The Constitution’s Week in Review – 12 March 2016

Another suit[1] challenging Ted Cruz’s eligibility and another suit dismissed on a technicality, this time for missing a New York filing deadline.  Still no ruling on the merits of the case.

Article 3. Replacing Scalia

Judge Robert L. Wilkins’ name wasn’t on the first list I saw of possible replacements for Antonin Scalia.  This article[2] reads like someone is suggesting the President consider Wilkins. 
He was nominated by President Obama to a District Court position in 2010 and unanimously confirmed, but three years later, when Obama tried to elevate Wilkins and two others to the District of Columbia Appeals Court, Republicans in the Senate blocked all three nominees. They argued that the court didn’t have sufficient workload to justify filling its three open positions (there are anywhere from 6 [1^st Circuit] to 29 [9^th Circuit] seats on an appeals court but cases are normally only heard by three-judge panels instead of “en banc,” meaning by the entire court).

Republicans actions infuriated Democrats enough that Harry Reid exercised what’s became known as the “nuclear option,” changing the Senate rules so that only 51, rather than 60, votes were needed to advance a nomination. Wilkins was ultimately confirmed, 55 to 43, a reasonably close vote.  This would indicate that, were he to be nominated to the high bench and actually given a confirmation hearing, he would come under close scrutiny.

Apparently not taking the hint over Wilkins, later in the week it was leaked[3] that the President had narrowed his list of potential nominees to five.  Surprise, surprise, four of the five donated to his election campaign. Federal judges Sri Srinivasan ($4,250), Jane Kelly ($1,500), Paul Watford ($1,000) and Ketanji Brown Jackson ($450) were all donors. Judge Merrick Garland apparently had enough sense not to do so.  I wonder whether these judges could be impartial when hearing a case challenging executive orders.  Hmmm.

First Amendment. “It’s not over till its over”
 
Those concerned with the Supreme Court’s ruling in Obergefell v. Hodges (homosexual marriage) can take heart in the Alabama Supreme Court’s opinion this week that Alabama judges are bound to follow existing Alabama law, which prohibits the issuance of marriage licenses to homosexual couples, rather than the U.S. Supreme Court’s Obergefell opinion.  The decision, although lengthy, should be read in its entirety and may be downloaded via footnote.[4]  Justice Moore quotes extensively from Chief Justice John Roberts dissent in Obergefell[5] (which you should also have read by now).
 
Justice Moore’s ruling (and the Supreme Court’s Obergefell ruling) can be best summed by this statement from Moore’s opinion: “That a majority of the [U.S. Supreme] Court may identify an "injustice" that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment.  Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it.”
 
Please help ensure that Justice Moore’s opinion is passed to all who you think are (or should be) interested. Perhaps other states will take similar action.
 
The Gall!  I had never encountered the word “hubris”[6] before the word was used derogatorily of the last Bush administration.   Now that I know what the word means, I see examples of it all the time, principally in the way the Obama administration acts towards “mere citizens.” 
 
But this takes the cake:  apparently the Justice department has held discussions[7] (and may still be doing so, for all I know) over whether it would be appropriate to bring civil charges against those speaking out against “climate change.”  Freedom of thought and speech be damned, there is only one “truth” for this administration, and it will be enforced!
 
Property Rights.  Want to build a pond on your land?  Have all the state permits required?  Be careful before you start digging, the EPA demands you also get their OK.  Good luck with that.
 
The EPA and Army Corps of Engineers make tens of thousands of determinations each year that private property contains wetlands protected under the Clean Water Act (CWA).  On March 30th, the Supreme Court will hear oral arguments in U.S. Army Corps of Engineers v. Hawkes Co. The case will decide whether landowners have access to the courts to challenge EPA rulings that their property contains such wetlands and thus makes them subject to federal regulation.
 
This coming Monday, March 14, from 12:00pm - 1:30pm, the CATO Institute will host Shauneen Werlinger, Legal Fellow at the Pacific Legal Foundation; and Steven Eagle, Professor at George Mason University School of Law to discuss this issue, focusing on the question: What recourse do landowners have when federal agencies decide that private property contains wetlands?

Thirty states are now suing to overturn the newest CWA rule expanding power over “waters of the United States,” but invalidating that rule won’t change existing federal control over individual landowners if the agencies continue to assert similarly over broad judicial review authority.  If you are concerned about this issue I encourage you to tune in to the CATO live event.  I’m concerned, I’ll see you there.
 
Constituting America’s 90-Day Study

There’s talk of the Republicans having a “contested” nominating convention this summer.  Ever wonder how political party nominating conventions got their start?  This essay by Professor Joseph Postell answers that question, as well as who encouraged the strengthening of the two-party system.


This article was orignially published in the Fairfax Free Citizen.

Gary Porter recently did a Webinar for Christian Financial Concepts. You can watch the video here - 
"Which Constitution? America's Critical Choice"

Sources:

[1] http://www.newsmax.com/Politics/judge-dismisses-ted-cruz/2016/03/08/id/718156/
[2] http://www.srnnews.com/possible-supreme-court-pick-championed-black-history-museum/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SrnNewsUs+%28SRN+News+%C2%BB+U.S.%29
[3] http://eaglerising.com/31371/the-most-corrupt-administration-ever-just-announced-their-shortlist-for-the-supreme-court-and-the-list-will-infuriate-you/
 
[4] http://lc.org/PDFs/030416OrderDismissingPetitionsandMotionswConcurrence.pdf
[5] http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
[6] http://www.merriam-webster.com/dictionary/hubris
[7] http://cnsnews.com/news/article/melanie-hunter/ag-lynch-doj-has-discussed-whether-pursue-legal-action-against-climate