November 25, 2007

Romney, the Courts, and the Constitutions: Part 5 — The Next President and the Courts

Filed under: Taxes & Government — Tom @ 10:58 pm

Let’s recap the previous four posts.

Part 1 reviewed the inclusion of subsidized abortion in Commonwealth Care, aka RomneyCare. Key points:

  1. A “ruling” by the Supreme Judicial Court (SJC) in the Commonwealth of Massachusetts is a “statement of belief”; it is NOT an order that must be followed.
  2. The legislature is not compelled to follow the suggestions of the SJC, and as such, the suggestions of the SJC only carry weight if and when the legislature passes a law and the governor signs it.
  3. The SJC “ruled” twice, once in 1981 and another time in 1997, that that an enrollee in a state-subsidized health plan, such a Medicaid has a right to access to abortion services as part of that plan — but, it appears, the legislature had never passed a law authorizing the provision of those services.
  4. Depending on its “justification,” the inclusion in RomneyCare of access to abortion services with a $50 deductible either represents the expansion beyond Medicaid of an extra-legal provision of such services that now goes back over a quarter-century (if, as I suspect, no law has ever been passed and RomneyCare continues that quarter-century “tradition”), or it legitimizes state-subsidized provision of these services for the first time (if RomneyCare’s language specifically addresses provision of abortion services).

Part 2 addressed the SJC’s same-sex marriage ruling in the Goodridge case. Key points:

  1. The SJC majority, despite that fact that an existing (and still in intact existence) Bay State law defines marriage exclusively as a one-man, one-woman arrangement, unilaterally attempted to “refine” the common-law definition of marriage, and to say that the “refined” definition trumped the state law’s legal definition. This is incoherent on its face, both because there is no such thing as common-law marriage in Massachusetts, and because statutory law, when it exists, trumps conflicting common law, no matter how refined.
  2. The court knew, as did virtually everyone else (up to and including the likes of Lawrence Tribe and counsel for the original Goodridge litigants), that the legislature had to change the relevant marriage statute for same-sex marriage to become legal in the state. The court “ruling” (again, a “statement of belief”) suggested 180 days. Passivity was not a relevant option.
  3. Without enabling legislation, the executive branch, headed up at the time by Governor Mitt Romney, had no authorization to begin issuing same-sex marriage licenses and to force state and local officials to participate in their issuance. But that’s exactly what Romney did, because the legislature never passed any enabling laws, and no related constitutional amendment has ever been placed before the voters. He didn’t have to do what he did, and in fact, by unilaterally implementing same-sex marriage in Massachusetts without authorization, he violated his oath of office.

Part 3 carried various excerpts, statements, and comments relevant to the same-sex marriage issue and the complete constitutional breakdown that ensued in the wake of the SJC’s Goodridge ruling.

Part 4 dealt with a 1988 ruling by the US Supreme Court, specifically Communications Workers vs. Beck (“Beck”), a “landmark” decision that limited compulsory union dues payments to union business, and prohibited compulsory dues or other payments relating to union political activities. The post’s key points:

  1. Beck is not, despite the ruling, “the law of the land” in most states. Only those states which have passed legislation enshrining the principles of Beck into law have accomplished that. Congress has never passed Beck-implementing legislation.
  2. The lack of federal legislation has limited presidential administrations supportive of the ruling, specifically Bush 41 and Bush 43, to issuing Executive Orders designed to ensure that federal workers and workers on federal projects are informed of their Beck rights.
  3. The lack of federal legislation enabled the Clinton administration, which disagreed with Beck, to not only repeal Bush 41′s related Executive Orders, but to openly “defy” it by refusing to enforce it. Properly stated, though, this refusal was not “defiance” at all; it was really compliance with properly understood constitutional separation of powers. In fact, absent enabling legislation, the executive branch cannot legally take any action to enforce Beck.
  4. To this day, the only way to enforce Beck in most states is for aggrieved workers to bring action in the courts to force their recalcitrant union officials to comply with it.


