The Evils of Supreme Court Democracy (Part II)

There were obvious flaws in the Constitution regardless as to whether or not the United States was a Republic. First, it allowed slavery and second, it held women in low social standing. The 1842 case Prigg v. Pennsylvania found that the Fugitive Slave Act of 1793 preempted Pennsylvania legislation that prohibited blacks from being removed from the state and put into slavery. The Court cited the necessary and proper clause in its decision which allowed the federal government to encroach on its enumerated powers. If Congress could pass a slave law and the Supreme Court could uphold the law as being constitutional, then the U.S. was a democracy following the majority opinion of the national sentiment at the time: to oppress blacks. If the U.S. was a Republic the Supreme Court would have nullified the Fugitive Slave Act for failing to provide life, liberty, and happiness to blacks. The 1957 famous case Dred Scott v. Sanford found slaves or freed blacks were not rightful citizens and therefore, blacks had no standing in the Supreme Court. Chief Justice Taney ruled that slaves were “property” and slave owners were allowed due process of the law when deprived of their property. After the Civil War, the Constitution was amended with the Thirteenth Amendment (emancipation of all slaves), Fourteenth Amendment (holding states to the Bill of Rights and privileges and immunities of individual) and Fifteenth Amendment (allowing black men the right to vote). Privileges and Immunities are defined in the 1823 case between Corfield and Coryell by Justice Bushrod Washington “the enjoyment of life, and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety ….”. This language was also found in the Massachusetts constitution and was used by the Massachusetts Supreme Court to outlaw slavery. However, the Fifteenth amendment’s reference to “men” would deprive women of many rights and it took the Twentieth Amendment to overcome this error and provide women the right to vote. For instance, the 1876 case Bradwell v. Illinois, by an 8-1 vote, the Court denied Myra Bradwell the right to practice law even though she had passed the bar examine. The rationale was simply because Bradwell was a woman.

During the 1880s there were many civil rights cases. In these cases a majority of the Court ruled that the Thirteenth Amendment only applied to slavery and not lesser acts of discrimination. The Court also decided that the Fourteenth Amendment only applied to discrimination conducted by states and not actions taken by individuals. In the 1873 Slaughter House Cases, the Court redacted the vitally important “privileges and immunities” clause from the Fourteenth Amendment. By doing so, the Court denied New Orleans butchers the right to practice their trade without reasonable regulations. The Court majority decided that the “rational” narrative for their decision was to protect the health and safety of the people in New Orleans. That may be a legitimate narrative, but there was also a corruption narrative for creating the butcher’s monopoly in New Orleans that was obviously ignored by the majority. In fact, there were also two racial narratives: one for the statute, and one against it. And the “southern” racial point of view won by gutting the Fourteenth Amendment to prevent “privileges and immunities” from ever being applied to black discrimination cases in the future (the Court would eventually rely on the due process clause of the Fourteenth Amendment to end racial and gender discrimination). With so many narratives, it is best to stick to the text of the constitution when deciding cases of such importance (it was the first Fourteenth Amendment case). If the case was decided on the constitutions text, the dissenter’s argument would have won the day: a person has the natural right to pursue a lawful occupation subject to reasonable regulation. A reasonable law must be both rationale while not being arbitrary. A law must pass both tests of reasonableness (rationale and non-arbitrary) to be constitutional. While the majority found one of several possible rationale narratives to meet their standards, they did not address the arbitrariness of the law which restricts some butchers far more than others. Hence, regardless of the rationale in this case, the law was arbitrary because it discriminated against a large majority of the butchers and therefore, the law was an improper use of police power. In United States v. Cruikshank the Supreme Court invalidated the Civil Rights Act of 1875. Cruikshank’s murder conviction for lynching two blacks was overturned because the Fourteenth Amendment only applied to states, not individual crimes and discrimination. So it should come as no surprise in the 1896 case Plessy v. Ferguson the Court ruled that segregation was acceptable so long as both Whites and Blacks have equal access - it is not discriminatory or arbitrary. The majority theorized the decision to segregate was rationale for the purpose of protecting the peace. These types of rulings happen for one basic reason: the Court is not practicing the law, but are instead influenced by the democratic majority of social sentiments at the time. One democratic lawyer proposed: “judges can only disregard a statute when those who have the right to make laws have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question.” Hence, the rationale and arbitrary test standards are so low or non-existent when ruling on the constitutionality of laws.

