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Why Neil Gorsuch stood alone as the only conservative perspective on the Yakama Tribe Supreme Court case

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Why Neil Gorsuch stood alone as the only conservative perspective on the Yakama Tribe Supreme Court

The judiciary is supposed to have one guide when forming fresh perspectives: the Constitution. As they examine the constitutionality of laws and other government actions, they often refer to previous rulings as precedent while looking for similar rulings as justification for leaning one way or another, but at the end of the day it’s the Constitution alone that is supposed to guide their judgments. That’s why we should look for judges who have originalist perspectives, not necessarily conservative ones (though, let’s be honest, the vast majority of originalist perspectives will align with a conservative perspective).

Part of conservatism is conserving the original intent of a law, or in the case in question, a treaty. The Yakama Tribe signed a treaty with the United States government that gave them control of a huge amount of tribal land in Washington state. Part of the exchange included the ability for Yakama traders to use U.S. highways for free.

Washington charges per gallon for fuel trucked in from out of state. One Yakama company claimed the 1855 treaty meant they were not to be charged this tax. The decision in the Supreme Court went mostly along expected political leanings with the “conservative” Justices wanting to charge the tax and the “leftist” Justices siding with the Takama Tribe. The tiebreaker turned out to be Neil Gorsuch, who went to the “leftist” side but with the only conservative reasoning to drive a vote.

The dissent claimed the treaty allowed for free passage on highways just as any American citizen can travel, but that the taxes set by Washington must still be paid. Only Gorsuch recognized that the original intent of the treaty was to grant the tribe free passage, as in free of charge regardless of what the U.S., state, or local governments wanted to charge. This is the right perspective. It’s the conservative perspective.

Should the other Justices who voted like Gorsuch get kudos as well? Probably not. I haven’t read their statements, but it’s safe to assume they ruled based on the party politics of supporting Native American rights whether they’re justifiable or not. Gorsuch ruled based on a proper interpretation of the treaty.

Conservatism and originalism go hand-in-hand when judges take the politics out of what they do. It’s hard. I’m not a judge so I shouldn’t… judge. But this seems to be a case where party politics played too much of a role. Gorsuch was right.

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Immigration

Judicial tyranny: ACLU will get judges to block Trump’s latest asylum maneuver

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Judicial tyranny ACLU will get judges to block Trumps latest asylum maneuver

As reports come in that President Trump is going to block most asylum seekers who are crossing through Mexico through enforcement of a properly interpreted rule, the ACLU and others have already threatened to challenge it in court. And they’ll succeed. There will be a judge they can find who will rule against the President’s actions just as they find someone to rule against all of the President’s attempts to slow the surge of illegal immigrants crossing the southern border.

This is why I have no sense of hope even as other conservative outlets praise the President’s actions. We’re not looking at an situation in which the President can keep throwing things against the wall until something sticks. Nothing will stick until it reaches the Supreme Court and is forced to stick, and with John Roberts as Chief Justice, there’s no guarantee the rule of law will win in the end.

There are some who rightly go after judicial tyranny, the current state of affairs in which too many judges have supreme power over what can and cannot be done by America’s leaders and representatives. It seems no matter what the President does to try to stop illegal immigration, there’s certain to be a judge who rules against it. These partisan hacks are not doing their job for the sake of the people or the Constitution. They’re operating on a progressive agenda, and open borders is the end game there.

This, more than anything else, is why the 2020 election is so important. The GOP (hopefully) learned its lesson in 2017 and 2018 by not acting to stop the current border crisis before it began. Now that it’s a full-blown emergency, they need to regain control of the House and retain control of the Senate and White House. No other action will prevent the invasion at the southern border as millions intend to continue stealing our nation’s sovereignty.

They do this because progressive politicians are encouraging it.

Here’s the AP story. Before it are my final thoughts on the matter:

WASHINGTON (AP) — Reversing decades of U.S. policy, the Trump administration said Monday it will end all asylum protections for most migrants who arrive at the U.S.-Mexico border — the president’s most forceful attempt to block asylum claims and slash the number of people seeking refuge in America.