Conservatives and strict constitutional constructionists have a nasty habit of complaining about judicial usurpation of power, yet they fail to invoke what appears to be an obvious answer. This became strikingly clear as I reviewed “Men in Black,” the 2005 best-seller by Mark “The Great One” Levin. Levin, who is the head of the Landmark Legal Foundation, an adviser on legal matters to talk radio kingpins Rush Limbaugh and Sean Hannity, and now a talk-show heavyweight in his own right, is a living legend in conservative circles.

Yet here is Levin sidling up to the water, but deciding not to drink, in his discussion of Marbury v. Madison, which established the principle of judicial constitutional review (Page 33):

Neither the history of our founding nor the establishment of our government supports the current arrangement in which the judiciary rules supreme. ….. For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.

Largely? Does he mean there’s an exception? Well, there’s at least one, described circuitously and I believe somewhat incorrectly in Wikipedia:

In reaction to this decision (in Worcester v. Georgia), President Andrew Jackson has often been quoted as defying the Supreme Court with the words: “John Marshall has made his decision; now let him enforce it!” Arguably because of a legal loophole, he had no grounds for becoming involved unless the Georgia courts formally defied the Supreme Court. That did not happen since Georgia simply ignored the ruling and refused to release Worcester from prison. What Jackson actually said was that “the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” Jackson’s opponents criticized him for failing to act against Georgia, but even if he had wanted to intervene—and he did not—it is questionable whether he had any legal authority to do so (Prucha, p. 212).

Perhaps fearing the possibility of a showdown between the Supreme Court and the Executive, and realizing the real likelihood of Jackson refusing to adhere to the Court’s pro-Cherokee decision, the Justices did not follow the standard procedure of requiring federal marshals to carry out the decision. In doing so, the Supreme Court implicitly permitted Andrew Jackson not to carry out the decision, thus avoiding the possibility of a political conflict between two branches …..

I believe the incorrect part has to do with the federal marshals.

While United States Marshals Service is indeed “the enforcement arm of the federal courts,” the marshals work for the Department of Justice, which is presided over by the US Attorney General, which is in turn part of the Executive Branch. The marshals do not work for the Supremes, or for anyone else in the judicial branch.

Based on this structure, I therefore believe that the Supreme Court and other federal courts cannot force US Marshals to carry out their “orders” without permission from appropriate folks within DOJ. In fact, such “orders” may not be enforceable until DOJ give the okey-dokey to what the courts want.

It would appear that if a President objected to a particular court order, he could order his Attorney General not to cooperate with the court order and not to provide US Marshals to carry it out. If Congress didn’t like that, it would, I believe have to pass a veto-proof law to force the president to do what he didn’t want to do.

Why Levin didn’t spend time on the Jackson matter in his 200-plus page book is a mystery. Is he too timid to play the direct confrontation card, or is he convinced that his audience is too conditioned to the “tradition” of judicial tyranny to deal with it? The smart-aleck response would be that I’m misinterpreting what is plainly in front of me, and that the Jacksonian precedent means nothing. Fine — If I’m wrong, tell me why in a comment or an e-mail.

The problem is that the next president faces several key challenges when it comes to the courts, and may need to invoke the spirit of Andrew Jackson in meeting those challenges.

For example, what if the Supremes rule 5-4, or even 9-0, that there is no right to individual gun ownership despite the plain-as-day language of the Second Amendment? Further, what if in the course of denying that right, the Supremes base their decision at least in part on the fact that many Western countries already ban individual gun ownership?

Shouldn’t the proper response from the President and Congress be, “Well, that’s fine that you folks think that, but you obviously can’t read the Constitution, and you have no business bringing the laws of other countries into your deliberations. Your opinion is just an opinion, and we will ignore it”?

Before you recoil, recall that President Clinton would not enforce the Beck decision, even though it IS constitutionally consistent with the First Amendment, and that in the absence of congressional legislation implementing the opinion, Clinton was in the right not to enforce it.

