Donald Trump’s conservative victories have been huge, but unless Congress reasserts its powers and restrains the Courts, his gains will be ephemeral.
The Heritage Foundation, perhaps the leading conservative think-tank, is over the moon with what President Trump has accomplished to date. This from the Washington Examiner:
With unprecedented speed, the Trump administration has already implemented nearly two-thirds of the 334 agenda items called for by the Heritage Foundation, a pace faster than former President Reagan who embraced the conservative think tank’s legendary “Mandate for Leadership” blueprint.
Thomas Binion, director of congressional and executive branch relations at Heritage, said that Trump has implemented 64 percent of the “unique policy recommendations” from the group.
At this stage of his presidency, Reagan had completed 49 percent of the Heritage policy recommendations.
“We’re blown away,” Binion said in an interview. Trump, he said, “is very active, very conservative, and very effective.” . . .
I share in the Heritage Foundation’s appreciation for Trump, the blackest of black swans. True, Trump appears on the surface to be a loose cannon and given to extremes of hyperbole, as befitting any New York hustler.* I have made peace with that, though — I studiously ignore everything Trump says or tweets, leaving that for the neo-Marxist media to feed upon while Don Surber and Scott Adams interpret it for the rest of us. And I will be holding my breath every day Trump is in office. On the other hand, I stand in awe of his effectiveness and that of his administration to date and would, this time enthusiastically, vote for Trump again.
All of that said, if Trump does not work with Congress to address several key reforms, his legacy will be as ephemeral as Obama’s has proven to be. Worse, given where we stand today, still near the precipice of making the Constitution a useless piece of old paper, it is almost assured that the next radical neo-Marxist who takes the Presidency will take us over that precipice. We absolutely must have structural reforms to return us to government by the Constitution. The neo-Marxists should only be allowed to remake America if they can do so by force of persuasion and the ballot box as our Founders provided.
Reform number 1, needed above all, is to restore the Constitution’s Art. I, Sec. 1, that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The vast majority of legislation over the past half century has come not from Congress, but from a regulatory bureaucracy passing regulations with the force of law and without a vote of Congress. Congress needs plenary authority to review each and every regulation and either give it de facto approval by allowing it to pass into effect or, when needed, bring it within the ambit of Congress and subject it to a vote of our elected representatives.
There is a piece of legislation that, while imperfect, would largely accomplish this — The Reins Act, touted publicly by just about every conservative Congresscritter as recently as a year ago. It died in Senate Committee at the end of last year and its passing went unmarked.
For the longest time, I thought it was only the Democrats who supported the utter Constitutional abomination of using the regulatory bureaucracy to bypass Congress. It is crystal clear now that a large cohort of Republican congresscritters also support it, likely because the REINS Act would mean they would have to take tough votes on controversial issues. Rat bastards. That is their job. There is no legitimate excuse — zero — for not passing the REINS Act.
Trump is succeeding in large measure today because he has appointed regulators who have been undoing the worst of past regulatory obscenities, such as the EPA’s Clean Power Plan; the HHS assault on Christianity; and the FCC’s internet takeover. While all of that is necessary, it is not a substitute for restoring Art. I, Sec. I, the single most important clause of our Constitution. Trump needs to lean heavily and publicly on Congress to pass the REINS Act or he will ultimately fail to the extreme detriment of us all.
Reform number 2 is to establish what is and what is not a foreign treaty that can, per the Constitution’s Art. II, Sec. 2, only come into force upon approval of two-thirds of the Senate. Obama ignored the clause, claiming that two major agreements that he entered into, the Paris Accords and the Iran Agreement, were executive agreements that did not need the approval of the Senate. Both of those agreements had deeply consequential ramifications for America, both involved the transfer of U.S. funds to a non-U.S. third party without the vote of Congress, and the Iran Agreement violated or worked as a de facto abrogation of U.S. laws.