Oliver Wendell Holmes in his dissent in Lochner v. New York in 1905 wrote “I think the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion.” Holmes is preaching majority rule and not the law. In Lochner, the Court rightly struck down a provision of a New York law limiting the hours for bakery employees to 60 hours a week. The Court did however make an error by elevating the “liberty of contract” to a fundamental right. “Majority rule” was the same attitude that President Teddy Roosevelt had when he said “the majority have the right to rule in the name of the will of the people”. Teddy Roosevelt made the Lochner decision a part of his 1912 progressive platform for president. It was Woodrow Wilson that gave us the concept of a “living constitution”. In other words, the constitution’s meaning changes over time to meet those ideas and concepts proposed by the majority. Wilson also gave us the Sixteenth Amendment in 1913: the Income Tax (previously ruled unconstitutional by the Supreme Court) giving the Federal Government coercive power over the states and Seventeenth Amendment also in 1913: the election of Senators via a popular vote taking more power away from state legislatures to stop federal government encroachment. Wilson was infamously known for being a bigot who favored segregation as the Court decided in the Plessy decision. Worse yet, as President, Wilson implemented segregation policies for all federal offices.

The Evils of Supreme Court Democracy (Part I)

This article is based off Randy E Barnett’s book: Our Republican Constitution. Randy is a Georgetown Law professor who was involved in the ObamaCare Supreme Court case as well as Gonzales v. Raich. Our Founding Fathers did not create a Democracy, they created a Republic. “We the people” of the constitution does not mean that government protects the rights of the majority, instead it means that government protects the rights of all individuals. First comes our rights then comes government to protect those rights. The Constitution fails to meet Democracy criteria (majority rule) in many respects: The Electoral College, the Senate, the presidential veto power, separation of powers, and only specific enumerated powers for the federal government to name a few. However, it is the Ninth and Tenth Amendments that have the language of a Republic. The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The important language in these amendments are the phrases “retained by the people” and “or to the people”. This language implies that the individual people are sovereign and government’s role is to protect the rights of the individual person. James Madison explains in Federalist 10 why Democracies do not work. Madison explains how factions of groups form and those factions with the most power are the majority. Madison’s theory was that a country the size of the United States can marginalize the effects of factions (probably true before technology). In Federalist 45 Madison explains how the Federal Government powers are few and defined while the state powers are many and unlimited. In Federalist 78 Hamilton explains that it is the “duty” of the Supreme Court to keep the Legislative Branch in check from encroaching on its powers: “declare all acts contrary to the manifest tenor of the Constitution void”. However, in Madison v. Marbury in 1803 the decision to implement “judiciary review” clearly infringed on Hamilton’s viewpoint in Federalist 78. Judiciary review means the Supreme Court can only rule on cases that are brought before the court via lawsuit. Hamilton proposes all laws be reviewed for constitutionality regardless of judicial status.

So what are the fundamental (natural) rights of individuals that government is to preserve at all cost? These can be found in the Declaration of Independence, Constitution, and in the Constitution of many states. Those rights include: Life, liberty, happiness, safety, and acquiring, possessing, and protecting property. These are our fundamental “natural rights” that we are born with. In Chisholm v. Georgia (1793) the Court ruled that individual citizens could sue state governments because sovereignty rests with the people as Justice James Wilson proclaimed in his majority decision. Only Justice James Iredell sided with Georgia invoking “legislative power” of the majority holds sovereign power over the individual person. However, the ratification of the Eleventh Amendment in 1795 superseded the Chisholm decision. In 1890 the case Hans v. Louisiana the Court’s Justice Bradley overruled the principals of sovereignty held in Chisholm by siding with the views held by a single Justice in that decision: Iredell. Justice Bradley also conveniently ignored Justice John Marshall’s view in Fletcher v. Peck. Marshall said individuals suing state governments may no longer be in the constitution, but Chisholm was the proper interpretation of the intent of the Constitution. In other words, the Eleventh Amendment does not change the meaning of the Constitution, it merely prohibits citizens from suing states. Hence, despite the Eleventh Amendment citizens are still sovereign within the structure of the Constitution. Marshall was not perfect however, when he ruled that the National Bank proposed by Hamilton two decades earlier was constitutional in Maryland v. McCulloch (1819). Marshal used the same necessary and proper clause argument proposed by Hamilton. The ends in McCulloch may have justified the means (collect taxes), but there were less evasive and complicated means to obtain the ends without encroaching on state rights and therefore in my view the law was not rationale. The decision may had been different if it was decided at the time it was being debated in Congress. Andrew Jackson would abolish the United States bank 15 years later proving it was not “necessary”.

