A “Constitutional Crisis ?!?”

Here at D-J, we’re not want to hear clients echoing sound bites from media sources. Who wouldn’t want to sound erudite, smart, and well informed ? Unfortunately in most cases this is a sort of reverse-parrot; as if people had a parrot constantly squawking phrases and the human–not the parrot–began to squawk what the parrot told him in public as well. Of course, being a customer service entity we need approach the issue delicately but when this happens we do like to point out the great danger of propaganda and of how it can subtly work its way into our brain. People occasionally spout ‘gun violence’ (an absolute propaganda term), ‘woman of color’ (rather than ‘colored woman’), ‘African American’ (even though the particular person has never been to Africa nor has any direct ancestors who has), ‘reasonable restrictions,’ ‘common sense (blah blah blah)’, ‘middle class (blah blah blah)’ (there IS no ‘middle class) ‘decarbonization/net zero/sustainability’ (based on the carbon ‘climate change’ scam), ‘stakeholder,’ and a thousand other propaganda based terms. As our staff has pointed out before this is simply psychological conditioning designed through repeated propaganda by a synchronized media to drive a stake into someone’s brain such that communistic policies might become more palatable; control the language and control the population. People are afraid to use divergent speech (well protected by our 1A) in a paranoid fear they might ‘offend’ someone. Not realizing they’ve been manipulated.

Here at D-J, we believe ALL are equal and ALL have the right to speak plainly. We also realize that manners do matter, and no one likes humans who are pigly in conduct; every human being deserves to be treated with dignity and respect. HOWEVER, we also don’t much worry about offending anyone or walk on eggshells; while we do avoid the profanity and F-bombs the left seems to love in their ‘outrage’; (realizing it shows ignorance on the part of the sender in not knowing when and how to use strong or profane language–thinking that “F…” can somehow make a point the rest of his language or position cannot), we do realize that offense comes from the potentially shifting emotional point of view of the RECEIVER. It’s impossible for any reasonable person to adjust to the continuously shifting viewpoints of someone who loves to be offended; other than normal manners we don’t worry much about it. And for us we jealously guard WHO we allow to ‘offend’ us — usually reserving that power to bona-fide friends and loved ones. People we know and respect. For when they do so it means they’re upset–perhaps at something we’ve actually done–and might need to investigate further in order to see if an amends is appropriate.

Some of our clients have come to us concerned over a potential “Constitutional Crisis.” After calming them down–and pointing out the propaganda of the term–we point out that our US has had “Constitutional Crises” since it was founded–all of which might potentially be more serious than what the media now parrots; just because you’ve got alot of parrots doesn’t mean the parrots are right (and usually they’re not). And the US will be just fine.

Activist judges and justices have been a problem–and hurt America–since she was founded. The concept of 3 independent branches of government within our Constitution is (hopefully) well known. Congress writes the laws, the Executive executes them, and the judicial reviews them and judges the situation on the merit of the case IAW the Constitution (which overrides all lesser laws) and written law. Marbury v. Madison established the precedent of judicial review. In a nutshell, in a fierce rivalry between Aaron Burr (a general obnoxious dick–but a good shot), incumbent John Adams, and incoming President Thomas Jefferson, Adams did everything in his power to imbed ‘deep state’ (and anti-Jefferson) candidates into every political office he could think of (including judges). The pro-Adams senate quickly confirmed them (and coined the term ‘Midnight Judges.’).

Shortly thereafter, Thomas Jefferson became President. One of his first official acts was to suspend ALL undelivered commissions for public office that had been sent out by Adams (and confirmed by the Senate). One of these undelivered commissions was to William Marbury–a strong supporter of Adams and the losing Federalist Party. Jefferson had directed his new Secretary of State–James Madison–not to deliver the remaining commissions. Marbury would later sue–based on section 13 of the Judiciary Act of 1789.