The next president, and the next Congress (though I hold out little hope for it), may well have to directly confront the courts if they:

  • Use anything other than the Constitution as a basis for decisions rendered. There may be a place for foreign-law concepts in the US, but if there is, it will have to be incorporated into the law through legislation and/or constitutional amendments, not forced in through judicial fiat.
  • Issue opinions that are clearly in conflict with the Constitution’s plain language, as per the 2nd Amendment example above.
  • Overstep their bounds in law-enforcement matters that are solely within the purview of the executive branch and congressional oversight. The micro-management of surveillance of non-citizens comes immediately to mind.

One of the more important questions voters will need to ask themselves is how the various presidential candidates, if elected, might respond to the need to confront the courts.

I believe that the Democratic candidates will rush to implement the ones they like, even absent the legislative authority to do so, and that they will defy the ones they don’t like. As with Beck and Bill Clinton, if there isn’t legislation enabling a decision to take effect, the position not to enforce would appear ordinarily to be defensible, in fact, usually required.

Of the five GOP candidates who appear to be viable, here are my takes. The first four are guesses, while about the last one I am nearly certain:

  • Giuliani — I suspect he will be defiant if he feels that he has the justification. He may even relish the challenge. The downside is that he may accept or even agree with a gun-grabbing court ruling.
  • Thompson — Better on the issues that might be chosen for confrontation, but may be less willing to assert himself.
  • McCain — Like everything else with McCain, almost impossible to predict. My guess is that any confrontation would be based more on opportunism than on principle.
  • Huckabee — I see little reason to expect anything but acquiescence.
  • Romney — Mitt Romney is a smart guy, and a Harvard Law grad, so he doesn’t seem to deserve the benefit of any kind of doubt over what he did in, and to, the rule of law in Massachusetts while he was its governor:
    – First, state provision of subsidized abortion services, while “required” by Supreme Judicial Court decisions, has most likely never been formally enacted into law, and therefore is not the law of the state. Yet in RomneyCare, the former governor has at a minimum given the practice wider validity and acceptance. And if subsidized abortion services somehow were specifically authorized in the RomneyCare law’s text, he has fully legalized subsidized abortion services in the Bay State for the first time — and he has done it after he had a supposed epiphany over the fundamental immorality of abortion.
    – Second, in his handling of the same-sex marriage issue, he has shown, despite surely knowing better, that he is indifferent to the strict relationship boundaries between the branches of state government in Massachusetts. The SJC’s Goodridge “ruling” was first, not enforceable without enabling legislation, and second, did not itself pass a constitutional stench test, let alone a smell test. Yet Romney implemented something that never became law, and constitutionally couldn’t become law. Not only did he not have to implement same-sex marriage, by doing so he violated his own sworn duty to defend the state’s constitution.

While the first four candidates noted may or may not be up to the challenge of confronting a runaway judicial system, we know for certain from Mitt Romney’s conduct while governor that he is not. In fact, Romney record indicates that he is more likely to encourage our ongoing devolution into government by whim and our further abandonment of government by rule of law. Absent satisfactory explanations for all of this, he is clearly an unacceptable presidential candidate.

Couldn’t Help But Notice (112507)

Robert Redford ripped into Al Gore (HT Noel Sheppard at NewsBusters) as a cynical opportunist who is taking the easy way out:

Asked why he thinks Gore is not going back into politics, he says: “What’s most important – to be a hero to your country and go save it . . . or do you want to be happy and rich and be a hero and not get into the political scene?”

Here’s Al’s answer to Redford:

Mr. Gore has the chance to achieve enormous wealth after being named last week as a new partner at the famously successful venture capital firm Kleiner Perkins. No fewer than three of his new colleagues sit on the Forbes list of wealthiest Americans.


Catching enviros in fuel-burning hypocrisy is getting too easy:

….. the management of Bali’s Ngurah Rai International Airport are concerned that the large number of additional private charter flights expected in Bali during the UN Conference on Climate Change (UNFCCC) December 3-15, 2007, will exceed the carrying capacity of apron areas. To meet the added demand for aircraft storage officials are allocating “parking space” at other airports in Indonesia.

Haven’t they heard of Webex?


