End DACA Now!

Imagine this…

In every state there are laws against theft. Theft is usually described as the taking of the property of another. Similarly there are laws in every state specifying that employees shall be paid a minimum wage for relatively unskilled work. Employees who feel underpaid are free to leave.

Now, let’s suppose that a group of McDonalds, Burger King, Taco Bell, Subway, and Pizza Hut workers get together and they decide that since the companies won’t support a $15 minimum wage, that they are simply going to supplement their wages out of the till. So every night at the close of business they take $100 or more to “compensate” for what they consider “stolen labor.” They are caught on videotape in the act. The thefts amount to more than $500, so they’re felonies. The police take all this to the prosecutor in the belief that he’ll take it to a grand jury.

But the prosecutor says “I know we have laws against theft, but I worked at McDonalds in high school, and I’m sympathetic to these kids. I’m not going to prosecute them.”

What do you suppose would happen with that local prosecutor? If he was in any state other than California, Washington, Oregon, New York or Illinois, my guess is he’d be thrown out of office in a recall election. Laws exist to protect everyone. If employees can steal from Ronnie’s place, they can steal from the Orthodontist, the Ace Hardware Store, and the movie theater too. Lawlessness would abound.

The DACA Debacle

So, let’s see if I get this right.

We have laws that say if you want to immigrate here and work here, you have to come here through our immigration process, wait your turn, learn our ways, support our constitution, and keep your nose clean. Break any of the rules, you go back where you came from.

We have senators and congressman from both parties who say “well, I know we enacted those laws, but they’re so mean, let’s just not enforce them.” Note, they don’t say “let’s change them,” they say that we should not enforce them. So our former president, Barack Obama, did just that. He said he would institute this ridiculous “dreamer” program and just not enforce the law of the land.  Not only that, he’d grant them work visas.  Why?  So they would vote Democratic.

But, there is a problem with that.

The problem is found in Article II, Section 3 of the Constitution which, among other things provides that the president “shall take Care that the Laws be faithfully executed…” In other words, once a law is on the books, the Constitution requires the president to “faithfully execute” that law. Faithful execution means you execute the law as it is written and interpreted, not on the basis of your individual whims.

But but but…what about discretion?

Now, there is such a thing as prosecutorial discretion. An executive officer can choose which battle he fights. In certain select cases he may forego prosecution of a criminal offender if the law and public policy favor a different approach. Many state prosecutors use this power to do “diversion agreements.” Prosecutors use this where a person like a school teacher who may have driven impaired. The teacher is well respected, everyone knows children can drive you to drink, and the teacher has sought professional help. If prosecuted, she would lose her job if she was convicted. Prosecutorial discretion in a particular case can be a good thing (although it often winds up being a sweetheart deal for the rich and powerful in many jurisdictions). But not for a class of wrongdoers.

Everyone makes the assertion that coming here illegally is a “civil infraction” as opposed to true criminality. The fact is, it doesn’t make any difference. If you do not belong here, we have a right to make you leave.

The Threat versus Reality

The Governor of New York has made the ridiculous statement that if President Trump does not stay with the DACA program, he’ll sue.  Perhaps he doesn’t read the papers. A whole bunch of red state governors beat him to it; they already have sued to overturn DACA. This is the argument the red state governors make:

  • Congress passed a law
  • Presidents must faithfully execute the law
  • Not sending illegal aliens packing is not faithfully executing the laws; therefore
  • We demand that the president kick the illegals out.

Here is the argument the governor of New York will make:

  • Dreamers came here with their parents.
  • They had to obey their parents.
  • They did not have any choice.
  • They are as American as apple pie and baseball.
  • It would be so mean to send them back
  • Make the president do what I want to or I’m going to cry!

Now, when the left-wing lawyer-zealots get done, there will be a lot of “due process” and “liberty interests” and “detrimental reliance” all woven in there, but the argument will still be that the governor of one state can insist that the federal government not enforce laws validly on the books because “the children” (all of whom are roughly 25) didn’t come here on their own.  Oh, and let’s not forget that the end game is to lock in 800,000 additional Democratic voters.

Who cares why they are here?  That is not relevant.  They only relevant question is “are they here legally?”

They are not here legally. They have no right to be here. They have no right to work here. To obtain those rights, they must return to their country of origin and go about it the right way.  I don’t care if they were six months old when they left, and if their younger brother is a citizen by birth.  Doesn’t matter.  An American in their country of origin would have no right to remain there unlawfully and work unlawfully. Why do we have to accommodate people who are not here lawfully?

True Story

I knew a family that came here from a country south of equator.  We’ll call them the Smiths so as not to give away their ethnicity.  The Smiths had three kids, all born in that far away country.  The oldest, we’ll call him Ab, was a stand up guy.  Did very well in high school, graduated, and went out west to pursue a life in a state that is very fond of illegal aliens.  Ab has never been in trouble with the law.

Ab had a sister, we’ll call her Belle.  Belle distinguished herself, became an entrepreneur, and has made a life for herself, albeit outside the ambit of legal immigration.  Whether she pays taxes or not, I do not know.  I just know she is a good person.