The Chief Justice of the (then) Supreme Court presiding would be John Marshall; former Secretary of State under rival (and outgoing President) Adams and confirmed into the Supreme Court immediately before Thomas Jefferson was inaugurated as President.

So, if you think we have drama today, look a little bit at THAT history. It amounts to Biden (or whatever cabal was running the executive at that point) doing a whole bunch of last minute commissioning of judges and last minute civil workers–gets them rammed through a democratic senate (that didn’t exist during Biden’s term but did exist during Adams’), and then Trump takes over–with a bunch of undelivered commissions including judges.

There was an obvious conflict of interest in Marshall as a SCOTUS judge presiding over the case to begin with (a newly minted ‘Midnight Judge’ from the previous administration). And Marshall realized this. Yet chose not to recuse himself from the case. Notably, this case went immediately to the SUPREME court and not to a lower court. The wisdom of the time was that jurisdictional questions between a President (chief executive of the executive branch) and an independent branch of the Federal Government could ONLY be adjudicated in an equal branch of government–that being the Supreme Court. Lesser branches–including appointed federal judges–were wholly incapable (under our US constitution) of adjudication of a Constitutional issue between the Constitutionally Designated Chief Executive (President) and Legislature (Congress).

Marshall found himself in a dilemma — a bona-fide “Constitutional Crisis.” If he ruled against Jefferson, Jefferson could simply ignore the ruling; the court had (and to this day has) no power to enforce the ruling under the terms of our Constitution (the only real recourse under our Constitution being impeachment and removal from office–a very high bar to attain–but deliberately set under our Constitution. The thought being that the Federal Government was to wield little real power–the majority of it being within the states and the state legislatures–and if the conduct of the President was so egregious that Congress could handle it) . If he flatly ruled against Marbury without explanation, then the court would also lose the ability to challenge the executive authority in any way.

Thus, Marshall had to walk a tightrope; without excessively pissing-off Jefferson (who might simply ignore the court) he needed to assert the court had SOME authority of judicial review. Marshall adroitly solved this as a master at law; devoid of sound bites or agenda. Realizing what was at stake he did a sort of honorable “Roberts Punt” (not that we think John Roberts is an honorable judge or should be on the SCOTUS–but his propensity for punting is as close as we can get in rememberable history for an analogy). He (with the courts concurrence) declared the law passed by Congress (Judiciary Act of 1789) as unconstitutional (which it was violating article 3)–which established the precedent of judicial review (essentially legitimizing the Supreme Court). While they believed Jefferson’s acts via his agent were illegal, given the conflict between the illegal law and Jefferson acting illegally it was a push. And Marbury lost the case. The concept of judicial review of unconstitutional law (and potential executive action) stuck; the resolution between authority of the judiciary vs. executive (devoid of impeachment and removal) was never resolved. Nixon came close but Nixon caved.

There always has been–and always will be (and always should be for that matter)–a tenacious relationship between all branches of our Federal government. The founder’s intent was that our Federal government be small; acting more as a coordination facility between the states and providing for a common defense. It’s morphed beyond that–likely due to ‘logic bombs’ placed in our constitution via the 16th and particularly 17th Amendments–with the majority of authority held by local governments and state legislatures. Realizing that concentration of power–anywhere–was a bad idea.

For years, the courts (district and Supreme) have been trying to garner more power (Mark Levin’s excellent book ‘Men in Black is a good treatise on this). No man can stay an angel when he believes he’s vested with power. And as Appellate judge Lester said (to one of our founders) “there’s nothing worse than a bad judge.” Today–in the fallacy that ‘more court and more rules makes you safe’ they’ve made an attempt to garner more power than our constitution ever authorized them to have.

Interestingly enough, courts have been remiss in granting our citizens legitimate liberty according to our Constitution. “Shall not be infringed” remains infringed by numerous violations of our constitution in the forms of background checks, paperwork, and unconstitutional searches–all prohibited by the 2A and 4A. And warrantless searches at airports and elsewhere; we’d love to see a ‘Marbury v. Madison’ looking at the ‘Patriot” act and other law suppressing liberty of those in our nation (COVID notwithstanding; if you want a glimpse into 1984 and the worst of the worst in liberty suppression you need look no further than the horrid transgressions during COVID–like the internment of Japanese in camps it’s one of those ‘never forget’ moments).