The new rule, expected to go into effect Tuesday, would cover countless would-be refugees, many of them fleeing violence and poverty in Central America. It is certain to face legal challenges.

According to the plan published in the Federal Register , migrants who pass through another country — in this case, Mexico — on their way to the U.S. will be ineligible for asylum. The rule also applies to children who have crossed the border alone.

The vast majority of people affected by the rule are from Central America. But sometimes migrants from Africa , Cuba or Haiti and other countries try to come through the U.S.-Mexico border, as well.

There are some exceptions, including for victims of human trafficking and asylum-seekers who were denied protection in another country. If the country the migrant passed through did not sign one of the major international treaties governing how refugees are managed (though most Western countries signed them) a migrant could still apply for U.S. asylum.

Mexican Foreign Relations Secretary Marcelo Ebrard said Monday that his country “does not agree with any measure that limits access to asylum.” Mexico’s asylum system is also currently overwhelmed.

Trump administration officials say the changes are meant to close the gap between the initial asylum screening that most people pass and the final decision on asylum that most people do not win.

Attorney General William Barr said that the United States is “a generous country but is being completely overwhelmed” by the burdens associated with apprehending and processing hundreds of thousands of migrants at the southern border.

He also said the rule is aimed at “economic migrants” and “those who seek to exploit our asylum system to obtain entry to the United States.”

But immigrant rights groups, religious leaders and humanitarian groups have said the Republican administration’s policies amount to a cruel effort to keep immigrants out of the country. Guatemala, Honduras and El Salvador are poor countries, often wracked by violence.

“This is yet another move to turn refugees with well-founded fears of persecution back to places where their lives are in danger — in fact the rule would deny asylum to refugees who do not apply for asylum in countries where they are in peril,” said Eleanor Acer of Human Rights First.

ACLU attorney Lee Gelernt, who has litigated some of the major challenges to the Trump administration’s immigration policies, said the rule was unlawful and the group planned to sue.

“The rule, if upheld, would effectively eliminate asylum for those at the southern border,” he said. “But it is patently unlawful.”

U.S. law allows refugees to request asylum when they arrive at the U.S. regardless of how they arrive or cross. The crucial exception is for those who have come through a country considered to be “safe,” but the Immigration and Nationality Act, which governs asylum law, is vague on how a country is determined safe. It says pursuant to a bilateral or multilateral agreement.”

Right now, the U.S. has such an agreement, known as a “safe third country,” only with Canada.

Mexico and Central American countries have been considering a regional compact on the issue, but nothing has been decided. Guatemalan officials were expected in Washington on Monday, but apparently a meeting between Trump and Guatemalan President Jimmy Morales was canceled amid a court challenge in Guatemala over whether the country could agree to a safe-country agreement with the U.S.

The new rule also will apply to the initial asylum screening, known as a “credible fear” interview, at which migrants must prove they have credible fears of returning to their home country. It applies to migrants who are arriving to the U.S., not those who are already in the country.

Acting Homeland Security Secretary Kevin McAleenan said additional funding given by Congress for aid at the U.S.-Mexico border isn’t enough.

“Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States.”

The treaties that countries must have signed according to the new rule are the 1951 Convention relating to the Status of Refugees, the 1967 Protocol or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But, for example, while Australia, France and Brazil have signed those treaties, so have Afghanistan and Libya, places the U.S. does not consider safe.

Along with the administration’s recent effort to send asylum seekers back over the border , Trump has tried to deny asylum to anyone crossing the border illegally and restrict who can claim asylum, and the attorney general recently tried to keep thousands of asylum seekers detained while their cases play out.

Nearly all of those efforts have been blocked by courts.

Tens of thousands of Central American migrant families cross the border each month, many claiming asylum. Border facilities have been dangerously cramped and crowded well beyond capacity. The Department of Homeland Security’s watchdog found fetid, filthy conditions for many children. And lawmakers who traveled there recently decried conditions .