The third Smith child got involved early on with drugs.  He involved himself in petty theft initially, nothing that would go outside of municipal court.  He had a number of driving offenses because he could not get a license (he was not a citizen).  Finally, his interest in drugs eclipsed even his commitment to his family, and after a felony arrest he arranged to have his sister post bail and then skipped on the bail, leaving his sister holding the bag.  I never heard what happened to the third Smith child.  I assume he is still actively engaged in criminality, or rotting in a prison cell somewhere.  It doesn’t matter.  It illustrates my point.  Even if some of the “dreamers” are good people, all of them are not.  And none of them have the right to be here.

Ending DACA is Right

The answer to President Obama’s breach of the constitution is a simple one for the Supreme Court. The courts will simply say “DACA is the textbook example of the president not faithfully executing the laws of the land.”  The red state governors will will.  Everyone will laugh quietly at New York.

And the rest of us normals will say “thank God for Justice Gorsuch.”


The Lilliputian Strategy

The Emoluments Controversy

So, you’ve probably heard that President Trump, according to liberal Citizens for Responsibility and Ethics in Washington That Applies to Republicans Only (CREW-TARO) filed a lawsuit against the president claiming that he violated Article I, Section 9, Clause 8 of the Constitution.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.


Oddly, CREW-TARO also asserts that the President violated Article II, Section 1, Clause 8, which provides in full:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

So, what, precisely, is an emolument? The current version of the dictionary, reflecting the current use and understanding of the word says:

Emolument:  the returns arising from office or employment usually in the form of compensation or perquisites. (Webster’s Unabridged Dictionary)

Websters goes on to describe the origin as from the Latin emolumentum, which was defined as profit or gain, and was derived from the latin word emolere, to “grind up,” as in grinding up grain.

So, what, precisely is the lawsuit all about?


Remember Gulliver’s Travels? In the story, Gulliver arrives on the land of Lilliput, and lays down to nap. When he awakes he’s been tied down by the far weaker Lilliputians. They effectively negate his size advantage by using multiple ropes to confine him. Well, that is essentially the purpose of the lawsuit here, because while the President is fighting these meaningless battles, he’s not making America Great Again (except, of course, he actually is with employment up, manufacturing up, and real GDP growth).

Here’s what CREW-TARO did. First, the alleged injury in their own right. They did it in a manner so vague as to be truly laughable. Witness, from the  Second Amended Complaint:

  1. Defendant’s violations of the Emoluments Clauses also have required CREW to expend a significant amount of time and resources to research and monitor Defendant’s business interests. Since the November 2016 election, CREW researchers have dedicated significant time and effort to developing a comprehensive understanding of Defendant’s business empire and conflicts of interest, particularly regarding his business ties to foreign companies and governments that run a strong risk of resulting in a violation of the Emoluments Clauses. For example, CREW researchers have compiled and analyzed data regarding the more than 500 business entities Defendant listed on his 2016 personal financial-disclosure form, developing that information for both internal and external uses. As part of that project, CREW researchers devoted at least seventy hours to creating a series of infographics to explain the Defendant’s businesses and income, emphasizing the Defendant’s foreign businesses.60 This project began on November 28, 2016 and is not yet fully completed. Every member of CREW’s research team has worked on this project on a near-daily basis.

Yeah, you read that right. Donald Trump sent someone over to CREW-TARO’s offices to force them, at gunpoint, to expend resources to see if the President is cheating, and by God, they had to create infographics to do it! Oh the horrors!

  1. In addition to the diversion and depletion of CREW’s resources, CREW is further injured because Defendant’s violations of the Emoluments Clauses increase the costs to CREW to carry out its mission in the normal course of business. By accepting presents and emoluments through nonpublic channels, Defendant’s violations will deprive CREW of information about financial support Defendant will be receiving from foreign, state, and the federal governments, forcing CREW to expend resources to uncover his violations of the Emoluments Clauses.

Yes, Donald Trump is increasing their costs of doing business by, let me see if I get this right, forcing them to do the business they say they’re in? So, I can sue Obama for forcing me to buy Aspirin then? Cause that asshole gave me a headache!


Now, when this lawsuit gets dismissed in federal district court after the October 18, 2017 hearing that is currently set (and that will be breathlessly reported on by CNN, Washington Post, and the NY Times) the liberal spin will be that it was dismissed “on a technicality.” But that will just be another media lie.

In fact, it will be dismissed because of a lack of Article III standing under the Constitution. Now, lots of people don’t understand the concept of standing, and the media always does a horrible job of explaining it. Basically, it boils down to this. You have to show that you have a significant injury, fairly traceable to the challenged conduct, for which the law can grant you a remedy. The remedy sought here is an injunction that forces the president to divest ownership of his business interests, which would itself be unconstitutional. CREW is effectively saying “okay, you want to be President, you can’t earn any money but your Presidential salary, and you have to get rid of everything you own.” Gee, that seems fair!

Here’s the problem with CREW-TARO’s assertions.  First, the plaintiffs are, among other things, restaurants and hotels that claim a loss of profits due to Trump Hotels and restaurants being better built, providing better food, paying better wages, and attracting more customers.  In their complaint (read it, it’s attached) they never provide any specific information about injury, and in fact claim that they “will be injured” by the President’s actions.  So, just like a Democrat, hollering before they’re even hurt.