There are essentially three safeguards possible to prevent unchecked (Federal) executive action. NONE of these involves the judiciary; indeed it is within the combined authority of the executive and congress to abolish ANY authority of the federal judiciary ! :

1. The House can impeach; the Senate can remove from office (this is a very high bar). The will of the people is a part of this in that those in the House and Senate would theoretically represent them in any impeachment or removal proceeding.
2. The entities within the executive (who are all sworn to our Constitution; military or otherwise) can refuse to execute a directive which they believe directly conflicts with our constitution (a Federal Gun Grab might be an example of this; it’s unconstitutional and lower order executors would be justified in refusing the order. This takes some guts).
3. The people and executive entities within the states themselves refuse to execute an unconstitutional order–and actively oppose it (to include armed force if the unconstitutional order is extreme enough). The former is one of the basis for our own second amendment; that if it came to conflict the citizens of the state would be at least as well armed as potential entities acting against our Constitution (and it’s impossible to have any political representative or entity who faithfully executes his or her duties who is also in favor of gun control–this is de-facto unconstitutional).

To date, the ONLY reason any President has been bound by any judicial decision is HIS belief of the legitimacy of the court. And perhaps public opinion/following the ‘will of the people.’ There IS no direct constitutional provision or established precedent requiring a President to be bound by the court. Period.

There are currently 1770 federal judgeships across our United States. While some of those are federal magistrates, appellate court judges, and Supreme Court justices there are 677 (!) federal court judges in our nation alone.

This exceeds the total legislative body of our federal government–House and Senate combined. Obviously the framers never foresaw anything like this, or that any ONE of those federal court judges could act as a ‘one man band’ with an equivalent weight to that of the executive. To do so would seriously compromise the operation of our Constitution; district court judges don’t have an equivalent level of authority of EITHER the SCOTUS or executive. The Supreme Court itself was a bit of a ‘bastard child’ which was subservient to both Executive and Legislative Branches–but a sort of constitutional check on either. In fact, most ALL of the early decisions occurring between Legislative or Executive branches were fast-tracked to the Supreme Court which was the ONLY constitutionally equivalent branch to that of the chief executive himself. As a side note, it’s doubtful that the framers might have seen a Federal Behemoth akin to what we have today; designing our constitution such that MOST of the power would be in the state legislatures and at the local level (with the Federal Government in the role of coordinator and providing for a common defense; the provisions OF the bill of rights weren’t directly translated to the states until incorporation which happened post 14th Amendment). As such it’s unclear what their thoughts might have been on lower court minions exercising sway over lower order functions of bureaucratic entities (perhaps like the FBI or ATF–although we think the founders would have found the concept of either repugnant).

We’ve frequently discussed a couple of the previously mentioned ‘logic bombs’ placed into our Constitution by so-called “progressives.” Namely the 16th Amendment (allowing the Feds to tax income providing limitless confiscation of money from citizens), the 17th Amendment (changing how Senators were appointed–moving the authority away from state legislatures and towards that of popular vote by state. This would shift the authority from the state legislatures towards the federal government by allowing the people to essentially ‘bypass’ state legislatures as well as be manipulated by resources flowing in from OTHER states to leverage states against each other. The senate is designed to BLOCK bad legislation. And the shift from state legislatures directly sending electors to elect a President (who has a disproportionate share of authority) to a sort of popular vote by state to elect the President. The original Electoral College–designed to prevent large cities or states from effectively seizing the nation–relied on Federalism–states to compete with the federal government for power–to keep power in check. When the state legislatures were neutered, it allowed for the huge behemoth we now have to begin growing. And grow it did.