The Evolution of the Commerce Clause (Part IV)

The 2000 case between Reno v. Condon the Court held the Driver’s Privacy Protection Act of 1994 (DPPA) was Constitutional. Chief Justice Rehnquist wrote the unanimous decision citing the commerce clause. Since Nevada was selling personal information of driver license applicants, the Court ruled that they violated the commerce clause because some of that information can travel across state lines. Rehnquist also held that the DPPA law was not coercive in any matter. The Court’s imagination for creating new rights in the Constitution is only matched by the Court’s imagination to find applications for the commerce clause. In Hunter v Pittsburg in 1906 it was established that States can make bad laws (as long as they did not violate the liberty of individuals). The Nevada law’s attempt to get more revenue was not much different than ObamaCare’s mandate to get more revenue – both uniquely bad in nature. In Reno, the Court assumes some information will cross state lines without actual proof that it is happening. However, in Filburn, it was established that 0% of goods have to cross state lines for it to be considered violating interstate commerce. The Court’s rationale was that since Filburn had more crops to feed his assets, less crops would have to travel to his state. The DPPA is further proof of how powerful and how imaginative the federal government and the Court has become in applying the commerce clause. There is one question the Court has refused to answer over years while strengthening the commerce clause: What State economic activity is free from any commerce clause intrusion?

The 1996 case between Seminole Tribe v. Florida was a very interesting one. In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA) requiring States to negotiate with Indian Tribes for gaming contracts and licenses. However, Florida refused to negotiate a contract with the Seminole Tribe and they filed suit for their failure to meet IGRA regulations allowed by the commerce clause. The Court ruled that Congress did not have the power to overrule Florida’s State sovereignty immunity protected by the Eleventh Amendment (maybe giving credence to the Ninth Amendment). This overruled the 1976 case between Fitzpatrick v. Blitzer when the Court held that State sovereignty immunity can be overruled via the Fourteenth Amendment. In Pennsylvania v. Union Gas the Court held that State sovereignty immunity can be overruled via the commerce clause. In the 1812 case between Schooner Exchange v. M’Faddon the Court held that a state has absolute and exclusive jurisdiction within its territory – State sovereignty immunity. From M’Faddon to Seminole Tribe it seems the Court has come full circle.

In the 2000 case between United States v. Locke the Court held certain state regulations for oil tankers and barges were preempted by federal law imposed by the Coast Guard using the Supremacy clause and commerce clause. In 2006 in United States v. Stewart the Court held that machine guns can be regulated under the commerce clause.

Gonzales v. Raich was decided in 2005 where the Court ruled that Congress has the power to regulate homegrown marijuana even if it is used for medical purposes. Thus the Court upheld the 1937 Marijuana Tax Act and the Controlled Substance Act. The Court cited Wickard v. Filburn where it was decided the government could regulate personal crops and cultivation. Scalia was wrong when he cited the necessary and proper clause for granting Congress this power. Raich changed the Court’s position over several recent cases trying to undo some of the vast limits created by the FDR administration for the commerce clause (Lopez and Morrison). In United States v. Lopez in 1995 the Court ruled that Congress could not regulate carrying an unloaded handgun in a school striking down the 1990 Gun-Free School Zones Act. The majority ruled that Lopez was a non-economic issue whereas most commerce clause cases are economic in nature; the gun had not been involved in interstate commerce; and finally there was no link between guns and education. Justice Breyer dissented and worried about the cumulative effect of thousands of students carrying handguns in schools (not really realistic and the guns are unloaded). He further argued that Congress has a “rational basis” for acting even if the commerce clause was not actually in play. The United States v. Morrison case of 2000 the Court decided parts of the federal Violence Against Women Act (VAWA) of 1994 were unconstitutional. Morrison was accused of rape but a Virginia grand jury refused to indict him because of a lack of evidence. The victim in the case then moved to sue Morrison under the VAWA. The Court correctly stated that there is a distinction between what is a local and what is a national crime or issue.

In the National Federation of Independent Business v. Sibelius in 2012 (ObamaCare), the Court threw a curveball. Although the Court held that the “mandate” to force Americans to buy insurance was unconstitutional and therefore, the commerce clause and necessary and proper clause were not applied properly in this law. However, Chief Justice Roberts provide Congress an out by carefully changing the wording in the “mandate” section to be a “non-coercive tax” making the law constitutional under Congress’s ability “to lay and collect taxes”. The Court also decided that the federal government could not withhold Medicaid funding if states decided not to implement ObamaCare – this was coercive and illegal. Roberts contended it was not the role of the Supreme Court to decide if a law is a good one or bad one, just whether it is legal or not.