But many migrants say they are simply too scared to stay in their own countries.

Oscar Ponce, a 48-year-old bus driver from Honduras who was waiting in a Mexican border town to cross into the U.S., said he wanted to apply for asylum legally. He left his home after gangs threatened to kill him if he didn’t pay their “tax.”

“Plan B is through the river,” Ponce told The Associated Press in Ciudad Juarez.

Immigration courts are backlogged by more than 800,000 cases, meaning many people won’t have their asylum claims heard for years despite more judges being hired.

People are generally eligible for asylum in the U.S. if they fear return to their home country because they would be persecuted based on race, religion, nationality or membership in a particular social group.

During the budget year for 2009, there were 35,811 asylum claims, and 8,384 were granted. During 2018 budget year, there were 162,060 claims filed, and 13,168 were granted.

___

Associated Press writers Cedar Attanasio in Ciudad Juarez, Mexico and Michael Balsamo in Washington contributed to this report.

Final Thoughts

As long as there are judges who can be found that hate the President’s agenda, the ACLU will block literally everything. The border solution will only be solved at the ballot box in 2020. Democrats must be removed wholesale.

We are currently forming the American Conservative Movement. If you are interested in learning more, we will be sending out information in a few weeks.

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Judiciary

The huge implications of 1st Amendment ruling against Trump blocking on Twitter

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The huge implications of 1st Amendment ruling against Trump blocking on Twitter

It’s barely a blip on most pundits’ radar. But there are tremendously important implications of a ruling today that the President cannot block users on Twitter. And the White House argument that it’s his “personal” Twitter account combined with the court ruling means a lot to many more politicians.

But before we get into why, here’s a recap from Fox News:

Appeals court rules Trump violated First Amendment by blocking Twitter users

In a Tuesday decision, the 2nd Circuit Court of Appeals noted that because Trump uses Twitter to communicate with the public about his administration, and his account is open to the public for people to comment on his posts, it warrants constitutional free speech protection under the First Amendment.

“We do conclude,” the opinion said, “that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.”

Opinion

The reason this is a big deal is because it positions Twitter as a public platform for political information when used by government officials for official business… which can be just about anything. Unless allthey do is post pictures of their kids and root for their favorite sports team, it’s hard to make an argument that it’s not a public forum protected by the 1st Amendment. Though the White House claims it’s his “personal” account, there have been many instances in which the President has posted official decisions through Twitter. Sometimes, the first time his own team hears about a new policy is through his Twitter account.

This should apply to every government official, elected or not. Even bureaucrats who post a political opinion must be included in this since they are part of government and suppression of speech must be protected. When a public official blocks someone, they are preventing that American from having the same access to communicate with government officials as anyone not blocked.

But there’s another important implication here. If Twitter users are protected by the 1st Amendment from being blocked by the President and presumably other public officials, what other 1st Amendment protections should apply? Many Twitter users utilize Twitter as a means of public expression for their thoughts. One would think that as long as it’s given platform protection under Section 230 of the Communications Decency Act, then the only speech that should be censored in any way on Twitter is speech that breaks specific laws. Saying something unpopular like “boys are boys and girls or girls” or “learn to code” would therefore be allowable.

Personally, I’ve gone back and forth on this issue. On one hand, I am well aware that big tech companies are purging, censoring, and silencing conservatives and Christians and must be stopped. On the other hand, I am eternally skeptical of government involvement in, well, anything. I didn’t see an angle in which this could be turned into a 1st Amendment issue even with big tech companies having platform protection because they’re still private companies and the government isn’t  involved.

Except now, they are. The angle is apparent.

If politicians are using this as a public forum in the eyes of the judiciary, then private citizens have an avenue they can take to protect their own speech. Again, it’s imperative that we do not allow DC to regulate social media platforms, which was always my greater fear than social media censorship. But with this development, perhaps we can have our cake (freedom on social media) and eat it to (1st Amendment protections without getting legislation or regulations involved).

This really could be a very good thing even if the White House is opposed.

