Showing posts with label 14th Amendment. Show all posts
Showing posts with label 14th Amendment. Show all posts

Saturday, July 12, 2025

Is it unconstitutional for ICE to snatch people off the street or in ag fields because they look undocumented?

It may sound unAmerican for ICE to snatch from streets and chase through fields those who look like they could be undocumented, detain them, and ship them off to a domestic or foreign gulag without a chance for the subject to object or even prove citizenship, birth or special refuge status, or be guilty of any crime more than a minor traffic violation or lack of documentation, but it may also be unconstitutional. The ICE idescriminate action of snatching and shipping off to detention just got slapped with a lower federal court ruling temporarily stopping that practice in regards to Los Angeles and  Ventura County/  The judge put on temporary hold the ICE practices that had agrigultue workers running for their lives and resulting in the death of a long time undocumented resident and farm worker and any number of landscape workers and day laborers. Their dragnet has even trapped citizens and properly documented migrants. Now in play is the 4th Amendment that refers to the right of people (not just citizens) to protection from warrantless seizures,   requiring probable cause to charge someone of a crime, and due process.  This one may end up in the Supreme Court. 

Judge Blocks Trump Administration From Carrying Out Indiscriminate Immigration Raids In Los Angeles

The 4th Amendment applies to protect people from warrantless searches and seizures and pertains to the concept of probable cause, a threshold of evidence required to charge a person with a crime. I'm no attorney, but I did find some illuminating, credible sources..

The administration contends they are only going after those with  criminal background, yet 70% of those apprehended and detained by ICE do not have records.  That one is an easy lie to prove: https://apnews.com/article/fact-check-trump-immigration-crime-ice-criminal-dangerous-violent-99557d9d68642004193a9f4b7668162e?

Fourth Amendment | U.S. Constitution | US Law | LII / Legal Information Institute

There is another case affecting those in the US with temporary protective status that will also have a strong relationship to the rights of migrants and the Fourth Amendment. It stops deportation of Venezuelans here on that status...and reaffirms the Constitution protects them and their right to due process. This was upheld by an appeals court 8/29/2025   It will end up in the SupreAppeals court upholds the rights of those on temporary status in the US because of asylum. Due proces and the Constitution do apply. This is an important case and will end up in the lap of the Supreme Court. Appeals court rules against Trump's plans to end legal protections for 600,000 Venezuelan migrants | AP News

From Google AI with references to source: 

  • "The people" is not limited to citizens:
    While the Fourth Amendment uses the phrase "the people," it has been interpreted to include anyone within the United States' physical borders, not just citizens. 
  • Supreme Court precedent:
    The Supreme Court has addressed this issue in the case United States v. Verdugo-Urquidez, ruling that the Fourth Amendment does apply to non-citizens within the U.S. 
    ( 
  • Due process and equal protection:
    The Fourteenth Amendment also guarantees due process and equal protection under the law to all individuals, including non-citizens, which further reinforces the idea that the Fourth Amendment's protections are not limited to citizens. 


One of the more disturbing comments to a recent post came from a person who claimed the president of the US was only for its citizens, as if to imply the president had no responsibility to honor the rights of undocumented migrants. ., I replied, the president was responsible for both the rights of the undocumented and those of the documented and citizens are wrong to claim the President of the US is only for citizens and not for non-citizens. The President may be elected by only citizens, but the responsibility of the office to comply with the Constitution regarding non-citizens means the president is not just like a president for just citizens, but for all in the USA. I wondered if it was her way of rationalizing a belief that undocumented migrants had no rights, or did it mean to her that she would only respect what Donald Trump said about immigrant rights? 

  The issue of undocumented migrants' rights has certainly risen in the context of the discussion of the 14th Amendment regarding birthright citizenship and other provisions of that amendment, since the wording clearly states it applies to "persons," not just citizens. That one will soon be in the hands of the Supreme Court, as a lower federal court has just ruled Judge Blocks Trump’s Birthright Citizenship Order in Class-Action Challenge - The New York Times

Third court blocks Donald Trump birthright citizenship order nationwide after Supreme Court decision

MUFTIC FORUM BLOG: Are the ICE detainees and deported due to racial targeting?