The Evolution of the Commerce Clause (Part III)

The 1946 case between North American Company v. Securities and Exchange Commission the Court held that the Public Utility Holding Company Act (PUHCA) was constitutional citing the commerce clause. The North America Company trust contained over 80 communications companies in 17 states. PUHCA laws forced North America Company to divest its holdings into just one company in an effort to break up electricity trusts and monopolies. This was similar to how Teddy Roosevelt used the Sherman Anti-Trust Act to break up the beef trusts in the early 1900s.

The Boynton v. Virginia case in 1960 was a civil rights case over African-Americans being barred from a bus terminal. The Court ruled that the law violated the Interstate Commerce Act of 1887. The purpose of the Interstate Commerce Act was to prevent railroad monopolies as well as price discrimination against farmers. The Boynton case is a simple Fourteenth Amendment equal protection clause violation. It is difficult to rationalize why the Supreme Court decided this issue based on the commerce clause. In a similar case Atlanta Hotel v. United States the Court upheld the Civil Rights Act of 1964 via the commerce clause. In this case the Atlanta hotel refused to rent rooms to African-Americans and since it this affected the travels of people it violated the commerce clause. The Court conceded there were other and probably more effective ways for Congress to abolish racial discrimination – i.e. the equal protection clause – other than the commerce clause. Also, in 1964 the Court held in the case Katzenbach v. McClung that Congress could use the commerce clause to stop racial discrimination at restaurants. Title II of the 1964 Civil Rights Act granted African Americans full access to public facilities including hotels and restaurants. The Court cited one of the worst possible cases when defending this ruling: Wickard v. Filburn. Once again, why not use the equal protection clause for what it was intended to be used: to stop racial discrimination.

Edison Company v. Montana was decided in 1981 and the Court held a state severance tax on coal did not violate the interstate commerce clause. Taxes under the commerce clause were decided on the standards set in the 1977 case Auto Transit v. Brady: 1. a clear relationship between state and taxpayer, 2. Interstate and intrastate taxes do not discriminate against each other, 3. there is a fair apportionment within the tax jurisdiction and 4. There is a fair relationship of service provided by the state to apply a tax. Justice Blackmun dissented because of his concern over a few items: Montana controlled about 25% of coal production and most of Montana coal came from federal lands.

The 1985 case Garcia v. San Antonio Metropolitan Transit Authority held that Congress had the power via the commerce clause to extend the Fair Labor Standards Act (FLSA) to the States. The FLSA was passed in 1938 and requires that state governments pay employees a minimum wage and overtime. In 1968 the Court held in Maryland v. Wirtz that Congress had the authority via the commerce clause to regulate wages and overtime for hospital and school employees (obviously, this is intrastate and not interstate commerce – the expansion of the commerce clause continues under the Warren Court). Justice Blackmun wrote the majority opinion and said that Congress could use the Constitution’s supremacy clause to preempt any state laws that conflict with FLSA standards. In her dissent, Justice Sandra Day O’Connor expressed concern over how interstate commerce power of Congress can be used to control every economic aspect in society. Justice Powell dissented saying “The State’s role in our system of government is a matter of Constitutional law, not legislative grace”. In the 1995 case United States v. Lopez, Justice Rehnquist did not overturn Garcia but emphasized the need to regulate or set standards for interstate commerce. The Garcia ruling overturned the 1976 case National League v. Usery where the Court claimed the FLSA could NOT be applied to the states. In Lopez, Justice Rehnquist concluded economic decision such as wages, overtime pay, and compensation were best decided by the states. For instance, a national minimum wage does not consider the cost of living in all of the states. In some states with a high cost of living, the minimum wage may not be enough, but in states with a low cost of living, the minimum wage could be detrimental to businesses and employment (commerce). For these reasons, the Federal government and Court have no business deciding economic decisions for the states: One size does not fit all.

By the 1990s some of the power of Congressional coercion and the commerce clause began to dwindle. In the 1992 decision for New York v. United States the court held that the Low-Level Radioactive Waste Policy (LLRWP) of 1985 exceeded Congress’s power under the commerce clause. However, only one of three provisions of LLRWP was found unconstitutional. Justice O’Connor found that the provision in question of the LLRWP attempted to “commandeer” or coerce state governments to participate in the program.