None of the founders intended a lower order court minion to be able to block the executive; that authority would have resided in the Supreme Court and from the Marshall decision was tenacious enough to begin with (risking the loss of the court’s validity if the executive simply ignored a court decision). But within the last 50 years or so courts began to take a more active role; in Kagan’s famous whisper ‘We do.’ when it comes from legislating from the bench.

Roe v. Wade was ‘made up’ ‘law.’ When it comes to abortion, the Constitution is wholly silent. Now, states have the power to regulate it and congress could certainly pass a law–for or against–to allow for the spectrum of unrestricted through a complete ban. The issue is propagandized into “Reproductive Rights” or “My Body My Choice” (with most of the supporters of the latter not surprisingly being the first on the bandwagon to force masks onto kids during Covid and force needles of an experimental vax into peoples’ arms–effectively negating any potential argument). Either of these positions ignores the potential rights of the unborn as well as paternal rights and the ultimate question of law addressed by potential legislation is when DOES constitutional protection for the rights of the unborn kick in. With positions ranging from conception right up to the point of delivery. What Roe did was pervert the 14th amendment in an attempt of the court to litigate abortion; it was always an absurd ruling and deservedly was struck down later. We at D-J are not advocating a position one way or another; we ARE saying the constitution is wholly silent on the issue and if one wants a law for or against or anywhere in between to take it up with the legislature.

With Roe and follow on lower court/SCOTUS actions, judicial activism became more active. Certainly the SCOTUS HAD made very bad rulings in the past; notably the Dred Scott decision which effectively declared slaves as property (requiring Dred to be returned to his masters even though he’d reached free ground). The decision was largely driven by the waffling court (much like our present day Roberts court where Roberts doesn’t want to stick his neck out and is a kind of agenda-driven judge Kennedy) wanting to placate people to reduce division (it did the opposite), as well as being uncomfortable with Negroes owning arms (which continues in democrat run cities and states to this present day with their attempts at gun control). Most gun control has its roots deep in racism and fear.

Dred caused a latent constitutional crisis which never materialized; Lincoln was on record saying he’d ignore it. Shortly after Lincoln was elected the Southern states seceded making the ruling moot. Lincoln later WOULD make the point when he issued his emancipation proclamation–which accomplished absolutely nothing legally–but would proclaim that the slaves in the states in secession (which had formed their own government and at that point country) were free (Lincoln keenly excluded the border states (DE, MD, KY, and MO) so as not to force them into the confederacy). Later, with congress he’d have the 13th Amendment passed which actually DID abolish slavery.

Since Roe, we’ve faced an increasing rate of judicial corruption; rather than judges and justices interpreting the law, they often morph the law into what they wish it was. This is usually accomplished by some activist group (often funded by global constructionists like Soros, et. al as well as the now defunct deep state USAID) doing some ‘judge shopping’ and bringing forth a lawsuit in front of a judge that might agree with their agenda; law be damned. And then the judge would rationalize a way to push his agenda by using snippets of law text cobbled together to support his position. This is a very dangerous thing for a judge to do–mostly because in time it will run HIS credibility into the ground.

Immigration control is an executive function. While naturalized citizens and permanent resident aliens have constitutional protections, illegal aliens do not (when it comes to deportation). A sham ‘asylum seeker’ doesn’t matter; we’d ALL do this if we were illegally immigrating to try to get to stay. REAl ‘asylum seekers’ are usually solicited or welcomed with direct executive intervention (as might be the case with a Russian defector brining a sub or aircraft to the US, or an Iraqi General giving information about Saddam Hussein and the Iraqi war machine when he was in power). At least in a sham marriage to get a green card, the person is actually married and gets the legal protections that kick in by being married to a US citizen.

“Undesirable” illegals–those who have committed crimes–have been legally and summarily deported by the executive since Hoover was a pup. Even Anna Sage–a Romanian hooker and brothel owner in Chicago–was summarily deported despite promises of asylum after turning in Dillinger. The thought that an illegal gang member with a long rap sheet of committing crimes can’t be summarily deported is absurd. And it’s absurd to the overwhelming majority of Americans. From a legal, moral, practical, and ethical perspective.