Saturday, April 27, 2024

Will the Supreme Court in the future be called the Roberts Court or the Trump Court? Updated 4/16/2025

 Will the Supreme Court try to slow-walk democracy to death? Will history call the Supreme Court not the Roberts Court but instead the Trump Court? Will the Supreme Court be just another legislative body like the current House's majority under the fearful spell and control of  Donald Trump? Will it ever be viewed again as a respected final word by learned justices determining compliance with the intent, lower court rulings, or interpretation of the Constitution?  That is the danger the current Supreme Court faces: total loss of credibility and respect as an independent arbiter, the last word in critical decisions about governing.   

 Update 4/16/2025 Trump has chosen to defy the courts, setting up a full-blown constitutional crisis; an act, if successful, would destroy the courts' effectiveness in enforcing any rule. This Venezuelan deportee case is the case the Trump administration is choosing to try to challenge and destroy the independence of the judicial system and make him the ruler of the law.  The Trump regime thinks they are clever because Venezuelans do not have any sympathy in the American population, and the fact that the victim had been wrongfully deported is uncontested, so those questions are off the table. But now it is down to brass tacks: Who controls the rule of law: Trump or the independent judiciary?  Update: 4/16/2025 https://www.msnbc.com/deadline-white-house/deadline-legal-blog/judge-boasberg-trump-criminal-contempt-deportation-rcna200064This was over the sneaky removal of deportees before they could face a due process hearing. The Judge has the power to prosecute and appoint an attorney to do so if the DOJ refuses.

Still there is another possible contempt of court case from another judge who has been asking for proof that the Trump regime has made any effort to 'facilitate" the return the wrongfully deported individual per the Supreme Court ruling. These are criminal contempt charges if they are levied. While Trump has immunity from criminal acts committed as part of his official duties, any underlings do not have --that immunity. Impeachment is the only method to hold Trump accountable, it appears, at this point.

Update: 5/23/2024 The recent flag-flying scandal regarding Justice Alito, first the upside down flag now adopted by the January 6 rioters flying at his house, now the Christian Nationalist flag also carried by the January 6 rioters, point to Alito's hidden agenda on the Court regarding two of the most important cases the court will hear...Trump's immunity from crimes and the appeal from January 6 rioters who were convicted. He must recuse himself, or the Court will begin to look even more like the Trump Court or, as another wag put it, the Extreme Court.  https://www.abc10.com/article/news/nation-world/justice-samuel-alito-second-jan-6-related-flag-spotted-at-home/ Add this to Justice Thomas' wife being part of the January 6 Stop the Steal rally and support of the lie, and the Court's credibility takes even a bigger hit.  Both Justices offer the same lame alibi: My wife did it.  (Neither Thomas nor Allito have distanced themselves from their wives, however, on their position)    https://www.washingtonpost.com/politics/2022/03/14/ginni-thomas-jan-6-rally-capitol-attack/

Continuing with the original posting: 

Trump's argument that he could not be an effective president without it is absurd. We have had 44 presidents before him who functioned without blanket immunity. Now, when we got 45, and the aftermath was indictments for numerous crimes, he said he needed immunity. Why? To avoid the indictments from going to court and trial? To give him the power he needs to break laws to become a dictator if he is elected in November? Note: He is the only president to be indicted for crimes and the only president impeached twice for high crimes and misdemeanors.

My take on the April 25 Supreme Court hearings on Trump's demand for blanket immunity is that he will not get blanket immunity, but there will be attempted a kind of carveout engineered by the Trump justices for "official duties." They are inventing this concept since the Constitution has no provisions for such actions. The Constituion does require the chief executive to faithfully execute the laws. Committing a crime to execute the laws, to violate the laws, could not fit the definition of "faithfully" in this layperson's understanding of those terms.