The Evolution of the Commerce Clause (Part II)

In 1935 the case between Panama Refining Company v. Ryan the Court ruled that certain provisions of the National Industrial Recovery Act (NIRA) were unconstitutional. The Court found that the NIRA breached the use of the commerce clause because it provided the president with large amounts of unchecked power to dictate economic trade without any standards or criteria. The 1938 case involving the United States v. Carolene Products Company the Court began to set standards for applying the commerce clause (the Famous Footnote 4 case). While the Court used very low standards for economic issues, the Court applied higher standards for other laws affecting other areas of “commerce”. One standard was whether or not the law attempted to distort the political process and another standard was whether or not the law discriminates against a smaller minority groups (i.e. the power of majority groups over smaller groups). Carolene Products lost this case because their healthier products were falsely deemed unhealthier than other milk products. Hence, the dairy lobby won this case using false information and denied Carolene products the right to interstate commerce. The Supreme Court was making up rules (and using false data) to protect earlier New Deal decisions using substantive due process and the commerce clause. After all, siding with Carolene Products would set possible precedent to overrule FDR’s agenda. Carolene Products would be vindicated decades later.

The 1937 case Steward Machine Company v. Davis the Court upheld the unemployment compensation provision of the 1935 Social Security Act. In Steward, the Court showed it had a broad interpretation of Federal government powers over the states. Both the Social Security Act and the unemployment provision were coercive just as was every entitlement act to follow in American history. For instance, if states opted out of entitlement laws, then they would never recoup the Federal tax monies paid by its constituents. Justice Cardozo wrote “the petitioner confuses motive with coercion” since “The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another”. That may be true, but the federal government never takes advice from anyone, it only dictates terms. There is a fine line between motive and coercion and that is precisely why laws should be constructed carefully. The Court also ruled that the Social Security Act were necessary and proper to promote the general welfare of the nation to fight the Great Depression. In his dissent, Justice McReynolds wrote “I cannot find any authority in the Constitution for making the federal government the great almoner of public charity throughout the United States”. Justice Sutherland correctly predicted that “encroachments upon other functions, will follow”. He also added “Imposing a tax that could be avoided only by contributing to a state unemployment compensation fund was effectively coercing each state to make law creating such a fund.” Steward marked the beginning of New Deal programs that were found constitutional by using the spending clause to promote the general welfare of the nation. The precedent for this decision was set in the 1935 case United States v. Butler. Although the decision invalidated many provisions of FDR’s 1933 Agriculture Adjustment Act, for some reason the Court felt compelled to provide an expansive interpretation of the spending clause as it pertains to the promotion of the general welfare of the nation. In fact, the Court suggested that Congress had powers not enumerated in the Constitution when using the spending clause. Also in 1937 the Court upheld the National Labor Relations Act (NLRA) of 1935 in National Labor Relations Board v. Jones and Loughlin Steel Company. After the steel company fired 10 employees for trying to unionize, they filed suit under the NLRA. For the first time in the FDR era the Court used the commerce clause to uphold economic regulations. This case as well as West Coast Hotel v. Parrish turned the tide for the New Deal program. Justices were now approving everything FDR passed instead of finding his laws unconstitutional and an encroachment of power. By 1938, FDR passed a new Agriculture Adjustment Act (AAA) and the Court in Wickard v. Filburn decided that a farmer could not grow more than what was allotted by the AAA because it would violate the commerce clause. Filburn was using the excess crops he grew to feed his farm animals and family, yet the Court decided that even this act violated the interstate commerce clause. So, it was legal for the government (under the AAA) to dictate how many acres of crops a farmer could grow; how much tonnage of crops could be harvested for sale; and how much of the crops can be used to feed your family and farm animals. If this does not violate the Tenth Amendment, then nothing will ever violate the amendment. In a similar case to Steward, in South Dakota v. Dole the Court held that Congress could withhold federal highway money if states did not raise the drinking age to 21. Liberals call the South Dakota ruling incentive, but conservative call it what it rightly is: coercion. Many individuals have been convicted of blackmail using similar types of “incentive” requests in exchange for money. Steward was a big shift in the Court who just two years earlier invalidated FDR’s National Industrial Recovery Act (NIRA) of 1933 in Schechter Poultry Company v. United States. This was a unanimous decision where the Court ruled that NIRA and FDR could not use the commerce clause for wage fixing, maximum work hours, and the right for unions to organize. The Court found NIRA violated the Tenth Amendment. The Court quickly changed its mind on economic regulations with West Coast Hotel Company v. Parrish in 1935. After Parrish the commerce clause began to grow in size and scope such as in cases like National Labor Relations Board v. Jones and Laughlin Steel Corporation in 1937. By 1995, the Court finally tried to reign in the limits of the commerce clause in cases such as United States v. Lopez and in Bond v. United States in 2014. In summary, FDR legislation went from unconstitutional to constitutional using broad interpretations of the commerce clause and the spending clause along with some coercive politics.

