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I have spent this past week watching the Senate Judiciary Committee interrogating U.S. Circuit Judge Neil Gorsuch. Judge Gorsuch is President Donald Trump’s nominee to fill the vacancy on the U.S. Supreme Court. The vacancy was created by the death of Justice Antonin Scalia more than 13 months ago. The Supreme Court is currently generally divided between four liberals and four conservatives. As a justice, Gorsuch would probably break many ideological ties.

During the hearings, Republican senators are doing their best to associate Judge Gorsuch with the popular-in-death Justice Scalia, and Democratic senators are doing their best to try to pin down Gorsuch by making him commit publicly to positions on hot-button issues, such as abortion, gun rights and the use of unrestricted money in political campaigns. Gorsuch has accepted the Republican sobriquets and declined to answer Democratic inquiries with specificity. So, are the hearings of any real value?

Here is the back story.

Prior to the partisan efforts to block the nominations of the late Judge Robert Bork and now-Justice Clarence Thomas to the Supreme Court, the Senate’s “advice and consent” role was mainly limited to a cursory examination of a nominee’s qualifications for office. The Bork hearings succeeded in derailing his nomination by portraying his philosophical views as outside the mainstream of legal thought. The Thomas hearings, which failed to block the nomination, centered on the nominee’s alleged personal shortcomings, which were directly challenged and mainly refuted.

My point here is that since these two hearings in 1987 and 1991, the Senate Judiciary Committee has felt unleashed to probe and prod into any area it sees fit, and the nominees have become unleashed to answer only the questions that they think will advance their nominations.

In the Gorsuch hearings this week, the nominee has argued that should he commit to certain positions on issues, it would not be fair to litigants who might come before him as a circuit judge if his nomination were not to be confirmed or before him in the Supreme Court if it were, as those litigants would have a proper belief that he prejudged their cases. “It would be grossly improper,” he argued, for him to commit in advance to how he’d vote on any issue. He’s correct.

So, what questions could both Democrats and Republicans put to him and what questions could he answer that would inform their judgment and illuminate his thinking without committing his judgment?

It should come as no surprise that Gorsuch is a traditionalist. The folks who offered his candidacy to the president — and I played a small role in that process — spent weeks examining all his public writings, as well as his speeches and lectures, so as to enable them to conclude safely that his 10-year track record as an appellate judge could fairly be a barometer of his likely behavior as a Supreme Court justice. In the process of that examination, the researchers found many similarities in ideas, tone, attitudes and word choice to Justice Scalia.

The essence of that similarity is an idea called originalism. Though there are many variants of originalism, it generally advances the idea that the meaning of the Constitution was fixed at the time it was ratified and therefore its words mean the same today as they did to those who ratified it; and the same is the case for its 27 amendments.

This fidelity to original public understanding drives judges to the text of the Constitution and the laws — not the principles that underlie the text, not the politics that produced the text, not the social ills the text seeks to cure but the words chosen by the drafters of the Constitution or of a statute, as the case may be. This is not just an obscure academic argument. Originalism, if followed religiously, leaves judges and justices to the narrow role of interpreting the plain text of the Constitution or laws as they were understood when enacted, irrespective of the consequences.

Originalists believe that social progress and new legal structures should come about by the acts of Congress and the president, who are elected for that purpose, rather than by the rulings of unelected, unaccountable judges. If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.

Yet originalists argue that federal jurists are the least equipped to advance social progress; they are often old, are never elected and have no accountability to the public.

Thus, it is on this philosophical fulcrum, more than on any other, that senators should examine Judge Gorsuch’s thinking. In this context, they can also ask him whether our rights come from the government or from our humanity. They can ask how he views fundamental liberties. Can the court pick and choose which rights are highly protected from government interference and thus are difficult for the government to regulate and which are not? If privacy and travel — neither of which is mentioned by name in the Constitution — are fundamental liberties, why isn’t freedom of contract, which is mentioned by name?

On these issues alone — originalism and fundamental liberties — the senators could find from his answers a blueprint to his thinking, and Judge Gorsuch could reply in meaningful ways without prejudging any cases.

ORDER IT NOW

But the Senate is a political body, and its members are politicians. One of the reasons Justice Scalia gave for rejecting as an interpretive tool the statements made by members of Congress when they passed any legislation under scrutiny is the truism that politicians have only one goal in their work, no matter what they are saying — to get re-elected. The senators examining Judge Gorsuch are probably more concerned with that than with doing the right thing for the court. I hope that in this respect, I am wrong, as I have been before.

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

 
• Category: Ideology • Tags: Constitutional Theory, Supreme Court 

The question of whether former President Barack Obama actually spied on President Donald Trump during the 2016 presidential campaign and transition has been tantalizing Washington since President Trump first made the allegation nearly two weeks ago. Since then, three investigations have been launched — one by the FBI, one by the House of Representatives and one by the Senate. Are the investigators chasing a phantom, or did this actually happen?
Here is the back story.