 The purpose of such a maneuver is to give an excuse to send it back to the appeals court to define what is and what is not official duties and private acts so that he can get immunity for official duties that may or may not be carried out by crimes. This was revealed in questioning that even Trump's attorney admitted most of the January 6 indictment concerned private acts. It is no more than a BS stall tactic by the Trump loyal justices to put the January 6 trial on ice until after the November elections. The trial time clock is running out soon, and the Supreme Court has already added months by scheduling, delaying the hearing of the issue for months.  If Roberts agrees to this tactic and/or the Trump justices hold firm, the Supreme Court will deserve the title of the Trump Court and not the Roberts Court.

More follows:

What is at stake in the presidential immunity case is whether this country will continue as a democracy or not.  Trump himself is not only trying to divert attention from the relevant case that could likely judge him a criminal and with evidence exposed to the public in the middle of the campaign but also to give Trump himself an admitted wannabe dictator, cover for committing crimes if he ever gets into the White House again. He could ignore any laws that would block his ambitions to seize power and/or to personally benefit him.  That is the travesty against democracy now being committed by some justices on Trump's behalf, which is happening before our eyes. 

I explain below why I think democracy is at stake and that some justices were using the hearing as a tactic to protect Trump.

An excellent non-partisan summary of the April 25 hearing on the immunity issue. https://www.yahoo.com/news/key-takeaways-from-supreme-court-hearing-on-whether-trump-has-presidential-immunity-that-shields-him-from-criminal-trials-212849131.html  

tt appears to other observers and me, that the Trump Court majority is attempting to bury the coup case and keep it from the eyes of the public, who need the information to make a rational decision. It is a political tactic by political actors in the guise of justice.  It appears to me that the Trump Court majority is attempting to bury the coup case and keep it from the eyes of the public,  some still who need the information to make a rational decision. They might be enough to swing the vote to Biden by either those baililng on Trump voting for Biden or sitting on their hands. (Recent CNN  SSRS  poll: 3/4 of those Trump supporters say they will support Trump even if he is found guilty of a crime, and the other 1/4 would consider not supporting him. 12% of total voters would not support Trump if he is found guilty of a crime). No wonder Trump's legal team strategy is to engineer delay all trials until after the November election, where either Trump wins and deep-sixes any of the federal cases (state cases would continue) or the federal cases would continue. It is clear, at least, that even the Supreme Court justices would not give him the blanket immunity from criminal prosecution Trump seeks, so the Trump-friendly justices now seek to tie up the process in knots by ping pong in the decisions between lower courts,  engineering the sought after delay.  https://www.cnn.com/2024/04/25/politics/cnn-poll-trump-trial/index.html

What is not clear is whether American voters understand there is a link between "blanket immunity" and the continuation of democracy.  In December, a YouGov poll revealed that when asked if they supported a dictatorship over democracy, the result was that only a small percentage agreed with having a dictatorship. https://today.yougov.com/politics/articles/48238-most-americans-support-democracy-and-oppose-dictatorship However,  by February, Trump embraced the concept of being a dictator and his loyalists fell in line. Trump's own promise he "would be a dictatorship for a day" was ok for 3/4 of those who identified themselves as Republicans.   https://thehill.com/homenews/campaign/4453457-74-percent-of-republicans-say-its-fine-for-trump-to-be-dictator-for-a-day/ What a bunch of fools If Trump had immunity from committing crimes,  he could run rampant over existing laws that restrict presidential power, from bribery to assassination of rivals to oppressing press freedom to putting down any peaceful protests and gatherings.  In one day, he could sign the documents already prepared by the Heritage Foundation to allow him to fire thousands of federal employees and replace them with his loyalists, as well as replace those heading regulatory agencies with his sycophants such as licensing media outlets and protect consumers from environmental catastrophes, dangerous products, unfair business practices, and loan sharks. withdraw the US from NATO and throw the economy into a tailspin by sabotaging the only institution that could control inflation, the Federal Reserve. He has already promised to do all of this. and the Heritage Foundation, with millions in the bank, is already at work lining up those replacement loyalists to Trump. The lists will be ready to go on day one.   With a Trump Supreme Court, forget the guardrails of the justice system, and with such power of appointments, a jubilant business community and any GOP opposition to Trump will be hailing "the boss" if they want to have any political power.  The raised clenched fist palms forward will be the 2025 version of the old nazi salute. 