Trump is Innocent

I do not like Trump. He is his own worst enemy. But the media will not even give him an opportunity to govern. I have been quiet about Trump because I wanted to see how this whole Russian collusion investigation played out. I did not think he was guilty and after the Jim Comey testimony, I am now convinced he is innocent and he should be given a fair opportunity to govern. Here are the reasons I believe Trump is innocent if everything Comey said was factual:

Comey admitted Trump was not under investigation or a target of an investigation. He also said that Trump told him to “nail” anyone in his circle that may have colluded with Russia. Comey also said that the General Flynn investigation was not complicit with the Russian collusion investigation. Thus, Trump in no way interfered in the Russia collusion investigation.

Trump “hoped” that Comey would find a way to be lenient on General Flynn. Trump never ordered (which he could do) Comey to stop the Flynn investigation. He only desired for Comey to be lenient on a “good guy”. Trump should not have done this but if Comey saw this as a directive to stop the Flynn investigation, he ignored a direct order. If Comey thought this was a crime or inappropriate he did not report it. And if Comey thought Trump was forcing him to do something he was uncomfortable with, then he should have resigned. For these reasons, I do not believe Comey really felt Trump’s “hope” was a direct order. It was a personal desire for Trump and a suggestion for Comey. Trump cleared the room because he realized what he was “suggesting” or “hoping” for may be frowned upon by others, so he wanted to make sure the conversation was private. But just because the conversation was done in private it does not logically follow that the meaning of the word “hope” changes. Liberals have a way of changing the meaning of words to fit their narrative and this is no different.

Attorney General Jeff Sessions and Representative Devin Nunes have recused themselves from the Russian and Flynn investigations. Robert Mueller was named Special Counsel to investigate these issues. If there was something to hide these things would not have happened. Why didn’t Loretta Lynch recuse herself in the Clinton case after meeting with her husband on a plane? Why was no special counsel ever created to investigate Fast and Furious, Benghazi, IRS targeting of conservative groups, DOJ targeting of the media, or Clinton’s email fiasco? Because Democrats had something to hide. Comey’s testimony points directly to how Loretta Lynch tried to influence the Clinton investigation. Why isn’t the Left upset with this type of Democratic collusion in an independent agency? Why isn’t the Left upset with the Democratic Party collusion to defeat Bernie Sanders? Collusion only matters if there is an “R” next to the person’s name. More importantly, the Trump administration did not try to stop the Comey testimony by using “executive privilege” as the Obama and Bush administrations used successfully to thwart investigations. If Trump had something to hide, they would have fought hard to stop Comey’s testimony.

Comey also testified that a vast majority of the information reported by the New York Times and Washington Post on the Russian Collusion ties to Trump were completely incorrect and thus, fake news.

All of the leaks were one sided: anti-Trump. Not one leak said the most important thing: Trump was not under investigation. When leaks are one sided and a vast majority of media reporting is proven false and leaks that would vindicate Trump are withheld, I am now skeptical of all reporting on this issue. It has also become alarming to learn that Comey is one of the leakers and for this he loses respectability and credibility because this violates FBI regulations even if the information is considered non-sensitive. Why would Comey do this? Comey’s opening statement proved he had an axe to grind and he wanted revenge on Trump. However, I do believe Comey’s testimony was for the most part the truth for fear there Trump taped the meeting.

So the million dollar question is why did Trump fire Comey? First, let’s face facts, Comey deserved to be fired. He botched the Clinton investigation (for many reasons I will not go into here) and then he botched the reopening of the Clinton case just days before the election. Trump fired Comey for what he said “over the Russian investigation”. Trump wanted to let the public know “he was not under investigation” to get his administration out from the Russian collusion dark cloud that has paralyzed his administration. Trump knew as long as the investigation went on it would be a liability to the administration unless the public understood some real facts instead of fake facts about the investigation. My guess is that Comey would not leak that Trump was not under investigation so Trump fired him and told the pubic what Comey told him “he is not under investigation”. Of course Comey had no issue leaking this information and more information once he was a private citizen with an axe to grind.