As the DC handgun ban case will now be heard by the Supreme Court, Amy Alkon has some thoughts on its obvious ineffectiveness.
One of her commenters (no direct link; just scroll to about the fifth one) makes an important point about arguing that the various National Guard units represent the Second Amendment writers’ modern version of the “state” militias:

….. in case someone tries to claim the the National Guard satisfies the definition of “militia”, ask them to go read the fence around the National Guard property. It says, “Property of the US Government”. This should be more effective than pointing out that the NG wasn’t established until 1905.

Another thing to consider: If the National Guards were “state” militias, I would think that they would have had a choice as to whether or not to go to Iraq when called, and they did not. If they were truly “state” militias, surely one or more would have refused to go in the four years of the war.


It is clear that 2007 will be a year of amazingly low murder and other crime statistics in New York City:

New York City is on track to have fewer than 500 homicides this year, by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963.

But within the city’s official crime statistics is a figure that may be even more striking: so far, with roughly half the killings analyzed, only 35 were found to be committed by strangers, a microscopic statistic in a city of more than 8.2 million.

If that trend holds up, fewer than 100 homicide victims in New York City this year will have been strangers to their assailants. The vast majority died in disputes with friends or acquaintances, with rival drug gang members or — to a far lesser degree — with romantic partners, spouses, parents and others.

….. This year, with 428 killings logged through Sunday — 412 actual killings plus 16 crime victims who have died this year from injuries sustained long ago — the average number of killings is a bit more than one a day.

….. police statistics, which are subject to an internal auditing system in use since the early 1990s, show dips in six of the seven major crime categories, according to the department’s latest reports.

As of Sunday, overall crime was down 6.47 percent, compared to the same period last year. In addition to the homicide rate, the number of rapes, robberies, burglaries, grand larcenies and car thefts are all on the decline.


  • It’s impossible to miss how mightily the New York Times struggled to avoid mentioning Rudy Giuliani’s name, even though the article noted the steep drop in murder and crime that began in the early 1990s.
  • The fact that a city that a city that is many times larger than the cities with the worst murder and crime rates can be so orderly ought to be shaming the smaller ones into imitating its policing approaches. But it appears not. Philadelphia had over 400 murders in 2006, and has less than one-fifth the population.
  • It’s a good thing the crime stats started dropping decades after Gotham’s strict handgun-control laws went into effect, or we’d be hearing a never-ending stream of claims that those laws caused the decreases.
  • I’m actually surprised that gun grabbers don’t try this argument: “New York City’s last 17 years of progress demonstrate what restrictive gun laws and effective policing can accomplish in tandem.” Maybe I should shut up about that.

Positivity: Four-year-old helps rescue mom

Filed under: Positivity — Tom @ 7:00 am

From Lawrence Township, near Ironton, Ohio:

Monday, November 19, 2007 10:25 AM CST

His green T-shirt reads “Mommy’s little hero,” and though he’s only 4, his mom will tell you he earned that title.

Tara Ferguson, of Lawrence Township, said she is thankful to be alive and has her son, Clay, to credit for it.

In August, the Fergusons moved into a new home on County Road 6. Husband, Jon, and the two older children, Luke, 5, and Katelyn, 8, were away at work and school and she was home with Clay.

Tara Ferguson said she was putting things away one day when she slipped on a trash bag, fell and hit her head.

“I went down, fell sideways and knocked myself out,” she recalled. “When I woke up, I couldn’t move and I couldn’t use one side of my body.”

Making matters worse, the only telephone available was a landline that was too far away for her to reach. Having never taught Clay to use the phone to dial 9-1-1, she asked him to hand her paper and a pencil. She drew what numbers she needed him to dial and told him to dial those numbers and tell the people on the other end she was hurt.

“When the first call came in, he hung up. We tried to call back and there was no answer. I was ready to send the sheriff’s office when he called back,” dispatcher Gina Delong recalled.

“I told them, ‘Mommy fell,’” Clay recalled.

Though he did not know his street address, Delong and fellow dispatcher Mickee Fry used the Enhanced 911 system to determine where the Fergusons’ house was and sent emergency services workers to find the injured woman. …..

Go here for the rest of the story.