Now, you may have missed the CREW-TARO lawsuit that they filed against President Obama when he received the Nobel Peace Prize. But of course, that’s because they didn’t sue Obama. No one did. And when the issue was brought up, Obama’s justice department concluded:

As we previously explained in our oral advice and now explain in greater detail, because the Nobel Committee that awards the Peace Prize is not a “King, Prince, or foreign State,” the Emoluments Clause does not apply.

How convenient! It is because the Nobel Committee isn’t a foreign state. But of course, its members are appointed by a foreign state actor. But why quibble about the finer points when no one cares because our first black president got an award he didn’t earn and didn’t deserve.

Now, flash forward to today. What’s the position of the CREW-TARO people with regard to emoluments? Well, first, let’s forget the dictionary definition. The President’s lawyers explain in their memorandum of law that lawyers get to define words all the time, so this is how CREW-TARO defines it:

Plaintiffs allege that the President owns and controls hundreds of businesses throughout the world, including some doing business as The Trump Organization. Id. ¶ 42. They allege that the President violates the Emoluments Clauses whenever such businesses receive “anything of value, monetary or nonmonetary” from an instrumentality of a foreign, federal, state, or local government. Id. ¶¶ 7, 37. In Plaintiffs’ view, a “present” is anything of value “provided without a return of anything of equal value,” while “an ‘Emolument’ … could cover anything else of value, including without limitation payments, transactions granting special treatment, and transactions above marginal cost.” Id. ¶ 37.

Motion to Dismiss at 22. I’ve linked the document here, and you should read it.

So, what does that mean, exactly? It means when Dung Wu, who is paid by the Chinese government to translate American books, walks into the coffee shop at Trump’s DC Hotel, and plunks down $10 for an overpriced cup of coffee, China has effectively provided an “emolument” to the President because Dung wouldn’t have had that $10 if it hadn’t been for China, and clearly Dung was trying to curry presidential favor.  Say What?   It means that when the Government of Saudi Arabia, that gave billions to the Clinton Slush Fund, er, sorry, Global Initiative, pays an amount actually due from a prior contract — rent on a suite of rooms in a Trump Condo in New York — they’re giving the president an “emolument.”  Isn’t anything of value a little over broad?  The president’s lawyers say yes, and their historical analysis in the memo is worthy of a read.

So… does your head hurt yet? Because it should.

Good Lawyering

The President’s lawyers, however, have done a good job of attacking the ridiculous lawsuit on the basis of standing. Essentially the lawyers argue that the defendants have not alleged any injury to them that flows from the President’s conduct, they have no standing, that the provision they attempt to enforce has different interests than those of the plaintiffs, and that because the President derives money from business operations that are outside the scope of his office as president, the profits so derived are not emoluments, noting that historically, each of the first few presidents, and many of the government officials, did not even derive a salary, but were instead allowed to operate their own businesses. The motion to dismiss provides the needed history as well as a cogent explanation of why the Emoluments Clause doesn’t stand for what the CREW-TARO people think it does.

In other words, the Emoluments Clause, which has never been litigated before, and is an issue of first impression, is being litigated in a venue that is rife with Democratic judges, and that has not even a smattering of merit.

And CREW-TARO will lose.

If I were the President, I’d ask for Rule 11 Sanctions.  I would be damned if I would let those small-minded bastards tie me down!


Silence is Golden

“You know, if you just tell us what happened, I’m sure the Court will go easier on you.”

Yep, if you’ve seen a cop show on television, you know that this gets said to every generally good person accused of a crime. On TV we have the moral certitude that the wrong was committed. In the real world, not so much.  And the idea of a court rewarding honesty is good in theory, but I’ve seen no data that suggests it actually happens.

Someone once observed that confession is good for the soul. That may be, but it is not good for your freedom. Until such time as you’ve had legal advice, you should never speak to a police officer about the events that led up to a self defense shooting. “I am happy to give a complete statement once I have spoken to my lawyer.” Say that, and no more. Any time anyone asks you anything, say “LAWYER!” They’ll quit soon enough.

Also, don’t assume that what you say won’t be recorded. Not only do cops wear body cameras, but they can turn on the video recorder in their patrol car, and if they put you inside, in most cases it will record what you say. So things like “damn I nailed that sumbitch!” are just not good things to say in the back of a cop car.

You’ve probably read it so many times by now that you can repeat it in your sleep: you have a right to self defense so long as you’re not the aggressor, and you believed your life or the life of someone else was in immediate peril. You probably also know that you can only continue defending until the other person is not a threat. So if the bad guy falls down and drops the gun after your first shot hits him, you can’t pump five more into him while he’s on the ground.

There are about a million reasons why you should not talk to police, fire, or anyone else at the scene until you talk to a lawyer. The first is that you’ve been traumatized. You’ve had to take a life, and in doing so, you faced mortal danger. You’re operating on adrenaline. Your fine motor skills are crap. Your memory is trying to re-order the events in a way that makes sense. If you tell your story to three different people, you’ll tell three different stories because you’re working off short term memory, not long-term memory. And that’s a problem because inconsistencies in stories become “lies” in court. And anything you say can and will be used against you.

This is why in garden-variety cases involving criminal activity, the client is never allowed to testify.


Because everyone gets confused, everyone makes mistakes, and a seasoned cross-examiner could put Mother Teresa on the stand, and have a jury saying things like “that damned Mother Teresa, what a liar!”

