Nullification by campaign statement

blindfolded-2025474_640President Trump’s revised travel ban is before the courts again.

Once more, the main argument against it seems to be that Trump showed an opposition to Muslim immigrants and visitors during the campaign.  Therefore, although president usually have authority in such matters, because of his campaign statements his executive order is invalid.

This makes no sense at all.  How can an action be illegal just because a candidate campaigned on it?   That would prevent politicians from fulfilling their campaign promises and would make representative democracy pretty much impossible.  The argument is that Trump’s campaign statements show that the order is biased against Muslims, but a law has to stand or fall on what it says in its own terms, not in the motivations of the person who proposed it.  My understanding is that this revised order specifically precludes discrimination against Muslims, as such.

Or have liberals been persuaded by conservative legal theorists and adopted an extreme version of “originalism,” whereby the lawmakers’ original intention determines the meaning of a law?  If so, we should expect liberals to stop invoking “the living constitution” and to start agreeing with conservatives on what the constitution means.

In the hearing before the Fourth Circuit Court of Appeals in Virginia, the judge pressed the ACLU attorney on his advocacy of nullification by campaign statement.  The attorney lurched towards an even more extreme version of relativism.  He said, in effect, that if Hillary Clinton had issued the travel restrictions, they could be constitutional.  But since Donald Trump ordered them, they are not constitutional. [Read more…]

Trump signs religious liberty order

30279870283_985b3bfa2f_zPresident Trump issued an executive order on religious liberty.  It allows churches and other religious and charitable organizations to carry out political action without worrying about losing their tax-exempt status.  It also exempts religious groups from having to fund contraceptives under Obamacare.

But it does not provide what many religious groups were hoping for and what many secular groups feared:  There is no exemption from anti-discrimination laws for those who object to LGBT issues on moral or religious grounds.

The executive order does not change the law.  It just directs the IRS and the health care system to exercise “maximum enforcement discretion” in levying penalties.

A bill has been introduced in Congress to repeal the Johnson Amendment, which restricts tax-exempt non-profits, including churches, from endorsing candidates and carrying out overt political activity.

Some fear that eliminating the restriction could further politicize religion and turn churches into “dark money shops” for political candidates.  And this religious liberty advocate says the order is “worse than useless.”

Is this the kind of religious liberty protection that is needed today?

 

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Congress gets busy on the budget & Obamacare

640px-United_States_Capitol_-_west_frontCongress has passed a spending deal that will keep the government from shutting down.  The measure provides for increases in defense and border security.  A bipartisan committee worked out the compromise that will keep the government funded at least through September.

Also, there is a chance that Congress will act on healthcare as early as this week. The White House is claiming to have the votes to repeal and replace Obamacare this week, though Congressional Republicans are more cautious about those prospects.  See this for the current state of the healthcare bill. [Read more…]

Trump can’t withhold all money from sanctuary cities

512px-US_Sanctuary_Cities_Map.svgA court ruled that President Trump may not withhold all federal funds from “sanctuary cities” that do not enforce U.S. immigration laws.

The ruling said that the President may withhold some funds, as already specified in the law.  That will amount to hundreds of millions of dollars, a not insignificant punishment.  But only Congress has the power of the purse, so as to have the authority to withhold money from generally applicable and non-related programs such as Medicare, education grants, etc.

Once again, President Trump is checked and balanced.  The courts, Congress, the states keep thwarting his signature issues.  Do you think this is an example of the genius of our Constitutional system or anti-Trump obstructionism?  If this represents a roll-back of the power of the presidency, which has arguably seized too much power over the last decades, do we have a Congress that can fill the void, or does it lack the leadership to fulfill its Constitutional role?  [Read more…]

A blow-by-blow account of the Trinity Lutheran arguments

512px-USSupremeCourtWestFacadeThe London Economist, of all sources, has published a description of the arguments in the Supreme Court in the case of Trinity Lutheran Church vs. Pauley (and the State of Missouri).

The report said that the argument seemed to go in the church’s favor, with even liberal justices expressing skepticism about the state of Missouri’s reasoning in refusing to allow the church to participate in a grant for shredded tires to use for  playground padding for its preschool.

The justices asked the state’s attorney if providing a church police and fire protection would also violate its church-state separation law.  The attorney reportedly couldn’t come up with a good answer.

The new guy on the court, Justice Gorsuch, also seemed sympathetic to the LCMS institution.

Read the description of the arguments after the jump.

Photo of Supreme Court building by UpstateNYer (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

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Criminalizing pro-lifers

brutality-152819_640In France, it is illegal to attempt to disuade anyone from getting an abortion.  It is also illegal to demonstrate against abortion, to give information about alternatives to abortion, and to espouse the belief that abortion is immoral.  Pro-life expressions could result in a fine of 30,000 euros and two years in jail.

So says Denise Burke, who makes the point that those who once claimed to be “pro-choice” are now “pro-coercion” in seeking to silence and criminalize advocates for life. [Read more…]