Now that Brett Kavanaugh has been confirmed and installed on the Supreme Court, the GOP has wrongfully assumed that the protests will end, and things will – as Mitch McConnell said – blow over. Mitch, (or – as he is known ‘lovingly’ by protesters as ‘Yertle the turtle-head’), couldn’t be more wrong. The protesters participating in the #Occupythe100 demonstrations, are all too aware of the dangers a far-right SCOTUS poses.
Protesters in St. Louis…shadows of Ferguson
In my home town of St. Louis, a diverse group of women camped outside of Republican Senator Roy Blunt’s office – since his staff refused to admit any representatives from the protest into the building. Blunt’s people also refused telephone calls as well. So, on a hot, humid, Autumn day, a group of women took their grievances against Kavanaugh – and Trump–to the senator’s home office. They camped out for days with a makeshift tent and food from a variety of donors. They stood unafraid as the body-armor clad police attempted to ‘kettle’ them to a single block radius. When the plan failed – the police brought in a large tactical vehicle complete with military insignia. Homeland Security was present, and all the officers had zip-ties and handcuffs ready.
The protesters were not alone as they had male allies present – not to ‘mansplain’ – or control the dialogue, but to support us with their very presence. In St. Louis, especially since Ferguson – police have, in the past, taken pleasure in pounding on small women, skinny teenagers and the elderly.
The police were not so bold when a group of large men appeared. These men were our allies, but they knew this was our fight. The protesters also knew that this #Occupythe100 campaign – wasn’t an ending – but a beginning. Three of the protesters chained themselves to the front revolving doors of the glass and stone skyscraper – waiting to be arrested. One of them chained his neck to the door, which the police tightened to the point of near suffocation for a few moments – before they cut the chains.
Many of us tried to obtain video footage of this officially sanctioned strangulation, but the police physically blocked our cameras—hands on their guns at all times. It was punishment for daring to challenge the dominant narrative—that of white, Christian male privilege. Most of the women were rape survivors and they shared their stories in the middle of the hot, summer night. Dr. Kristine Blasey-Ford’s name was on everyone’s lips—as a battle cry in a lawless wilderness. After the confirmation was finalized, a group of a dozen protesters locked arms in the middle of the intersection and conducted a ‘die-in’ by laying down in the street, refusing to move until police forced them into custody.
According to multiple protesters, this confirmation fight over Brett Kavanaugh – and the subsequent protests – were merely the symptom – of a much more toxic disease – namely the demise of democratic rule itself. The protesters realized that this coup by the GOP of Trump, is a rape of a different type. The very concept we know as ‘rule of law’ is being assaulted – with Kavanaugh enthusiastically pumping the kegger and – Trump leading the impotent catcalls.
Kavanaugh – frat-boy extraordinaire provides legal cover for crimes against democracy
There was never any doubt that Kavanaugh would be confirmed since the GOP always had the votes locked up. The ‘dog and pony show’ that is Senator Susan Collins, served as a necessary distraction, while White House Legal Counsel double checked the theories needed to grant a ‘get out of jail free’ card, to not only Trump – but eventually, to any politically appointed cabinet heads. Susan Collins teased the protesters with a faint promise of decency as she bought time for White House attorneys.
This entire escapade was part of a GOP scheme to codify an entire class of politicians as – above the law – and it was likely heralded by The Federalist Society under the helm of D.C. beltway insider – Leonard Leo. The plan involves the following components: a judicial pronouncement declaring the POTUS and (eventually) all cabinet officers to be immune from prosecution while in office, the adaptation of a precept known as the nondelegation doctrine which would, in time, invalidate any federal regulations not specifically stated in the actual legislation, and the theory of original intent itself. Together, these components form an unholy triad of powers that would satisfy any dictator.