Listening to the hearings and the loaded question the Court's majority ordered the two parties address in advance of the Trump/January 6/immunity hearings, it was already clear a pro-Trump "conservative" block of justices was trying to ship the question down to the purgatory of the lower court to delay any decision until after the November election. The hearings revealed the suspicions that the hearing was about a political tactic as the Trump justices tried to construct an argument on an issue that was originally supposed to answer the question of whether Trump was totally immune from criminal prosecution for acts committed while he was in office. Instead, the Trump justices twisted the question to become if he could be immune in special instances and what were they? Let's focus on that issue, whether or not it was related to the case they were hearing, they urged, as if they wanted to create a new law to review.  If successful, the Trump majority would deprive Americans of the critical information needed to make a rational judgment of the guilt of Donald Trump in the attempted January 6 coup and the fake elector's scheme that led to that fateful day. The indictment papers of the Department of Justice special prosecutor are not enough to convince fence-sitters when they have to cast a ballot. The final word should be from the jury of Trump's peers and whether voters will ever have a chance to hear both sides of the issue aired in the trials of the century or not before they mark their ballots.

 What was asked of the Court by Jack Smith was a simple question: Does Donald Trump have absolute immunity as Trump had claimed in his defense or not as his defense in this particular case. We saw three Trump loyal justices quibbling over hypothetical theories that any president in the future would have immunity while doing "official acts."  They rudely cut short any attempt by non-Trump justices to apply their decision to the case at hand.  It was a Trump-supporting campaign tactic, not a Court considering the Constitutional relevance or application.  

What happened in the Justice's question period is that one of their own conservative justices, a Trump appointee, Justice Amy Coney Barette, brought the hearing down to the earth to consider the actual case before them. She read off some key charges in Smith's case, including whether Trump's alleged participation in the fake elector scheme and asked whether these were public or private acts..What Trump's attorneys had to admit was they were private acts. If that's the case,  why quibble over the public vs private debate when it is virtually irrelevant to this particular case? The obvious answer is that referring the case back to the appeals court to make that judgment call, will likely delay the chance the public will ever get a jury verdict or hear the elements before the November election. The possibility is that Smith could drop the other  "official acts" accusations or split the case into two and just go forward with those elements Trump's lawyers admitted were private...or the appeals court judge could quickly hold a simple process and quickly rule.  (Opinion of some attorneys on media opined a full-blown hearing before the appeals judges to define any difference in terms to carve out exemptions and define official acts was not needed. It could shortcut their  review process.) /www.cnn.com/politics/live-news/supreme-court-trump-immunity-04-25-24/h_74e0277f76c2d77793d748c5b87f60c5

 Criminal acts can be committed while doing both public acts  (as some of the justices noted) and private ones, and the president does not have immunity in either case. In fact, what separates whether any act is a crime depends on the prosecutor proving the defendant's intent to break the law, not whether it is done in an official capacity or a private one. In short, while committing an official act, a crime can also be committed. There is or should be no cover to commit a crime by calling it an "official act".  That conclusion seemed logical. While I am not a lawyer, just a layperson,  I sensed that there is a partisan tactic to muddy the waters and delay, delay any jury hearing the case and deciding guilt or innocence. What is forgotten in the quibbling is that for a defendant to be found guilty of crimes must of a crime, the test is not whether it was a public or private act, but a jury needs to find proof beyond a reasonable doubt that there was proof of intent to break the law,  whether or not it was committed while doing an official act or a private one.  

This April hearing about a specific, historic case over presidential immunity, it is not the only example of how a Supreme Court could contribute to democracy's demise., slow-walking it to death and tying it in knots on side arguments, but there are examples of how the justices, now swinging the lopsided balance to the conservative side, has already done so.. Below, excerpts from some of my other blog postings March 13 on the subject folded into this new updated post..

 How the Supreme Court has unintentionally contributed to a feared democracy's demise is disturbing for those of us who love our country both when we win politically and when we lose. The three most US Supreme Court acts or inactions in my mind are the Citizens United ruling that permitted dark and secret campaign contributions, the ruling overturning the recent Colorado ballot case that inadvertently gave a permission slip for any failed insurrectionist or civil war participant to run for federal office, plus the Court greenlighting political gerrymandering by declining to restrict it, making legislative compromises nearly impossible and empowering extremists. 