Enter James Boasberg. Appointed by Barack Obama, he has the record of being an activist, anti-gun ‘environmentalist.’ His wife founded an abortion clinic (receiving indirect grants from USAID as well as contributions from a Soros-related NGO through a feeder fund), and his daughter works for an pro-illegal immigration NGO which receives (or more appropriately received — score !) funding from USAID and other government grants and defends criminal illegal aliens (including TDA and MS-13 members). His wife has contributed large sums of money to Democrat activist groups. One would think someone is this personal situation would recuse himself. But the deep state runs deep (which is one of the reasons there’s so much resistance to DOGE finding out the corruption that WE taxpayers are funding). Moreover, Boasberg ruled against DC residents’ ability to keep and carry firearms (a basic second amendment right) to protect themselves AGAINST these illegal ailen terrorists.

So guess what happens…. He issues an immediate injunction at the whim of a special interest group attempting to halt deportation of illegal gang members. Fortunately, Trump had already deported them, and then Boasberg attempted to engage and escalate a diatribe with the Trump administration to ‘assert his authorataaay.’ Like the American people somehow WANT dangerous illegal immigrant gangs in our nation.

With the constitution, the law, and public opinion against him, Boasberg quickly found himself marginalized. At this point he’s a bellowing buffoon whose credibility has plummeted. And will be totally ineffectual in his original crusade. He deliberately chose to compromise his position and we at D-J have little sympathy for him. We ARE concerned though on the precedent this sets.

He’s not alone; other district court activist judges are stepping up to block agenda items all approved by American voters in the last election. Ones which are legal, constitutional, and reasonable. And when the public hears of it, it defies logic. Those who would destroy our constitutional republic–groups well funded by those wishing to undermine our strength and constitutional republic– are lining up left and right, shopping for activist judges, and attempting to use them to legislate from the bench. It ranges from criminal illegal aliens through needed budget cuts through the carbon scam (CO2 was NEVER to be regulated by the ‘Clean Air Act’ in that it is NOT a pollutant).

We see great danger in this. Marshall had the good sense and mind to realize that he could force a ‘constitutional crisis’ if he got into a pissing contest with Jefferson. And he was a Supreme Court justice. America is tired of activist judges fueled with money from special interest groups acting against we the people. As such, there is a huge public opinion backlash against these would-be kinglets–and rightly so. Trump will not be removed from office so he essentially can do as he pleases with these corrupt minions.

But again we see great danger in this. When a judge acts illegally or irresponsibly (or is driven by some self-serving motive to legislate from the bench; possibly enabled by special interest groups), he or she risks losing authority. While the nation backs Trump in deporting dangerous illegals, and fully supports DOGE in cutting back the Federal Behemoth, the will of the people is important but fickle and CAN transcend the boundary of the Constitution and law. If Trump were a client, we’d advise him to ignore lower court rulings but pay attention to the SCOTUS. Ultimately he COULD ignore even the SCOTUS. And while the nation and Trump agree at this point, a despot later COULD be in the position as President where he uses as precedent a former President’s ignoring of the SCOTUS. And there goes away any say courts might have; relying on the safety valves of impeachment/removal (a high bar to achieve) or direct action by the states or agents sworn to our constitution to ignore an illegal order. None of these is particularly desirable.

Being a judge demands judgment. It creates a dilemma when we have judges without conscience or judgment–and a whole smattering OF them. They might THINK they can act as little kings without realizing they’re one judgment from losing the entire kingdom. The concept of judicial review is important — however, it must be tempered with judgment as to understand the constitutional situation in which it operates. Activist judges ignore this and do indeed create a “Constitution Crisis” where they imperil our entire system of checks and balances. We’d only wish they think before they rule. There’s nothing worse than a bad judge indeed !