Comey’s testimony revealed crimes were committed but they were not by Trump: Comey’s leaking of information and Loretta Lynch’s manipulation of the Clinton investigation. Tim Kaine said of the Loretta Lynch criminal mishandling of the Clinton case “that is last year’s news”. We know the statute of limitations is more than a year for any crime but this is how Democrats think. Even Chris Matthews correctly points out that Comey’s testimony clears Trump of any Russian collusion hysteria. Yet, Comey’s testimony has done little to calm the Left’s insanity of wanting to impeach Trump.

Why doesn’t every one calm down and give Trump a chance to govern. If Trump is half as bad as the Left claims he will do a bad job and the Democrats can win back the White House. This fabrication of news is not making the media look good. And let’s not forget Trump got elected partly because the media did not treat him fairly. The media may just be giving Trump four more years because most people can see through the lies and deceit of the media anti-Trump frenzy.

The Evolution of the Commerce Clause (Part I)

The Commerce Clause of the Constitution has grown in size and scope to limit federalism and liberty to the individual states. If Federalism is denied to the states, then it follows liberty is denied to the people. The greatest aspect of America is different laws governing each state allows individuals the freedom to live in a state of their liking. If the federal government forces all states to have common laws, federalism and individual liberty are gone. The Commerce Clause refers to Article 1, Section 8, clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” From the early definition of “commerce” and from Madison’s writings in the Federalist Papers it is easy to determine that he had a narrow view of “commerce” to mean only “trade” between states, foreign nations, and Indian tribes. “Commerce” did not mean controlling production, manufacturing, or all economic parameters of businesses.

In Paul v. Virginia in 1869 the Court held that insurance policies were not protected under the commerce clause. However, Paul was overturned in the 1944 case between United States v. South-Eastern Underwriters Association. In this case, the Court held that the 1890 Sherman Anti-Trust Act applied to insurance companies citing the commerce clause. Congress passed the McCarran – Ferguson Act of 1945 in an attempt to limit the implications and impact of the South-Eastern Underwriters decision a year earlier. The United States v. E.C. Knight Company case in 1895 limited Congress’s power to control and regulate monopolies through the commerce clause and the Sherman Anti-Trust Act. In this case Congress tried to break up the Sugar Trust but the Court claimed “Refining was a local activity not subject to Congress regulation by the commerce clause” (as Madison asserted). Hence, action against manufacturing monopolies relied on state law until the 1930s and the FDR era.

In 1888 the Supreme Court decided in Kidd v. Pearson that there was a distinction between manufacturing and commerce (again as Madison asserted). The Court held that Iowa could prohibit the manufacturing of alcohol even if the product was going to be sold across state lines because it did not interfere with commerce. The Champions v. Ames case in 1903 upheld the Federal Lottery Act of 1895. This law prevented the buying and selling of lottery tickets across state lines via the interstate commerce clause. This ruling was important because it meant Congress could prohibit good from crossing state lines. In the Passenger Car Cases of 1899: Smith v. Turner and Norris v. Boston, the Court held that the commerce clause included regulation of people including immigrants when it struck down passenger taxes on ships.

The 1911 case between Southern Railway v. United States the Court held that Congress had the authority to apply the commerce clause to regulate intrastate safety on railways. In other words, Congress could demand intrastate trains be equipped with safety equipment to prevent injury and property damage on interstate trains.

In Hoke v. United States in 1911, the Court held Congress did not have the power to regulate prostitution using the commerce clause. Prostitution was clearly an issue up to the states to decide and explains the reason why prostitution is legal in Nevada and illegal just about everywhere else. However, in 1914 the case between Houston E. W.T. Company v. United States the Court ruled Congress could regulate intrastate commerce to control interstate commerce. The Court held that regulating railroad taxes within the state of Texas was needed so out of state railroad companies could also compete in Texas.