 The recent Colorado ballot decision gave the green light for any candidate who loses a civil war or an insurrection to come back as an elected office and abuse, and sabotage institutions that stood in the wannabe tyrant's way. The  US Supreme Court claimed political gerrymandering was not in their ability to rule, unlike race-based gerrymandering which they could.  In so doing, the Supreme Court permitted the pernicious practice of drawing legislative and congressional district lines to give one or the other political party to carve out safe districts stacked for their party. This, in turn, ensures only the most hardliners and party loyalists get to go to a general election and to avoid being "primaried", the threat most elected officials fear the most.  It is party discipline gone berserk and it ensures compromises are never reached, giving voters in a general election a choice between usually two extreme candidates.

 When in conversations with my European friends and relatives they mention how corrupt our elections system is because of the money pouring into it, making elected officials appear to be for sale to the highest bidder. Once upon a time, I had an answer. Yes, thanks to our election laws, who contributes is public information so it becomes another element contributing to making decisions for whom we vote. That is no longer true. The Citizens United decision changed that by permitting corporations to contribute and to do it in the disguise of supporting some fine-sounding single-cause political action committee. That is the "dark money" reference we hear about.  We no longer have a way to know which piper is playing whose tune.

The recent Supreme Court decision was another serious blow to democracy in the Colorado ballot case. Claiming it was a federal matter, as the court did, was not the problem. What the Court did was to tell Congress they would have to pass laws to enforce the clause. of the 14th Amendment that kept insurrections from running for public office.  Hell will probably freeze over before that happens since Trump would benefit as would any similar power-hungry revolutionist from the left.   Colorado's decision to define Trump as an insurrectionist upheld by the State of Colorado's supreme court decision was left untouched by the US Supreme Court. The original court case was decided with due process to make the case, fairly., that Trump was an insurrectionist in trying to overturn the 2020 election he lost.  In short, the US Supreme Court tossed the ball into a trash can of political self-serving dealing.  It paved the way for anyone (including Trump) to lead a civil war or a more or less obvious insurrection to run for federal office, to be elected to office, and to continue his insurrection by other means, including undermining the institutions that get in his way by only appointing loyalists to him instead of to the rule of law.

The next dastardly anti-democracy, anti-voter rights step by the US Supreme Court would be to uphold in full and in part to agree that all presidents would have immunity from being prosecuted for crimes they commit while in office.  That would clearly be a license to kill opponents and to cheat and steal taxpayer money to feather their own nests of power and wealth.   Be aware of what you wish because what is good for the goose will be for the gander.  If democracy survives a second term of Trump. and wins immunity from being charged with crimes after his term for breaking the law while in office, any other future president from the left or the right will also have that immunity claim and protection.

In the meantime, anyone who tags Trump as an insurrectionist can now point to one court of law that defined him as one after a civil due process trial and appeals: the Colorado Supreme Court. Colorado could not enforce the federal constitutional 14th Amendment, per the US Supreme Court, but anyone who calls Trump an insurrectionist now has a basis in law to attack him with that designation.

The remedies are now left to Congress, to require political districts to be drawn by independent commissions in each state, to reverse those contribution provisions in Citizens United by requiring all political PACs to disclose their contributors and to define who, what, and how the 14th amendment clause concerning insurrectionists are to be enforced. Do not hold your breath. 

Wednesday, March 13, 2024

How the Supreme Court is contributing to democracy's demise

https://www.yahoo.com/news/key-takeaways-from-supreme-court-hearing-on-whether-trump-has-presidential-immunity-that-shields-him-from-criminal-trials-212849131.html       Will the Supreme Court try to slow walk democracy to death?Will history call the Supreme Court not the Roberts Court but the Trump Court? Will the Supreme Court be as just another legislative body like the current House's majority under the fearful spell and control of  Donald Trump? Will it every be viewed again as an objective  ruler on Constitutional issues?  That is the danger the current Supreme Court faces.

