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Census case will demonstrate if the Supreme Court is political or not

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Census case will demonstrate if the Supreme Court is political or not

There is an unnecessary amount of controversy surrounding whether or not a citizenship question can be added to the upcoming United States census. But now that it’s here, the outcome of the case will say a great deal about the makeup of the Supreme Court and whether or not it has become a body that is driven solely by politics despite the intent of the founders to make sure it never would be.

On the surface, this case seems rather mundane. It’s just a question about the citizenship status of individuals. Some may be wondering what the big deal really is. In reality, it’s a very big deal. Census data is used to determine pretty much everything as it pertains to the relationship between the federal government and the states. Grant money, House of Representative seats, and district allocations are among the many changes that will all be determined by the census.

From a purely political perspective, this should be a no-brainer to conservatives. Of course the question should be included. It’s unfair for states who allow a higher level of illegal immigrants to gain more power as a result. These are not voters (at least they’re not supposed to be). It’s idiotic to give states a great incentives to bring in as many illegal immigrants as possible, so if the presence of a censorship question lowers the numbers reported, that’s not a bad thing.

Politically, the citizenship question is a winning play for conservatives.

But here’s the problem. The judiciary is not supposed to be driven by politics. Their job is to interpret the Constitution and the law of the land to determine how it’s to be enforced by the executive branch and whether the legislative branch is in line with the intent of the Constitution through the laws they establish. By those criteria, the Trump administration has a major problem with the citizenship question. The Census Act clearly states Congress is to be given notice of changes to the census three years in advance. They were not. The citizenship question was not part of the original list sent by Commerce Secretary Wilbur Ross in March, 2017. It was sent in the March, 2018 list, but that’s not enough time for Congress to review if we’re going solely based on the letter of the law.

This is an insanely stupid aspect of the law; it shouldn’t take Congress three years to read a question and determine whether or not they need to make new laws as a result. But it’s the law nonetheless and Ross broke it by not including the question in his original list. It was a rookie mistake made by someone who really shouldn’t be in his position, but what’s done is done.

Part of my heart says the censorship question is righteous and does not violate the Constitution, therefore it should be allowed. But the other part of my heart longs for a judiciary that is truly apolitical, one that does its job as laid out in the Constitution. If that’s the measure of this case, then the Administration clearly did not meet the standards set forth in the law to add the question to the census.

Where I take solace is knowing the balance of political bias within the judiciary favors the left. If it’s impossible to completely remove politics from the judiciary, then any win for conservatism is acceptable just as any loss for conservatism is unwelcome. I desperately want the originalist perspective to prevail in our judiciary, but if such apolitical adherence is only possible when convenient or in a robotic utopia of a truly impartial judiciary, then I’m forced to defer to the side of my heart that says, “Take the win and move on.”

We need the citizenship question in the census, and though I would have preferred to have seen it handled properly by the Commerce Department, I’ll accept a victory on it even if it comes by the hand of conservative bias.

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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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Judiciary

Elbridge Gerry-Mandering: A modest proposal

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Elbridge Gerry-Mandering A modest proposal

In 1812, Elbridge Gerry, one of the Founding Fathers, was Governor of Massachusetts. He signed a bill that created a bizarre legislative district that looked a bit like a salamander. “Gerry’s Salamander” was obviously clumsy, so it became known as a “Gerry-Mander.”

What Gerry did (with the help of the legislature) wasn’t new. It’s been done for a very long time in a vast number of places documented on Wikipedia. As Wayne Dawkings describes it, gerrymandering allows politicians to choose their voters rather than having voters choose their politicians.

Yesterday the Supreme Court ducked ruling on gerrymandering by claiming that it would improperly insert the courts into an inherently political process. We can argue with this decision on obvious fairness grounds. The Constitutional question seems completely embedded in the question. And since the Fourteenth Amendment “guarantees the opportunity for equal participation by all voters in the election,” gerrymanders interfere with the ability to vote and the “one man one vote principle.”