Quote

“The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate.” – Second Circuit Court of Appeals Ruling

Final Thoughts

It isn’t just the President’s Twitter account that will be affected by this ruling. At the very least, other politicians will be forced to comply. In a best-case-scenario, free speech may end up being protected on these platforms for all of us.

We are currently forming the American Conservative Movement. If you are interested in learning more, we will be sending out information in a few weeks.

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Judiciary

John Roberts, consistently inconsistent

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JOhn Roberts, Consistently Inconsistent

Late last week, the Supreme Court gave a very odd ruling on the census question related to citizenship. The court determined that the question was a legal one to ask, under both the Census Act and the Constitution. However, Roberts ruled with the majority which is adding an additional requirement of Commerce Secretary Wilbur Ross. Ross said he was requesting the question be added back because the Department of Justice asked for it to aid in enforcement of the Voting Rights Act.

However, a memo was uncovered that indicated a change in the way Congressional districts are apportioned based on citizenship, not total population could change the map. Because of this information, Chief Justice John Roberts decided that he needed to be satisfied that there was not a private motive that was at odds with the public rationale that the Secretary had offered.

According to Josh Hammer, Editor at Large for The Daily Wire and In-House Counsel for First Liberty Group, this ruling is really at odds with the majority opinion authored by Roberts for the Travel Ban case. In that ruling lower courts had used Trump’s public statements and tweets into consideration to determine private motives. Justice Roberts did not consider these in the majority opinion. Hammer said these two decisions are hard to reconcile in an interview with Ben Shapiro. Roberts essentially wants to read the mind of the Commerce Secretary and ensure his motives are good but discounted private motives of the President in the Travel Ban case.

Hammer agreed strongly with Justice Clarence Thomas’ dissent. Thomas basically wrote that the Court’s inquiry should have ended once it was determined the question did not violate the Elections Clause of the Constitution or the Census Act. Hammer added this is nearly as baffling as Roberts’ infamous Obamacare decisions.

It often seems that Chief Justice Roberts is sticking his finger in the air to test the political winds on certain issues. Or that he is trying to prove the Court is not leaning Conservative. Most Conservatives have one standard. Does the action being reviewed by the Court violate the Constitution and applicable laws. In this case it was agreed it did not. Yet here is Justice Roberts trying to engage in some assessment of private motives.

This is even more astonishing when you look at the history of the citizenship question on the Census. According to a timeline provided by NPR the question of citizenship has been asked in some form on nearly every census or American Community Assessment with the exception of 2010. The question proposed for 2020 “Is this person a citizen of the United States?” was also used in 1990 and 2000. The primary difference is in the previous years it was asked in one in six households. In 2020 it was intended to be asked in every household.

However, if Roberts was testing the political winds, survey data from Rasmussen on June 28, 2019 shows 73% of voters believe the question should be asked. Moreover, 62% believe Congressional representation should be based on citizens only. If a candidate for President received 62% of the vote, it would be considered a landslide. Perhaps Congress ought to write a law withe that level of consent of the governed. But they won’t with Speaker Pelosi at the helm.

I believe the out-migration in her deep blue strongholds is the primary reason the Speaker won’t move to fix the asylum laws. Let everyone in, force catch a release of those who have children and send them to sanctuary states and cities. Of course this only works if everyone is counted for the purposes of apportionment.

Still, the Democratic debates might have given Secretary Ross a gift. All ten on the second night indicated they wished to give illegal immigrants free healthcare. That would require a new assessment of program cost by the Congressional Budget Office. Seems to me that could be a great basis for public rationale. Voters have a right to know how much a program is going to cost once proposed by a candidate. Or in this case ten candidates. The 11-12 million number has been thrown out there for too long. We know at least 400,000 have come in the last several months.

So stay tuned. It looks like President Trump wants to ensure this can be decided before the census is deployed. Further, Americans have the right to know what an accurate number of illegal immigrants is. The time for estimates is over.

We are currently forming the American Conservative Movement. If you are interested in learning more, we will be sending out information in a few weeks.

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