 Listening to the hearings and the loaded question the Court's majority ordered the two parties address in advance of the hearings, it was already clear they were trying to ship the question down to the purgatory of the lower court to delay any decision until after the November election.The hearings revealed the tactic.  If successful, the Trump majority would deprive Americans of the critical  information needed to make a rational judgment of the guilt or not of Donald Trump in the attempted January 6 coup and the fake elector's scheme that led to that fateful day. The indictment papers of the Department of Justice special prosecutor are not enough to convince fence sitters when they have to cast a ballot.. The final word should be the from the jury of Trump's peers and whether  voters will ever have a chance to hear both sides of the issue aired in the trial of the century or not before they mark their ballots.

 What it appears to me is that the Trump Court majority is attempting to bury the coup case and keep it from the eyes of public who need the information to make a rational decision.  Trump himself is not only trying to divert attention from the relevant case that could likely judge him a criminal  and with evidence exposed to the public in the middle of the campaign, but also to give himself cover for committing crimes if he ever gets into the White House again. That is the travesty being committed by  the Trump justices on Trump's behalf that is happening before our very eyes.

What was asked of the Court by Jack Smith was a simple question: Does Donald Trump have absolute immunity as Trump had  claimed in his defense or not in this particular case. What we saw were three Trump loyal justices quibbling over hypothetical theories that any president in the future would have immunity while doing "official acts,".  They rudely cut short any attempt by non-Trump justices to apply their decision to the case at hand.  It was a Trump supporting campaign tactic, not a Court considering the Constituional relevance or application.  

What happened in the Justice's question period is that one of their own conservative justices, a Trump appointee,Amay Coney Barette brought the hearing down to the earth to consider the  actual case before them. She  read off some of key charges in Smith's case and asked whether these were public or private acts..What Trump attorneys had to admit they were nearly all private acts.If that's the case,  why quibble over the public vs private debate when it is virtually irrelevant to this particular case? The obvious answer, it will delay the chance the public will ever get a jury verdict or hear the elements before the November election by referring their 'questions" back to the appeals court.

 Criminal acts can be committed while doing public acts and private one and the president does not have immunity in either case. In fact,what separates whether any act is a crime depends of the prosecutor proving defendants intent to break the law,, not whether it is done in an official capacity or a private one. In short, while committing an official act, a crime can also be committed. There is or should be no cover to commit a crime by calling it 'official act".  But I am not a lawyer, just a lay person, but I sense that there is a partisan tactic to muddy the waters and delay, delay any jury hearing the case and deciding guilt or innocence. . What is forgotten in the quibbling is that for a defendant to be found guilty  crimes mustof a crime, the test is not whether it was a public or private act,but a jury needs to find proof beyond a reasonable doubt that there was  proof of  intent to break the law,  whether or not  it was committed while doing an official act or a private one.  

This April 26  hearing  about a specific, historic case, it is not the only an example of  how a Supreme Court could contribute to democracy's demise., but there are examples of how it has already done so.. Below, excerpts from some of my other blog postings on the subject.

 How the Supreme Court has unintentionally contributed to a feared democracy's demise is disturbing for those of us who love our country both when we win politically and when we lose. The three most US Supreme Court acts or inactions in my mind are the Citizens United ruling that permitted dark and secret campaign contributions, the ruling overturning the recent Colorado ballot case that inadvertently gave a permission slip for any failed insurrectionist or civil war participant to run for federal office, plus the Court greenlighting political gerrymandering by declining to restrict it, making legislative compromises nearly impossible and empowering extremists. 

 The recent Colorado ballot decision gave the green light for any candidate who loses a civil war or an insurrection to come back as an elected office and abuse, and sabotage institutions that stood in the wannabe tyrant's way. The  US Supreme Court claimed political gerrymandering was not in their ability to rule, unlike race-based gerrymandering which they could.  In so doing, the Supreme Court permitted the pernicious practice of drawing legislative and congressional district lines to give one or the other political party to carve out safe districts stacked for their party. This, in turn, ensures only the most hardliners and party loyalists get to go to a general election and to avoid being "primaried", the threat most elected officials fear the most.  It is party discipline gone berserk and it ensures compromises are never reached, giving voters in a general election a choice between usually two extreme candidates.