Obama would not have needed a warrant to authorize surveillance on Trump. Obama was the president and as such enjoyed authority under the Foreign Intelligence Surveillance Act to order surveillance on any person in America, without suspicion, probable cause or a warrant.

FISA contemplates that the surveillance it authorizes will be for national security purposes, but this is an amorphous phrase and an ambiguous standard that has been the favorite excuse of most modern presidents for extraconstitutional behavior. In the early 1970s, President Richard Nixon used national security as a pretext to deploying the FBI and CIA to spy on students and even to break in to the office of the psychiatrist of Daniel Ellsberg, one of his tormentors.

FISA was enacted in the late 1970s to force the federal government to focus its surveillance activities — its domestic national security-based spying — on only those people who were more likely than not agents of a foreign government. Because FISA authorizes judges on the Foreign Intelligence Surveillance Court to make rules and establish procedures for surveillance — essentially lawmaking — in secret, the public and the media have been largely kept in the dark about the nature and extent of the statute and the legal and moral rationale for the federal government’s spying on everyone in the U.S.

The mass spying that these judges have ruled FISA authorizes is directly counter to the wording, meaning and purpose of FISA itself, which was enacted to prevent just what it has in fact now unleashed.
We now know indisputably that this secret FISA court — whose judges cannot keep records of their own work and have their pockets and briefcases checked by guards as they enter and leave the courthouse — has permitted all spying on everyone all the time.

The FISA court only hears lawyers for the government, and they have convinced it that it is more efficient to capture the digital versions of everyone’s phone calls, texts, emails and other digital traffic than it is to force the government — as the Constitution requires — to focus on only those who there is reason to believe are more likely than not engaging in unlawful acts.
When FISA was written, telephone surveillance was a matter of wiretapping — installing a wire onto the target’s telephone line, either inside or outside the home or business, and listening to or recording in real time the conversations that were audible on the tapped line.

Today the National Security Agency has 24/7 access to the mainframe computers of all telecom providers and all computer service providers and to all digital traffic carried by fiber optics in the U.S. The NSA has had this access pursuant to FISA court orders issued in 2005 and renewed every 90 days. The FISA court has based its rulings on its own essentially secret convoluted logic, never subjected to public scrutiny. That has resulted in the universal surveillance state in which we in America now live. The NSA has never denied this.

Thus, in 2016, when Trump says the surveillance of him took place, Obama needed only to ask the NSA for a transcript of Trump’s telephone conversations to be prepared from the digital versions that the NSA already possessed. Because the NSA has the digital version of every telephone call made to, from and within the U.S. since 2005, if President Obama last year wanted transcripts of Trump’s calls made at any time, the NSA would have been duty-bound to provide them, just as it would be required to provide transcripts of Obama’s calls today if President Trump wanted them.

But if Obama did order the NSA to prepare transcripts of Trump’s conversations last fall under the pretext of national security — to find out whether Trump was communicating with the Russians would have been a good excuse — there would exist somewhere a record of such an order. For that reason, if Obama did this, he no doubt used a source on which he’d leave no fingerprints.

Enter James Bond.

Sources have told Fox News that the British foreign surveillance service, the Government Communications Headquarters, known as GCHQ, most likely provided Obama with transcripts of Trump’s calls. The NSA has given GCHQ full 24/7 access to its computers, so GCHQ — a foreign intelligence agency that, like the NSA, operates outside our constitutional norms — has the digital versions of all electronic communications made in America in 2016, including Trump’s. So by bypassing all American intelligence services, Obama would have had access to what he wanted with no Obama administration fingerprints.

Thus, when senior American intelligence officials denied that their agencies knew about this, they were probably being truthful. Adding to this ominous scenario is the fact that three days after Trump’s inauguration, the head of GCHQ, Robert Hannigan, abruptly resigned, stating that he wished to spend more time with his family.

I hope the investigations of Trump’s allegation discover and reveal the truth — whatever it is. But the lesson here is terribly serious. We face the gravest threat to personal liberty since the Alien and Sedition Acts of 1798 proscribed criticism of the government. We have an unelected, unnamed, unaccountable elite group in the intelligence community manipulating the president at will and possessing intimate, detailed knowledge about all of us that it can reveal. We have statutes that have given the president unconstitutional powers that have apparently been used. And we have judges on secret courts facilitating all this as if the Constitution didn’t exist.

For how much longer will we have freedom?

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

 

Those of us who believe that the Constitution means what it says have been arguing since the late 1970s that congressional efforts to strengthen national security by weakening personal liberty are unconstitutional, un-American and ineffective. The Foreign Intelligence Surveillance Act, which Congress passed in the aftermath of President Richard Nixon’s use of the CIA and the FBI to spy on his political opponents, has unleashed demons that now seem beyond the government’s control and are more pervasive than anything Nixon could have dreamed of.