My own Congressional district used to be highly gerrymandered to create a safe seat for Corinne Brown. Most of it was in black areas of Jacksonville, but it had a sliver of unoccupied land connecting it with Eatonville, “the oldest black township in America.” My home in next-door Maitland got sucked into her district to get enough total voters. By packing every black voter the Republicans could find into a single “minority-majority” district, they guaranteed not only her election, but the election of a few Republicans. Nice trade. A few white voters like me got stuck.

Voters in Florida passed an initiative requiring “compact” districts that used existing boundaries such as rivers and roads. But the Republican Florida legislature could resist Gerry’s siren song, even after the voters spoke. The fight continues.

With SCOTUS’ abdication of the field to the states, it appears that no real solution is at hand. Thus, since I am clearly smarter than anyone else, I will propose an answer that may even have a chance of success. Since there are two levels, state and federal, I will propose the answer for the more difficult question. The answer at the state level can then be left to the student.

We have 435 voting seats in the US House. That number was set in 1911, and reinforced by a statutory cap in the Reapportionment Act of  1929. There’s nothing magical in that number, and it’s not set by the Constitution. All the Constitution says is that you can’t have less than one Congressman for 30,000 people and every state has to have at least one. That’s it. The 435 limit is something that Congress picked for itself.

What does this limit do? It means that each CongressCritter “represents” 800 thousand-odd people. Give me a break. They do no such thing. Because there are no term limits, and the incumbent has a pot-full of power in Congress, each CongressCritter, with rare exceptions, serves his seat, not the people. There’s just no way 800 thousand people can have any meaningful contact with him.

But suppose that we change the calculus a bit. Let’s increase the number of seats in the House. We won’t be radical. Let’s make the number of people in a district 200,000. (We could go to 40,000, like the Founding Fathers discussed without changing the core of the proposal. We might even make it better.) It’s still tough to talk directly to your Congressman, but it’s not impossible. And when a rich donor tries to buy a majority of the House, he’s got to tackle a lot more districts. The math becomes a lot harder.

But won’t that make the House completely unmanageable? In a good sense, yes. Because there are so many Representatives who are closer to their constituents than before, it becomes harder for a power broker to get them all in line. Instead of being able to corral one questionable vote, now four votes have to be dealt with. Power has just moved toward the people.

But what about that historic building that seats about 600 people? Now we’re talking about 1,800 Congressmen, and they won’t all fit. And that’s a good thing. This will require that Congress physically decentralize. And there’s nothing that even requires the Congress to ever assemble in D.C., although there are many who will want to continue the theatrical aspects of that body. The need to physically assemble has passed.

With our modern technology, it is more than practical to “do Congress” from a distance. There are many teleconferencing apps, and I’m sure that the DoD and CIA can supply secure versions so that when a Representative casts a vote, we can be sure who actually cast it. All the hearings can be similarly conducted. In fact, it’s not physically necessary for a Representative to leave home for any Constitutionally mandated tasks. One may argue that face time is very important, but that can largely be supplied with FaceTime, Zoom, or Skype.

And that brings us back to Elbridge Gerry’s bastard stepchild. If we have 1,800 Congressional districts, the task of creating “safe” districts becomes more difficult, simply because there are so many. (Imagine 9,000 or so if we make each district 40,000 people!) Certain areas, such as Airhead-Cortez’ home, will be very safe Democrat districts. Others in flyover country will be very safe Republican districts. Surprise!

The key difference is that when the granular data on party affiliation is collated and matched against the map, those bizarre districts, such as the one I was in, will largely disappear. Because you’ll fill a district with fewer people, a smaller area will be required. And it won’t be hard to define easy boundaries. The smaller the number of people, the harder it will be to get cute. In NYC, a district might just be a couple of city blocks.

When Representatives are forced to actually represent, then we will find ourselves returning to competitive Congressional races. Each race will be less expensive, and will be more likely to respond to old-fashioned shoe leather. Our 90% re-elect rate will probably change. Berkeley will still get its hard-Left choice. Orange County, California will move from all-blue to a mix of blue and red.

Finally, how many Representatives will have to fear that the Speaker will discover the skeletons in their closets to pressure votes? Will they fear their constituents more, and be pressured to actually work for the American people?

Hmmmmmm.

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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