Thank God Trump pulled us out of the Paris Agreement, the neo-Marxist nose under the tent to world government and its access to the U.S.’s wealth, though he only did so after Obama had already sent the corrupt UN Climate Fund one billion U.S. tax dollars without any Congressional authorization. Unfortunately we are stuck with the long-term effects of Obama’s obscene deal with Iran, the world’s greatest sponsor of terrorism and a nation that cannot ever be allowed to ever possess nuclear weapons. Neither deal should ever have been allowed without an affirmative vote of two-thirds of the Senate, but Obama inked both deals, cynically pushing the argument that what constitutes a treaty is ambiguous.
Congress needs to act on this with a law declaring that any agreement with a non-U.S. party that would require the transfer of tax dollars, that would violate or abrogate any U.S. law, or that would require future legislation by Congress to enter into compliance is a foreign treaty subject to the requirements of Art. II, Sec. 2. Of course unstated is that the Congresscritters then need to have the testicular fortitude to impeach a President, black or white, man or woman (or whatever), who repeats what Obama did, and to bring criminal charges against anyone in government who effects the transfer or funds while impeachment is pending.
Reform number 3 is Court reform. I’ve dealt with this issue at length elsewhere. Our U.S. Court system, deemed the “least dangerous branch of government,” has been warped over the past century into the most dangerous thanks to an unbroken line of progressive jurists. When a Presidential election can turn on the issue of the jurist the winner might nominate to the Supreme Court, we are completely out of the constitutional balance envisioned by our Founders. It needs to be restored or it will be the Courts that will be (and even now are) the ultimate deciders of our policies and laws, not We the People, who are given the sole power to amend the Constitution per Art. V; not the legislature given the sole power to declare our laws per the Constitution’s Art. I; and not the President, given sole power for executing those laws and managing foreign and military policy per Article II.
The most recent of our out of control Courts is exposed Zarda v. Altitude Express, Inc., a case that the Second Circuit, sitting en banc decided within the last few days. In that case, Plaintiff asked the Second Circuit Court to decide that the Civil Rights Act of 1964, which Congress wrote to protect people from discrimination on the basis of their “race, color, religion, sex, or national origin,” also protects gays on the basis of their sexual orientation.
It does not matter whether one thinks this is good policy or bad. It only matters whether the Congresscritters who voted on the Civil Rights Act in 1964 actually intended to extend the protection of the act to people based upon their sexual orientation or identity (that is, their sexual identity separate from their XX and XY chromosomal sex). If not, then only Congress has the power to amend the law. And as both the majority opinion and the dissent cannot help but make amply clear, Congress in 1964 did not intend to protect homosexuals or the transgendered. The Second Circuit’s overstep is so grotesque it justifies Congress voting to remove every Judge who joined the majority opinion in that case for failing to comply with the Constitution’s Art. III, Sec. 1 limitation that they should only remain as appointed judges upon “good behavior.”
We see a similar thing playing out at the state court level today in Pennsylvania in a case with national ramifications. In Pennsylvania, the state Constitution gives to the legislature the job of drawing electoral maps. The Courts of Pennsylvania, dominated by Democrats, stripped the legislature of that power and redrew the map themselves, making it so outrageously in favor of Democrats that several have labeled it, rightfully, a coup. Our federal Supreme Court refused to hear an appeal of that decision.
Bottom line, this is not one where the Pennsylvania legislature, with a Republican majority in the state House and a Republican supermajority in the state Senate, should appeal. This is the perfect case for the legislature to use its own powers to begin Court reform in this country. Republican legislators should bring articles of impeachment under the Pennsylvania Constitution against the judges who voted to usurp legislative authority. At the same time, the legislature should vote to restore its district map and declare the Judge drawn map void as beyond their authority. Molon labe.
A third example is DACA, the Deferred Action For Childhood Arrivals program, which Obama created with a few strokes of his pen. It was and is the very definition of tyrannical rule, for it was not a mere matter of Executive discretion, it was the President assuming the power of legislation to work a change to existing laws. Again, it does not matter whether one agrees with the policy or not; there is no way in hell this obscenity should be allowed under the Constitution. Trump, as a political matter, has continued the policy for a temporary period waiting for Congress to act, but under the circumstance, that is a reasonable act of discretion.
