, which is the American promise.

But that promise is only as valuable as the fidelity to it of those in government, whom we have hired to protect it. In Charlottesville, they failed.

Copyright 2017 Andrew P. Napolitano. Distributed by

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Earlier this week, the Trump Department of Justice told the mayor of Chicago that it would cease funding grants to the Chicago Police Department that had been approved in the Obama administration because Chicago city officials were not cooperating with federal immigration officials.

The DOJ contended that Chicago officials were contributing to lawlessness by refusing to inform the feds of the whereabouts of undocumented foreign-born people, thereby creating what the feds derisively call a “sanctuary city,” and Chicago officials have argued that their police officers and clerical folks are not obligated to work for the feds.

Who is correct?

The concept of a sanctuary city does not mean it is a place where federal law is unenforced by the feds. Rather, it is a place where local authorities have elected not to spend their tax dollars helping the feds to enforce federal law. The term “sanctuary city” is not a legal term but a political one. The Trump administration has used the term to characterize the governments of towns and cities that have created safe havens for those who have overstayed their visas by refusing to tell the feds who these folks are and where they can be found.

Can local authorities refuse to help the feds enforce federal law? In a word, yes. There is no legal obligation on the part of local authorities to help the feds with manpower or resources or data to enforce federal law within the jurisdiction of those local authorities.

During the Clinton administration, when Congress passed legislation that directed local law enforcement to enforce a federal gun registration scheme, the Supreme Court invalidated the statute. It ruled that the feds cannot commandeer local and state officials and compel them to enforce federal laws; the feds can enforce their own laws.

The federal compulsion, the court held, violated the Guarantee Clause of the Constitution, which guarantees a representative form of government in every state. If the feds could enter a state and nullify the will of elected state officials not to spend state tax dollars, that would unconstitutionally impair representative government in those states.

Can the feds withhold federal funds from cities that refuse to cooperate in the enforcement of federal law? Yes and no. In the post-World War II era, Congress began purchasing state compliance with its wishes in areas that the Constitution did not permit it to regulate. Stated differently, since Congress can spend money on any matter it wishes, as long as it is arguably for the general welfare, but it cannot regulate for the general welfare, it has used its power of the purse as a way around the constitutional limitations on its regulatory powers.

This is legalized bribery of the states.

In the Reagan administration, Congress offered hundreds of millions of dollars to the states to repave federal highways if the states lowered their maximum speed limits to 55 miles per hour. South Dakota objected. Its government wanted the federal cash for the highway repaving but did not want to lower its speed limits.

The Supreme Court ruled in favor of the feds. It held that South Dakota is free to reject federal dollars, but if it accepts them, it must accept the strings that accompany them, as long as those strings are clearly spelled out before the cash flows and rationally related to the expenditure of the federal funds. Because repaving highways and the maximum speeds that vehicles would travel on them were rationally related, South Dakota had to choose between its cherished liberal speed limits and federal cash. No surprise, it chose the cash.

Now back to sanctuary cities. When the Obama administration offered Chicago and other cities cash to purchase new police communication equipment, it attached strings to those offers — but compliance with federal immigration authorities was not among them. Chicago’s complaints about DOJ threats are constitutionally sound because federal strings can be imposed only by Congress and they cannot be imposed retroactively.

Thus, federal funds awarded in the Obama administration without the string of cooperation with immigration authorities attached may not be interfered with by the Trump administration. If the feds do withhold committed funds that lack a cooperation condition attached, a court will invalidate that withholding.

Is the refusal to cooperate with the feds a form of nullification? In a word, yes. Federal law is superior to local law in areas that are primarily or exclusively federal, and immigration is unambiguously federal. Yet having pockets throughout the country without local cooperation with the feds fosters what the courts have called “laboratories of democracy.”

Stated differently, if the local government in Manhattan or Chicago or Seattle aggressively protects undocumented immigrants who live there in return for the purchasing power and cultural diversity that immigrants bring, that may relieve social and legal pressure on governments elsewhere and will be a social experiment — a laboratory of democracy — worthy of cultural and political scrutiny and perhaps even indifference when it comes to the feds.

Many Trump supporters see in the president a champion who will rid the country of those they see as unlawfully here, and they also see in liberal big-city mayors politicians pandering to interest groups. But there is a rich history to federalism, and there are two sides to its coin. The rich history is that of state and local resistance to the tyranny of the majority in Washington — a resistance as old as the country itself. The refusal of Massachusetts authorities to cooperate with the feds in the enforcement of the federal Fugitive Slave Act comes to mind.

The other side of the coin is unthinkable to my conservative brethren. If Hillary Clinton had been elected president along with a Democratic Congress and it had offered state and local governments federal funds with strings attached requiring cities to make abortions available on demand, they all would be whistling a very different and very federalism-based tune.

Copyright 2017 Andrew P. Napolitano. Distributed by

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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.

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Confederate Flag Day, State Capitol, Raleigh, N.C. -- March 3, 2007