This is because while trials are a search for the truth, lawyers look for and highlight the inconsistencies, which become “lies” when argument is made. Letting your client answer questions before trial gives the prosecutor the “didn’t you tell the police that…” arrow in his quiver. And, it’s worth noting that if what the criminal defendant says helps him, there were be no video, but if what he says hurts him, he’ll be on video. It’s also worth noting that notes taken by arresting officers where they may have written down something vaguely exculpatory will be thrown away and lost forever (with exculpatory information removed) once a report is written.   This doesn’t mean cops are bad people, it just means that having been subject to cross examination multiple times, cops understand how the game is played, and they take pains to play to win. And if you’re innocent, that sucks.

That’s because while cops and prosecutors are supposed to play fair, often, in their zeal to win, they don’t. I know this personally.

To borrow from the TV series Dragnet, the story below is true; only the names have been changed to protect the innocent. In this case, the defendant was truly innocent, and it highlights the kind of specialized help that a lawyer can bring to a situation where the police are unlikely to want to play fair.

I had a client once who was accused of a sexual misadventure with an underage girl. The girl was pretty, about 19, and she did that whole crying thing very well. I suspect she purchased the cheapest mascara available so that she could look like she’d cried her eyes out. Her pretend vulernable nature brought out the protector in the cop assigned to investigate, who had never seen an innocent man – ever. If this cop was after you, he wouldn’t stop until he found the evidence (or created the evidence) to nail you.

The client was innocent. He didn’t do what he was accused of. He told me the girl had never been in his house, and I believed him. Early in the investigation I told him to go to his house and repaint the bedroom and living room with a new and different color. It didn’t matter what, as long as it was different.

I told him to change the placement of the furniture. So that it was different, and to have someone help him do that so there would be a witness besides him to testify to the way the room was arranged before and after. That same witness took before and after photos.

I knew if the girl had never been in the house, that she could not possibly describe the way the house looked, what was where, etc. But I knew that if I knew this flaw in the prosecution’s case, the prosecutor knew it too.

About a week after the client interview with the cops and two weeks after he’d repainted the inside of his house, the cops showed up with a search warrant and a video camera, and they videoed the entire house, especially the bedroom and the living room where supposedly all of the bad things had happened. They took DNA samples, etc., none of which came back.

So I pulled aside the detective and I said “you better not show the complaining witness this video because I don’t think she can describe the house without seeing it.”

He bit like a chicken on a June Bug. He assured me he would not show it. And on the stand, he stated he had never shown the witness the video (but of course, he didn’t need to show it to her, someone else could have). However, I’m sure that the girl watched the video several times. She testified at trial about the blue walls in the bedroom and the yellow walls in the living room, and how the bed was on the north wall, and the couch was on the east wall of the living room. She got up and marked where these things were on a big piece of paper hung on an easel in the Courtroom. On cross exam she said again and again she was absolutely sure. This couch was the right place. This was the right color for the bedroom. No, the bed was facing south, not north.

The prosecutor enjoyed this: “you’re making my case for me.”

He didn’t enjoy the first defense witness, the person who had helped the client paint and moved the furniture into a new orientation.

“Ms. X put the couch here. Was that where it was on May 9?”

“No, it was here.” He then pointed to a different location, and marked it in with a different colored marker on the prosecution’s easel.   I could hear steam escaping at the prosecution table.

“Were the walls in the bedroom blue on May 9?”

“No, they were a light gray on May 9.”

“How did they get blue?”

“I helped Mr. Y paint them.”

“Can you describe this photo please?”

“Sure, that’s a photo of me helping paint the gray walls blue.”

The prosecutor sat like a boiling teakettle at counsel table until counsel passed the witness and his first question was something like “what were you trying to conceal by repainting the walls and moving furniture?”

“Nothing sir. I was trying to expose a liar. And, it looks like I did.”

The jury was out about 30 minutes, but mostly because they wanted the pizza that was brought in for supper. The acquittal was unanimous.

In a self-defense situation, there will almost always be an assertion of wrongful conduct on the part of the shooter. Recently in Oklahoma, when a man shot three teens who had broken into his house, the victim’s parents were aghast that little Johnny got his ass shot off because he was breaking, entering, and carrying a knife. In Oklahoma, the prosecutor laughed.

In Illinois the prosecutor would have wanted to help slap on the cuffs. That would be the same in Maryland, Connecticut, New York, New Jersey and California. Those “blue states” hate the idea that someone might use a firearm for self defense.

If you don’t have Delta Defense or NRA Carry Guard, you’re not prepared for what will happen if you ever have to use your gun to defend yourself. The time to prepare is now.

Gun Crime = No Deals


You may not be aware of this, but there is a law on the books that makes murder illegal. Similarly, there are laws on the books that make armed robbery illegal. Rape, armed criminal action, assault, manslaughter – all these things are illegal. The presence of laws on these subjects does not stop them, it merely provides a mechanism to punish those convicted of these crimes. No one demands that police prevent murders. We demand they catch the villains, but we don’t demand that the police stand in front of our house and stop the murder from happening, and for obvious reasons.

We have laws against companies discriminating on the basis of age, sex, national origin, age and race. Yet every day African-Americans are discriminated against in the pursuit of employment, as are Asians, Hispanics, and other people of color. Women often feel job discrimination. As a man over 60, I’ve been the victim of age discrimination. Yet, there are laws that prohibit this. Does the law work?