Hammer v. Dragonhart was decided in 1918 and the Court held that the regulation of child labor was not interstate commerce. Therefore, Congress does not have the power to regulate the manufacturing process and the products made by children outlawing the Keating – Owens Act of 1916. Justice Oliver Wendell Holmes in his dissent (Holmes is known as the great dissenter) said “the entire manufacturing process in the U.S. is under Congressional jurisdiction”. Holmes claimed that federal government prohibition laws prove that Congress can regulate any industry or product. However, prohibition was an Amendment to the Constitution. Hammer was overturned in 1941 in United States v. Darby Lumber Company. In Darby the Court upheld FDR’s Fair Labor and Standards Act (FLSA) of 1938 using the commerce clause to yield Congress the power to regulate economic conditions. This ruling limited the decision in Carter v. Carter Coal Company. This case was decided in 1936 and was over whether or not Congress had the power to regulate the coal industry. The Court ruled that “production and manufacturing” of products is not covered by the commerce clause which overruled the FDR administration’s Bituminous Coal Conservation Act which tried to control wages, overtime, and other economic factors in coal mining. Darby also upheld wage regulation for women in West Coast Hotel v. Parrish in 1935. In Darby, the Court held that the FLSA prevented States from using “substandard” practices to create an unfair economic advantage affecting commerce.

The Dormant Commerce Clause (Part II)

Hunt v. Washington State Apple Company (1977): The Court struck down a North Carolina law that only allowed apple containers to be marked with a grade assigned by the USDA unconstitutional. The law probably infringed on the liberties of apple producers selling its product in North Carolina.

Philadelphia v. New Jersey (1978): The Court held that one state could not discriminate against another state’s commerce in any way. New Jersey was forced to accept waste from other states or stop its landfill waste disposal process even if it means undermining the safety of its residents. Once again the Court ruled in favor of federal power over a states right to protect the health and safety of its citizens.

Exxon v. Maryland (1978): The Court upheld a Maryland law that prohibited oil producers from operating service stations within the state claiming it did not violate the commerce clause.

Kassel v. Consolidated Freighters Corporation (1981): The Court struck down an Iowa law wanting to restrict the length of tractor trailers from 65 to 55 feet over safety concerns. The Court said “protectionism legislation is unconstitutional under the commerce clause, even if the benefits are related to safety than economics”. This essentially reversed the Supreme Court’s precedent in South Carolina Highway Department v. Barnwell in 1938 where the Court allowed weight and width requirements by South Carolina on its roads over safety concerns.

Sporhase v. Nebraska (1982): The Court ruled that a Nebraska statute forbidding the commercial exploration for water violated the commerce clause. Once again, this law was in place over safety concerns.

South-Central Timber v. Wunnicke (1984): The Court invalidated an Alaska law requiring a timber companies from processing their products in state before shipping the goods out of state.

Maine v. Taylor (1986): The Court ruled that a state law prohibiting out of state bait was constitutional. This law was an exception to the safety concerns because Maine could not properly determine if the bait contained a parasite or some other disease that would create an environmental issue. Blackmun wrote that “legitimate local purposes could not adequately be served by available nondiscriminatory alternatives.”

Quill Corporation v. North Dakota (1992): The Court ruled a North Dakota “use tax” on an out of state retailer was unconstitutional since orders were placed directly. This ruling was used by Amazon.com to justify charging customers no state sale taxes on internet orders.

Oregon Waste System v. Department of Environmental Quality of Oregon (1994): The Court held that Oregon’s surcharge or tax on waste violated the commerce clause because it charged out of state businesses three times what it charged in state businesses.

West Lynn Creamery v. Healy (1994): The Court held that a Massachusetts tax on milk to help local dairy farmers was unconstitutional. Scalia agreed saying the negative commerce clause can be used if it discriminates against interstate commerce or if the case is indistinguishable from a Court precedent.

Hughes v. Alexandria Scrap Corporation (1996): This case created what is known as the “market participant” exception to the dormant commerce clause. As long as a state is an active market participant and not just a market regulator then states could create laws favoring its citizens over out of state citizens.

Granholm v. Heald (2005): The Court ruled that laws in both New York and Michigan that permitted in state wineries shipping directly to customers but denied the same right to out of state wineries as unconstitutional.

United Haulers v. Solid Waste Management Authority (2007): The Court upheld a New York law that forced private waste management companies to deliver waste to a public facility did not violate the commerce clause. Scalia wrote “negative commerce clause is unjustified judicial invention” and Clarence Thomas wrote the dormant commerce clause “proved to be unworkable in practice”. Both Scalia and Thomas obviously changed from their earlier views on the dormant or negative commerce clause.

Kentucky v. Davis (2008): The Court upheld a Kentucky law which provides tax breaks to residents who buy state bonds claiming it does not violate the commerce clause.

The Supreme Court has allowed the commerce clause to be used to justify federal laws regulating industry over safety concerns. Yet, the Supreme Court has used the dormant commerce clause to strike down state laws regulating industry over safety concerns.