What was wholly unreasonable was for a pissant judge to decide that he, not Trump, should exercise Trump’s powers under the Constitution’s Article II. The Court held Trump cannot undo with his pen what Obama unconstitutionally did with his. This is of course just the latest of the Courts’ new assumption of power since Trump’s election, to exercise control over acts Constitutionally given to the President. We’ve already seen the Courts hold Trump’s temporary limitation on immigration from certain countries unlawful without ever mentioning the applicable laws, and we have seen a Court decide that it, not Trump, should decide military policy. Each and every one of these is as intolerable as it is unconstitutional. Let there be no doubt: We exist today in a Constitutional Crisis because of all of this.
Trump is reacting with wholly unwarranted restraint to these unconstitutional acts. Of course, my preferred course of action, involving copious amounts of tar and feathers in addition to impeachment and removal, is likewise probably too far in the other direction.
The problem with Court reform is that it could well be misused to remove judges solely on the basis of political disagreements. So any such reform must be narrowly tailored to reasonably protect against that. Such reforms should include:
- Congressional guidance on how Courts are to interpret laws and the Constitution. All decisions must be firmly grounded in consideration of the original intent of the drafters and those who voted for the article, amendment or legislation. Any subsequent case can only be deemed as legitimate precedent for a Court decision if it likewise is grounded in the original intent of the drafters.
- If the elements of the question at issue existed at the time the legislation or Constitutional article or amendment was passed, but there is no evidence that it was addressed by the drafters, then it is not within the power of the Court to decide the question. For instance, legislative history shows unequivocally that the 14th Amendment was meant to place blacks on equal footing with all other citizens, thus the Court’s decision a century later to allow interracial marriage was firmly grounded in original intent. Homosexuality existed at the time the 14th Amendment was passed, but there is no evidence whatsoever that the 14th Amendment was passed to give homosexuals equal footing. Thus anything argued as a right of homosexuals, from protection under the Civil Rights Act of 1964 to homosexual marriage, is a question only the legislature has the power to address.
- The powers of the various branches set forth in the Constitution are plenary and cannot be amended or altered by the Courts or the legislature. Thus, no Court may insert their policy preference in place of the President’s as regards the military or national security, nor insert their policy preference in regards to legislation passed by Congress.
- The powers of the regulatory bureaucracy, none of the agencies appearing as authorized entities by the Constitution, must be interpreted narrowly by the Courts against a finding that an agency has authority to wield a particular power absent clear Congressional guidance to the contrary. Thus there should be no question that the FCC did not have the power to regulate the Internet as a result of a 1930’s era law, nor that the EPA had a right to redefine the term “navigable waters” to include non-navigable waters based on a theory of attenuation.
- The legislature must have a right to act as a check on a Court system that has claimed for itself the right to pronounce Constitutional law that could only be Amended by extraordinary acts per the Constitution’s Art, V. A two-thirds majority of Congress should be able to overturn any decision of the Supreme Court on Constitutional law and return the decision to the Court for reconsideration congruent with the Congressional action.
- A judge who decides a case in a manner that clearly violates any of the above is not considered to be acting within the “good behavior” requirement of the Constitution’s Art. III, Sec. 1. and can be impeached by a majority vote of the House and a two-third’s majority vote of the Senate.
That is it. There are of course other, lesser reforms needed. In particular, I think it essential to reform how science is funded and performed in this nation. Congress needs its own reforms, such as doing away with the Senate filibuster. That said, it is only the three reforms enumerated above on which the future of our nation hangs. Trump absolutely needs to address them or he and his administration will be deemed nothing more than a shining speed bump in the history books yet to be written.
*Bookworm here: Apropos the loose cannon thing, I note that conservatives are terribly worried about Trump’s suddenly sounding the attack on the Second Amendment and those weapons that Leftists call “assault weapons” or “assault-style weapons.” (See here, for example.) Maybe we should be worried. Or maybe Trump is doing his usual stating an idea to see whether his base tolerates it, or dangling a carrot before Leftist noses only to pull it away, without ever intending to follow through. I’ll worry only when I actually have to worry but . . . President Trump, if you’re reading this blog, I’m your base and what you seem to have said today about abandoning the Second Amendment and embracing gun control is an absolutely awful idea.