Sure, in good companies, it keeps honest people honest. It does not prevent the exercise of discrimination at bad companies, it just punishes the conduct of that discrimination through the civil law.  But it doesn’t prevent every instance of discrimination.  Ask any person of color if you’re unclear on this.

There are laws that prohibit child abuse and elder abuse, but in spite of these laws, these vulnerable members of our society are still abused. The law does not prevent it, except in that rare instance where the only thing holding back a parent’s hand is the sure knowledge that injury to their child will invite investigation from the police. In that limited respect, the law acts to prevent harm, but more often than not it fails.  And after 13 years working in Emergency Rooms, I can tell you it fails badly!

We have laws against credit card theft and identity theft, yet these crimes continue to happen. Life-Lock and other credit-monitoring companies have made millions off the fact that criminals want to steal from you. The law does not prevent the thefts, it punishes those that are dumb enough to get caught (and most of these clowns are overseas).  It does not deter the crimes.  Ever.

We have laws against drunk driving. Yet, in every state, people drive drunk. We have laws against texting while driving, but again, in every state, people do this every day. The law is either ignored or not enforced. We have laws against minors in possession of alcohol, but sure enough, every kid over 16 knows where and how to get a beer if they really want one. Because while the laws that forbid sales to minors exist, they do not prevent that from happening. Rather, they provide a means to punish the people who sell it.  If they worked, it would never happen.

In literally only one area do we expect the criminal law to stop something, and that area is in the domain of gun control. We have background checks, yet criminals get around them. We have requirements to obtain CCW permits, but criminals carry concealed anyway without a permit. That’s because the penalty for carrying and using a gun usually winds up negotiated out of the prison sentence once the criminals are caught. Prosecutors play “lets make a deal.” Defendants get charges dropped in exchange for guilty pleas on other charges. The result is that while someone should do hard time for three years in a state penitentiary, instead, they wind up with 90 days in the county jail and serve 45 with time off for good behavior. And before you can say boo, they’re in possession of yet another firearm and they’re off to commit another crime. Because they have no respect for the law, and no fear of prosecution, they offend with impunity.

Yesterday a special needs child was killed because a thug – and that’s the proper description of him – decided that he need a .357 magnum to kill his estranged wife. Unwilling to be accountable for the path his bullets would take through his victims, he shot at his estranged wife and killed a young man who was barely 8 years old. There is no explaining this crime. There is no solution to this crime. The miscreant can’t even be punished because the coward took his own life (at least saving the taxpayers that expense). And this happened in a state with magazine bans, background checks, draconian gun laws, “may issue” concealed carry, and in a “gun-free” (meaning “criminals unrestrained”) zone.

So, did the law against murder stop this crime? No. Did the law against manslaughter stop this crime? No. Did the law against a person with drug and alcohol offenses having a gun stop this crime? No. Did universal background checks stop this crime? No. What about laws against domestic violence, did they stop this crime? No. No law stopped this crime because (a) this man did not fear the law; (b) no criminal respects the law; (c) this criminal knew he was going to take his own life; and (d) it would not have mattered if he had used a knife, a gun, or a rock, his estranged wife would still be dead, and he would still be a murderer.

There is one conceivable law that might have stopped this crime. That is gun confiscation: The removal of guns from private hands. That would have stopped this crime, but, it is completely contrary to the Second Amendment.  If that idea doesn’t scare you, you’re not rational.  When #Gunsense tells you they want to stop gun crimes, and that they seek “common sense gun control” they have to recognize that the only common sense gun control that would actually stop gun crimes is the complete confiscation of all personally-owned firearms. But they won’t tell you that because they want you to think they’re reasonable. They are not reasonable. We have a Second Amendment to protect us from our government, not so much from each other. But it protects the right to self defense too!  And there are 100 million patriots out there that would die before they give up their right to keep and bear arms.

But Mom’s Demand and Gunsense’s ability to reason doesn’t extend to honoring the lives of those killed. Rather, they simply try to make their families the poster-children for gun control. They claim to mourn the children, but in fact, they celebrate their deaths because it brings them one step closer to achieving what they want: more gun control legislation that will accomplish absolutely nothing.  The only thing it will do is make it harder on the law-abiding citizen to keep and bear arms.

The time has come to recognize that it really is an all-or-nothing situation. Until we have criminal control, until we have prosecutors who won’t make deals on gun crimes, we’re stuck. We need prosecutors to insist on full terms for gun crimes. We need them to enforce felon-in-possession statutes. We need to take parole off the table for gun crimes. We absolutely need to send every felon in possession case to the US attorney for federal prosecution. That’s the only way to stop this. And we need sentencing guidelines that grossly and disproportionately exact vengeance on those that use guns to commit violent crimes. Until we have people who serve the law doing what they are supposed to do, and judges doing what they are supposed to do, no matter how many gun control laws get passed, you’re going to see the violence continue.

Hively is Wrongly Decided


Judge Wood and Judge Posner of the Seventh Circuit have, in the Hively case, adopted a new paradigm for the interpretation of statutes. The opinion and Posner’s concurrence essentially adopt the idea that a statute must be interpreted today the way it makes the most sense today. In other words, where discrimination on the basis of sex forbids discrimination against women or men, it also forbids discrimination on the basis of sexual orientation.