This realization came to a boiling point last weekend when President Donald Trump accused former President Barack Obama of monitoring his telephone calls during the 2016 presidential election campaign. Can a U.S. president legally spy on a political opponent or any other person in America without any suspicion, probable cause or warrant from a judge? In a word, yes.

Here is the back story.

The president can order the National Security Agency to spy on anyone at any time for any reason, without a warrant. This is profoundly unconstitutional but absolutely lawful because it is expressly authorized by the FISA statute.

All electronic surveillance today, whether ordered by the president or authorized by a court, is done remotely by accessing the computers of every telephone and computer service provider in the United States. The NSA has 24/7/365 access to all the mainframe computers of all the telephone and computer service providers in America.

The service providers are required by law to permit this access and are prohibited by law from complaining about it publicly, challenging it in court or revealing any of its details. In passing these prohibitions, Congress violated the First Amendment, which prohibits it from infringing upon the freedom of speech.

The fruits of electronic surveillance cannot be used in criminal prosecutions but can be shared with the president. If they are revealed publicly, the revelation constitutes computer hacking, a federal crime. Nevertheless, some of what was overheard from telephone conversations between the Russian ambassador to the U.S. and former Lt. Gen. Michael Flynn, Trump’s former national security adviser, was revealed to the public — a revelation that profoundly disturbed the White House and many in the intelligence community and constituted a crime.

The original purpose of FISA was to place the judiciary as an intermediary between the nation’s spies and the foreign agents we all know are among us. The theory was that the NSA would first need to demonstrate to a secret court probable cause that the target of the spying is an agent of a foreign power and this would restrain the NSA from spying on ordinary Americans. This probable cause of foreign agency was a dramatic congressional rejection of the constitutional standard — namely, probable cause of crime — for the issuance of warrants. Foreign agency is not a crime.

This congressional rejection of constitutional norms began the slippery slope in which the foreign agency standard has morphed by legislation and by secret interpretations of the Foreign Intelligence Surveillance Court to probable cause of foreign personhood to probable cause of talking to a foreign person to probable cause of being able to talk to a foreign person to — dropping the probable cause standard altogether — anyone who speaks to anyone else who could speak to a foreign person.

This Orwellian and absurd expansion was developed by spies and approved by judges on the FISA court. The NSA argued that it would be more efficient to spy on everyone in the United States than to isolate bad people, and the court bought that argument.

Hence, FISA warrants do not name particular people or places as their targets as the Constitution requires. Rather, they merely continue in place the previous warrants, which encompass everyone in the country. FISA warrants are general warrants, allowing intelligence agents to listen to whomever they wish and retain whatever they hear. General warrants are expressly prohibited by the Fourth Amendment, which requires that all warrants for all purposes be based on probable cause of crime and particularly describe the person or thing to be seized — e.g., a conversation — or the place to be searched.

Even though the NSA already has the legal, though unconstitutional, authority to capture any phone conversation or computer keystroke it wishes, its 60,000 agents lack the resources to listen to all conversations or read all electronic communications in real time. But it does capture the digital versions of all computer keystrokes made in or to the U.S. and all conversations had within the U.S. or involving someone in the U.S.; it has been doing so since 2005. And it can download any conversation or text or email at will.

That’s why the recent argument that Obama ordered the NSA to obtain a FISA warrant for Trump’s telephone calls and a judge issued a warrant for them is nonsense. The NSA already has a digital version of every call Trump has made or received since 2005. Because the NSA — which now works for Trump — is a part of the Defense Department, it is subject to the orders of the president in his capacity as commander in chief. So if the commander in chief wants something that a military custodian already has or can create — such as a transcript of an opponent’s conversations with political strategists during a presidential campaign — why would he bother getting a warrant? He wouldn’t.

All of this leads to information overload — so much material that the communications of evil people are safely hidden in with the mountain of data from the rest of us. The NSA captures the digital equivalent — if printed — of 27 times the contents of the Library of Congress every year.

All of this also leads to the monstrous power of the NSA to manipulate, torment and control the president by selectively concealing and selectively revealing data to him. The Constitution does not entrust such power to anyone in government. But Congress has given it.

ORDER IT NOW

All of this also substantially impairs a fundamental personal liberty, the right to be left alone — a right for which we seceded from Great Britain, a right guaranteed by the Fourth Amendment and a right for which we fought wars against tyrants who we feared would take it from us.

Yet after we won those wars, we permitted our elected representatives to crush that right. Those faithless representatives have created a monster that has now turned on us.

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

 

 
• Category: Foreign Policy • Tags: Government Surveillance 

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.

ORDER IT NOW

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.

ORDER IT NOW

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 
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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