Kavanaugh’s theories on unlimited POTUS power
By now, Brett Kavanaugh’s paper on the need for presidential immunity from criminal prosecution is well known, but the White House Counsel under Trump has been looking to carve even more exceptions. Kavanaugh wrote in the Minnesota Law Review, a lengthy and flawed justification for presidential immunity from civil and criminal prosecution while in office. Below is the principle Kavanaugh would evoke that theoretically mandates any president to be – above the law.
”I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY
DEFERRAL OF CIVIL SUITS AND OF CRIMINAL
PROSECUTIONS AND INVESTIGATIONS “
In his long-winded discourse explaining this stance, Kavanaugh provides technical ‘legal’ cover for his argument, while conveniently avoiding the giant ‘white elephant’ in the room – namely the very idea of elevating any president to the level of an unaccountable – though allegedly ‘temporary’ – monarch. The usual talking points were given using ethically challenged legal jargon – namely – national security, emergency situations, and overall executive efficiency. Ironically, attorneys and judges affiliated with the Democratic party have also agreed on these same terms – as Kavanaugh discusses in this infamous opinion. What these legal eagles seem to conveniently forget is one simple – ‘inconvenient truth’ – that the presidency was never meant to be an elected monarch. The very idea of such an arrangement is a foul insult and cruel joke on the very notion of ‘Rule of Law.’
Kavanaugh explained his rationale by stating that “I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” Apparently, honoring ‘Rule of Law’ is compartmentalized in Kavanaugh’s world as an unnecessary ‘distraction’ that the rest of us mere mortals dare not question. He’s saying that because the president’s job is ‘really hard’, the president should be exempt from both investigation and prosecution of any civil or criminal infractions – while in office. The elitist snobbery and disdain for the law that Kavanaugh presupposed in this feeble excuse for lawlessness – is legion. The utter hypocrisy of his stance only rivaled the disrespect for equal rights under the law that Kavanaugh demonstrated during his contentious confirmation hearings. Keep in mind that Brett Kavanaugh worked for Kenneth Starr to – criminally prosecute a sitting president of the opposition party – namely Bill Clinton. And what was the crime Clinton committed deemed so egregious that it would violate the very theory of presidential immunity from criminal prosecution; the very principle Kavanaugh now heralds as some form of de facto jurisprudent ‘holy grail’? Bill Clinton lied to the special prosecutor about a consensual sexual affair. To the underwhelmed – be reminded that – Kavanaugh was one of the GOP attack dogs working for Kenneth Starr on that case.
Make no mistake, the idea of presidential immunity from criminal prosecution has been a GOP wet dream for many decades, and probably found its infancy during the criminal administration of Richard Nixon. It was then advanced by Vice President Dick Cheney, under the moniker of the ‘unitary executive.’
Such a goal represents the very antithesis of ‘rule of law,’ and though Kavanaugh referred to such privilege as a temporary ‘deferral’, while in office; it is but a ‘slippery slope’ from such temporary ‘deferral’, to full and permanent exemption – provided by sympathetic GOP judges. Keep in mind that Kavanaugh’s opinion on this matter was written in the Minnesota Law Review in 2009, during the Obama presidency. I sincerely doubt that Kavanaugh would have made the case for ‘deferral’ as opposed to ‘permanent exemption and full pardon’, if Trump had been in office at the time. Kavanaugh has proven himself to be a rabid partisan on the far right – open in his callous disdain for popular democratic rule.
Gamble v. U.S.: Double jeopardy and guaranteed presidential pardon for Trump
Kavanaugh’s view on presidential immunity from prosecution would be very convenient for Trump, as the case of Gamble v. US is heard by the SCOTUS. This is likely to be one of the first cases Kavanaugh will help decide. It asks the question; does it violate the double jeopardy clause of the 5th amendment if a defendant faces prosecution in both federal and state courts for the same charge?
This speaks to Trump’s claim that he can pardon himself for – anything—as he tweeted on June 14, 2018, “I have the absolute right to PARDON myself.” What Trump forgot was the limitations placed on the pardon power. Article II, Section 2, limits presidential pardons to federal crimes.