This interpretation should trouble you. Indeed, that it should even find a small squeaky voice in the federal appellate courts ought to send a cold chill up your spine. Like moral relativity, judicial temporal relativity is a solution in search of a problem. If statutes are out of date, the proper remedy is to get the legislature to fix them. The proper remedy is not, as the Seventh Circuit has done, to invent a new paradigm of judicial interpretation “giving a fresh meaning to a statement … that infuses the statement with vitality and significance today.” (slip op. at 25)

Let’s look at what the good judge says. First, he acknowledges that the meaning of the term on account of sex was understood to mean gender, not sexual orientation:


Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

And a little later he says:


Title VII does not mention discrimination on the basis of sexual orientation, and so an explanation is needed for how 53 years later the meaning of the statute has changed and the word “sex” in it now connotes both gender and sexual orientation.

Yes, Judge Posner, please explain this. Because the words used in 1964 had defined meanings and every Congress since then has had the opportunity to amend and change those words, including in 1993 when the Americans With Disabilities Act was passed to update the Civil rights laws. But, no, the good judge impugns Scalia with his pen:


A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute.

But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burning the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating.


In other words, we’ve gotten away with this in the past, we should get away with legislating from the bench again. If Congress won’t act, we’ll be the conscience of the country. That would be all and good if you were elected and accountable, but you’re not Judge Posner. You’re not!

It may seem like a victory for gay rights to say that sexual orientation is now covered as a basis for sexual discrimination. But what it really means is no one will be free so long as a judge is allowed to take a mulligan on what a statute means “today.” Today homosexuality is tolerated well in society. But what about tomorrow when a right wing religious zealot claims the Oval Office.  Change is one constant in our society.  Requiring changes to come through the traditional method of legislative enactment is sound public policy.

Understand please, I mean and intend no ill will to gays and lesbians by suggesting that this opinion is an abomination and that the judges should self-flagellate, burn their robes and wash their hands with Lysol. Because the issue of homosexuality is a matter of personal choice and personal freedom and people can be who or what they want in this country. No one should be discriminated against because of whom that person chooses to sleep with at night. And, that’s not the point of this missive. The point is, the standard for judicial interpretation of a statute, because the closer we move to that standard for legislative enactments, the closer we come to the possibility of “re-inventing” the Bill of Rights to include or exclude certain long-held and long-established rights.

In the offices of Anytown and Gunsense today, they are leaping up and down cheering this novel approach because it validates one of their primary talking points: the founders could never have anticipated AR-15 assault rifles, therefore ban them and criminalize possession. It’s “common sense gun reform” to “give a fresh new meaning” to infuse the Second Amendment with “vitality and significance today.” You can almost hear all those Washington lawyers now putting pen to paper and making these same arguments.

But, why stop with just the Second Amendment. Maybe the Fifth Amendment needs to be updated. Let’s include not only speech from self-incrimination, let’s include documents you authored as well. And why have that pesky notion of a jury trial. Can’t judges decide quicker and move cases along faster? Yes, we can update and improve efficiency.

If there was ever an opinion written that practically shouts from the rooftops that we need Judge Gorsuch on the SCOTUS bench, this one is it. We cannot allow, under any circumstances, Judge Posner’s temporal judicial relativity (or perhaps his “extreme justice makeover”) to be written indelibly into the law of the land. This madness must be found in its crib and strangled before it emerges with a bludgeon and destroys the foundations of American jurisprudence.

Legislating from the Bench

Activist Judges

When Jose goes into traffic court and offers, as his defense, that everyone else was going 35 in the 25 mile per hour zone, the judge listens patiently before pronouncing him guilty. He does this because 25 miles per hour is a pretty clear line. The sign says “speed limit” it does not say “speed advisory.” In traffic court, no judge legislates from the bench. They simply enforce the law. The rules are clear. The public policy is there to keep people safe.

Judging usually involves clear rules, like speed limits.  You read the text of the rule.  You apply the rule.  End of discussion.  You were clocked at 35.  Speed limit is 25.  You are guilty.  Next case!

Now, flash forward a few years. Jose is pulled over for speeding again, but this time the officer smells something like burning leaves in the car and spies the remnants of a hand-rolled cigarette in the ashtray. Jose is sweating. He tells the officer he knows he was speeding and is willing to take the ticket. But the officer wants to search, and Jose doesn’t want that. So the officer calls a canine unit that hits on the car, and Jose is arrested for that 60 pound duffle of dope in his car.

Now, the mere fact that Jose is speeding is not probable cause for a search. The officer’s suspicion, based on smell, is not sufficient. The suspect’s refusal, standing alone is not sufficient. But combine all of that together, and you have reasonable suspicion that allows the dog to sniff the car. When the dog hits, that’s probable cause, and the rest is history.

Except, here is where the judges start legislating from the bench. The search can be declared unreasonable based on facts that the trial judge found reasonable. Of course, sometimes these exceptions are overturned by the next level of appellate review. This is how the law works. But a great deal of criminal law and public policy is made by appellate court judges, often without a lot of thought as to the consequences of those decisions on police and the general public.

If it stayed on the criminal law side, that would be fine.  But it does not.  I transfers over to the constitutional rights of all Americans.  And it is an absolute outrage that judges that take an oath to support and defend the Constitution, believe they can pick and choose which parts of it they support and defend.

Say what?

Courts tend to be very protective of rights under the First, Fourth, Fifth, and Sixth Amendments to the Constitution. However, the Second Amendment often gets not just short shrift, it often gets shredded by appellate courts that simply refuse to acknowledge that it means what it says.

The First Amendment protects free speech, and the Supreme Court in its wisdom has extended that protection to “symbolic speech” like flag burning and putting Jesus in the bottle of urine. In so doing it expands upon and broadens the traditional protection granted by the Amendment. No one has ever been able to explain to me how there can be “penumbras” of the Constitution that can be divined to exist and protect privacy (when that was never an issue in 1779) and yet, the plain words of the Amendment can be ignored in favor of a public policy that is based on a bunch of judges losing bladder control when they see a firearm.

The recent Fourth Circuit decision upholding Maryland’s assault weapons ban is just one example of exceptional judicial legislation that has no textual support in the Second Amendment, and is premised on a complete lack of understanding of the core holding of Heller. The Second Amendment says that the right to keep and bear arms (and that category is unlimited) shall not be infringed. In a reasonable world, any infringement would be intolerable.

Wait, the liberals cry, that means we couldn’t deny guns to felons!

No, that isn’t what it means. At common law a felon lost the rights and privileges of citizenship. He could no longer vote, among other things. His liberty was restricted. In essence, his rights under the Fifth and Eighth Amendments were circumscribed and narrowed by his violation of the criminal law. So when you make a law that applies to felons, it only applies to those who have been stripped of certain rights by a criminal court. It is not an infringement of the rights of the rest of us.

The Second Amendment — Your New Charmin

The Fourth Circuit made a mockery of the Second Amendment principally by premising its holding on the fact that “assault weapons” look like weapons of war. So does a rubber knife, but no state bans them. In making this ridiculous and unprincipled leap, the judges essentially gutted the one thing that the “gunsense” nuts always rely on: that the right is somehow premised on the existence of a militia. Indeed, by suggesting that the amendment does not protect weapons of war, when weapons of war are precisely what a militia needs, the Fourth Circuit not only does damage to its future credibility as a serious court, it literally shreds the Second Amendment and uses it for toilet paper.

We can only hope that once Judge Gorsuch gets to the Supreme Court he will take certiorari on this display of judicial ignorance (some might say “arrogance”) and write a pro-Second Amendment opinion that bitch-slaps the sorry excuses for judges in the Fourth Circuit. It would be wonderful to see it completely destroy these ridiculous gun and magazine bans once and for all.  While he’s at it, he might take aim at Illinois and the rest of the “may issue” states and kick their asses into line too.

One thing is for certain. Unless we keep the pressure on Congress and demand our federal constitutional rights, and demand that the Senate confirm strong conservative judicial nominees, we can expect further erosion of our right to keep and bear arms.

Filibuster This!

So Chuck the Schmuck Schumer says that he is going to filibuster pro-Second Amendment Judge  Neil Gorsuch. I think that’s a fine idea for turning the Senate more Republican. But his filibuster needs a bit of tweaking.  In fact, Republicans should cooperate… sorta.

First, under the current rules, a filibuster does not shut down all Senate business. So long as the Majority and Minority leaders agree, business can continue on a two track plan. So our Majority Leader, that tower of Jello Mitch McConnell, should simply say “No.” Shut down the Senate while Schumer filibusters. All business stops. No two-tracking.  Nothing is more important than the Supreme Court.  If you want to filibuster, then by golly, do it the old fashioned way.  Moreover, instead of allowing this silent filibuster nonsense, make those democrats go to the floor and speak.  Make them do it the way their predecessors did.  When you make it easy to filibuster, you get more filibusters.

Then, while Democrats are making a mockery of oratory on the Senate floor, our President should identify all the 2018 Democratic senators, like Claire McCaskill in Missouri, and he should start holding big rallies in thin places like Kansas City, St. Louis, and Springfield, Missouri. Doing so would let McCaskill know that there are risks in opposing our president, particularly when her margin of victory the last time was the result of her opponent not being bright enough to keep his mouth shut.

She won’t be that lucky this time, and she’ll face formidable opposition from Republicans renewed in strength in Missouri. At this time, just in Missouri, Republicans control the House, Senate, and Executive branches. Only in cities like St. Louis and Kansas City with large numbers of urban voters do Democrats have any seats at all. And in the middle of the state, excluding the bastion of liberal thought that is the University of Missouri, support for Republican ideals is at an all time high. Missouri Republicans can field a great candidate for 2018, and McCaskill must already understand this. Holding rallies would, in the end, force her to cave.

Similarly, in New Mexico, Martin Heinrich won election in 2012 with only 51% of the vote. He currently has only a 46% approval rating. Given that Hillary won the state in 2016 with an 8% margin of victory Martin might feel pretty confident. But when Libertarian votes are thrown in – as they are apt to be in a Senate race – the state is pretty evenly split. A pro-Trump Republican has more than an even chance in New Mexico, and rallies in Albuquerque and Santa Fe, might generate enough pressure to force Heinrich to put his political survival ahead of his party loyalty.  That’s especially true where terrorism and immigration are getting as much play as they obviously are.