A SCOTUS judge deciding that presidential immunity from criminal prosecution is a necessary right would change the legal landscape unalterably, and subsequently tilt the balance of power towards the executive. As it stands now, a sitting president can issue a pardon solely for federal crimes. Charges issued by an individual state are not pardonable.
Kavanaugh’s presence on the court could change that limitation and strike down state level charges as constituting ‘double jeopardy.’ Since Trump has declared that he would pardon himself as well as any underlings; such a ruling would grant the president and his acolytes the ‘get out of jail free’ card, they so desperately crave.
The nondelegation doctrine – and the destruction of ‘pesky’ federal regulations on big business…and on DOJ
Though Brett Kavanaugh has been the center of attention lately, his recent predecessor, Neil Gorsuch bears much responsibility on this other segment of the Gordian Knot the GOP is constructing. Gorsuch was Trump’s earlier SCOTUS justice, and his selection was not an accident. Gorsuch is the water-boy for the second weapon against any regulations not blessed by the GOP or the Federalist Society – and that weapon is the resurrected ‘Nondelegation Doctrine.’
Gundy v. United States and the end of regulatory agencies like EPA…and DOJ
The Gundy case will be litigated this season – with both Gorsuch and Kavanaugh leading the far right on the court. At first blush, the Gundy case seems unimportant, but the ramifications of this case are far-reaching. The nondelegation doctrine was last used to strike down New Deal reforms.
On the surface the Gundy case is about the registration requirements for convicted sex offenders within the Sex Offender Registration and Notification Act or SORNA. The Gundy case is problematic because Congress provided scant guidance to the supervising agency regarding any specific regulations applicable to SORNA. Due to that oversight; the Gundy case appears to have violated the earlier Mistretta standard that allegedly insures some modicum of compliance in accordance with the nondelegation doctrine.
This oversight opens the door to the SCOTUS either issuing a very narrow ruling solely on the facts – or a broader ruling that would bring the Nondelegation Doctrine back in a blaze of nonregulatory rage. Gorsuch has a history as a prolific scholar in administrative law – and one whose bias is strongly in the ‘original intent’ camp of constitutional law.
Up till now, the nondelegation doctrine question had been moderated by the above mentioned SCOTUS decision in the Mistretta case. The Mistretta case dealt with sentencing guidelines and the court issued the following decision in 1928.
The SCOTUS decision on the Mistretta standand
”The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” U.S. Const., Art. I, § 1, and we long have insisted that “the integrity and maintenance of the system of government ordained by the Constitution” mandate that Congress generally cannot delegate its legislative power to another Branch.
Field v.Clark (1892)
”We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach
to such cooperative ventures: “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination”
J. W. Hampton, Jr., & Co. v.United States (1928)
So long as Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”
That last phrase of the Mistretta decision speaks to the establishment of an …”intelligible principle” serving as the guiding force for such bureaucratic assistance and authority. That ‘intelligible principle’ was offered as a voice of moderation allowing reasonable regulatory applications to exist as the needs of society grew. The court realized that without such moderation, any regulations derived from government agencies would be invalidated as a violation of the separation of powers mandate, unless there was specific mention of those regulations, in the original legislation.
The omission of such an ‘intelligible principle’ in the Gundy case is also the open window that Gorsuch, and now Kavanaugh, can use to apply the old Nondelegation doctrine. Gorsuch and Kavanaugh would most likely argue that such ‘regulatory discretion’ is beyond the purview of any government agency – other than the legislative branch. Translation – if a law does not specifically state an entire host of regulations, then the government agency charged with applying the same law – would have no authority to create applicable regulations. Only Congress would retain that right.
Such overly broad interpretation of the nondelegation doctrine could theoretically overturn regulations in various agencies such as the EPA, but could such a broad interpretation also overturn decisions made by the DOJ? Could such broad interpretation halt the investigation of a president who abuses power – by limiting the scope of DOJ investigations? Could such broad interpretation halt the criminal investigation of a president by a state Attorney General? If the original legislation was created purposely vague, then it would be impossible to determine if a president actually – broke the law.