Bob Casey in Pennsylvania also might feel the heat, especially since Pennsylvania turned out for Trump in 2016. Trump doesn’t need to flip all the votes, just create enough pressure that the Democratic contingent calls “Uncle” and lets the up-or-down vote proceed. It would be a huge victory for our President and it would be the exact right way to handle a bunch of bullies in elected office.

As Gorsuch as demonstrated in his confirmation hearings he is a learned and fair justice, with strong beliefs in the Constitution. That seems to me to be exactly the right kind of guy to have on the Supreme Court.

Of course, the majority of Republicans want the Senate to kill the filibuster option altogether. That’s a bad idea. The process protects the minority, and even though the Democrats need more protection from themselves than they do from the political process (their instincts on where the country should be headed being clearly wrong), at some point Republicans could find themselves in the minority and that would be a bad time to whine about a process that they obliterated.

However, if after a month of the shutdown and the back-to-back rallies, cloture could not be obtained, then it would be necessary to nuke the rule and push Gorsuch through. If you don’t respect the limits of the protections offered by the filibuster, then you shouldn’t get to use the filibuster.

It’s pretty clear at this point that the country wants this judge. His popularity is through the roof, and his humble demeanor during the confirmation hearings is testament to the fact that he belongs on the high court.

Your Federal Tax Dollars at Work

Recently I went into the Eighth Circuit on an appeal of a case involving probably $50,000,000 in damages that should be payable to the United States. It was an interesting case, with many highly technical aspects that neither district courts nor courts of appeal see very often. And yet, in spite of this, this was the very first time I had been in front of a judge in this four year old case.

Supreme Court law (Matthews v. Eldridge if you care to look it up) holds that due process consists of two elements: notice and the right to be heard. Under current federal law, it really consists of only one right: the right to notice. Because in federal courts, you do not have a right to be heard any longer.

Walk into any state district or circuit court and you’ll find lawyers and judges working together to resolve cases. Lawyers and judges have case management conferences, and they often have informal conferences where the judge may urge parties to work together to settle a case. Judges in state court do not earn any more money by virtue of trying cases, but they know they only have so much time. So the limit their workload by working aggressively with lawyers to move cases. There is often no civil servant that works as hard as circuit court or trial judge.

Yet, these judges, in moving these cases, always give the parties a chance to argue the matter before they decide. On a motion to dismiss or a motion for summary judgment, the parties will usually have ample opportunity to present their views of the case to the judge and to advocate for their clients. The judge may well decide against them (judges do that half the time). But at least they had their case and their arguments heard.

It used to be that way in the federal court before e-filing and before the dawn of increasingly more complex litigation. Instead of working to simplify cases, lawyers in federal court now work to complicate them because they know that a confused mind “always says no.” In a case involving $6,000,000 stolen from the government several years ago, the plaintiff survived numerous motions to dismiss and a motion for summary judgment, only to lose on the even of trial to an untimely motion to dismiss. And during that time there had been zero hearings in front of the trial judge. Judges simply do not set them, or grant them when requested.

Maybe it’s easier to decide cases when you don’t have advocates trying to change your mind. Maybe it’s a function of an increased federal workload. And maybe, just maybe, it’s judicial laziness. Maybe it’s judges just tossing out cases right and left and leaving early for the day. And in federal court, each trial judge has two “clerks” – lawyers in their own right whose job it is to research and help write opinions. These clerks often do the bulk of the deciding that is done, and the judge signs the opinions. No wonder judges may not want to grant motions for hearings: imagine if it became clear that your clerk had done all the work and you knew next to nothing about the case.

Now, that’s not to say the all federal judges are this way. I ran into a federal judge this week who was studious, careful, and who really wanted the parties input into a complex procedural matter. He considered it carefully, and he asked good questions.

Several years ago I had a much smaller case that dealt with federal court jurisdiction. The opposing lawyer was a gentleman, a really good fellow who was representing a client and who did an excellent job briefing. I had done the same excellent job, and one of us had to win, while the other had to lose. When it came time for oral argument the female federal judge called us and held the hearing over the telephone. Now, if there was ever a case that could have been decided on the briefing, this was that case. But oral argument was useful to the judge, and she said so. It left me feeling that my argument had been heard. I lost that argument, but in the end the case settled because she had heard the motion and ruled it.   But these judges who hold hearings have become the Sasquatches of the federal courts, because most judges now simply do not allow the parties to come into court and argue, and refuse to hold telephone hearings.

Sooner or later this will change. It will change either when someone blows the whistle on the judges that don’t do their jobs, or it will change when the Supreme Court realizes that the errors it is correcting could have been caught at the district court level if someone had simply been interested enough to look at the record.

To clients it is impossible to explain that a man or woman they have never heard, never seen, and who hasn’t even had the courage to look them in their eyes, has just dismissed their case. Don’t get me wrong: the judge may be absolutely correct to take the action he is taking in dismissing the case. Not all cases are meritorious. But for some faceless, nameless disembodied decider to somehow be the final arbiter in a dispute seems foreign – and somehow anti-American – to most clients.

I look forward to the day when federal court judges are held to the same standards that state court trial judges are held. I look forward to having a rule that says that every summary judgment motion and every motion to dismiss will only be decided after oral argument on the motions.

But that day is not today.

Today, Lady Justice is not only blind. She’s deaf as well.