One thing is sure; if the nondelegation principle is broadly applied – and the Mistretta decision overruled, then a SCOTUS swinging far right would use nondelegation to strike down multiple protections established by environmental, consumer and civil liberties groups, in favor of the billionaire class. We could, theoretically be returned to a Dickensian society controlled by ‘corporate persons’ behaving as psychotically as they desire – and ‘natural persons’ having no legal recourse other than waiting for new legislation.
How nondelegation reduces presidential power
Ironically, those who despise Trump would find a presidency with reduced political power, should the nondelegation lobby succeed. Since all government agencies report directly to the president via various cabinet secretaries; such nondelegation would directly reduce the presidential power known as the executive order.
Yet, in the age of Trump, these same ‘original intent’ jurists that argued for the very nondelegation doctrine which would substantially reduce presidential power – have also simultaneously argued for presidential immunity from prosecution. Such presidential immunity effectively contradicts nondelegation as it ‘delegates’ the potentially unlimited power of a monarch – to the president. The inconsistency of this position will not bother Gorsuch or Kavanaugh as they have proven their adherence to rabid partisan positions specifically engineered to favor the billionaire class. Such inconsistencies would be relegated as the ravings of ‘partisan leftists,’ while theoretically, any president could ‘write a blank check’ to Congress fulfilling any corporate wish-list – or even take a direct bribe – and never face jail time – due to the power of the unlimited pardon.
The lunacy of ‘original intent’ and how it subverts democracy
The very notion of ‘original intent’ regarding the Constitution is an intellectual exercise in duplicity subsumed in the notion that these jurist ‘elites’ are somehow possessing the powers of magical divination and thus know the intentions of the Founding Fathers some 200+ years ago. Not only is this claim farcical – but the ‘intent’ of the founders is irrelevant. No jurist or non-jurist can ‘know’ the intent of another without that intent being openly disclosed for all to hear. What we do know is the effect of various legislation on both privileged and marginally enfranchised groups. The GOP and the ‘far right’ would use the doctrine of ‘original intent’ to limit democratic rule within a small nucleus of self-appointed ‘elites’, while claiming judicial restraint. These ‘originalists’ are comfortable with the incongruity of their positions, knowing full well, that the ‘original’ reading of the constitution limited voting rights to a single closed group – namely white, Christian males, who owned property. Their screams of judicial restraint, against a living constitution for all persons, represents the height of hypocrisy.
The Constitution as a flawed document – by design?
Proponents pushing the ‘original intent’ school of thought have historically contended that the Constitution as originally written is a perfect, infallible document. These originalists view the SCOTUS as the high priests guarding the magic words. They have reduced legitimate jurisprudence to a discriminating theology.
There was a SCOTUS jurist that viewed the Constitution differently – Supreme Court Justice Thurgood Marshall. He was the first minority justice ever. He experienced the jerry-rigging of constitutional law firsthand as the federal law granted legal cover to egregious acts of violence against the black community. During the Constitution’s bicentennial year, he was asked to deliver the keynote address. Justice Thurgood Marshall spoke truth to power as he explained; “I cannot accept this invitation [to celebrate the bicentenial of the Constitution], for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention… To the contrary, the government they devised was defective from the start.“
The very notion that SCOTUS judges are apolitical and impartial is asinine. All judges are political and possess their own bias. The difference between the political ‘far right’ and the ‘left’, resides in each group’s bias regarding democratic rule and subsequent ‘rule of law.’ Those who push ‘original intent’ are like young children that knowingly rig the rules of the game to favor their friends. Those who see the constitution as a ‘living document’ push to expand rights to all persons equally.
The #Occupythe100 protesters know that the ‘rule of law’ is a sacred trust that should serve as an equalizer in an unequal world. The ‘rule of law’ states that all persons have equal rights and responsibilities. No one – not even a president – is above the law. There should be no privilege – only justice.
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