 When in conversations with my European friends and relatives they mention how corrupt our elections system is because of the money pouring into it, making elected officials appear to be for sale to the highest bidder. Once upon a time, I had an answer. Yes, thanks to our election laws, who contributes is public information so it becomes another element contributing to making decisions for whom we vote. That is no longer true. The Citizens United decision changed that by permitting corporations to contribute and to do it in the disguise of supporting some fine-sounding single-cause political action committee. That is the "dark money" reference we hear about.  We no longer have a way to know which piper is playing whose tune.

The recent Supreme Court decision was another serious blow to democracy in the Colorado ballot case. Claiming it was a federal matter, as the court did, was not the problem. What the Court did was to tell Congress they would have to pass laws to enforce the clause. of the 14th Amendment that kept insurrections from running for public office.  Hell will probably freeze over before that happens since Trump would benefit as would any similar power-hungry revolutionist from the left.   Colorado's decision to define Trump as an insurrectionist upheld by the State of Colorado's supreme court decision was left untouched by the US Supreme Court. The original court case was decided with due process to make the case, fairly., that Trump was an insurrectionist in trying to overturn the 2020 election he lost.  In short, the US Supreme Court tossed the ball into a trash can of political self-serving dealing.  It paved the way for anyone (including Trump) to lead a civil war or a more or less obvious insurrection to run for federal office, to be elected to office, and to continue his insurrection by other means, including undermining the institutions that get in his way by only appointing loyalists to him instead of to the rule of law.

The next dastardly anti-democracy, anti-voter rights step by the US Supreme Court would be to uphold in full and in part to agree that all presidents would have immunity from being prosecuted for crimes they commit while in office.  That would clearly be a license to kill opponents and to cheat and steal taxpayer money to feather their own nests of power and wealth.   Be aware of what you wish because what is good for the goose will be for the gander.  If democracy survives a second term of Trump. and wins immunity from being charged with crimes after his term for breaking the law while in office, any other future president from the left or the right will also have that immunity claim and protection.

In the meantime, anyone who tags Trump as an insurrectionist can now point to one court of law that defined him as one after a civil due process trial and appeals: the Colorado Supreme Court. Colorado could not enforce the federal constitutional 14th Amendment, per the US Supreme Court, but anyone who calls Trump an insurrectionist now has a basis in law to attack him with that designation.

The remedies are now left to Congress, to require political districts to be drawn by independent commissions in each state, to reverse those contribution provisions in Citizens United by requiring all political PACs to disclose their contributors and to define who, what, and how the 14th amendment clause concerning insurrectionists are to be enforced. Do not hold your breath. 

Thursday, February 22, 2024

Splitting hairs. A basic question: did Trump commit an insurrection? Updated 1 14 2025

Update: 1 14 2025

Read Jack Smith's report on Trump's election interference cases 

Five takeaways from report on Trump's alleged 2020 election interference

Continuing with thee original post. The Supreme Court ruling, the question of Colorado's Supreme Court finding that in the civil trial, Trump did commit insurrection , was left untouched. https://www.cnbc.com/2024/03/04/supreme-court-rules-in-trump-colorado-ballot-case.html It only focused on whether one state could determine the outcome should be a  federal matter with Congress writing a law. Splitting hairs in definitions are often the meat and potatoes of prosecutions and courtroom haggling but they also are a weapon of political arguments.  One question that deserved attention on a private Facebook group that interfaces the many sides of political discussion was if why the January 6 mob and even Jack Smith's indictment of Trump who were charged with a crime were not charged with insurrection, but interfering with an official process or vandalism or other charges.  So the left was wrong, it follows, to call Trump an insurrectionist, and therefore he is not guilty of a crime that could, if found guilty, put him in jail or some other penalty like home detention or less.  What they overlook, is that there are other criminal statutes involved easier to prove beyond a reasonable doubt which could land him in jail or other punishments.  Outside the courtrooms, both sides can still be right at the same time: Trump is and is not an insurrectionist. It is an opinion to shape other opinions, but it is not yet a legal finding with one exception. Colorado's state justice system from lower to highest court did not disagree with that part of a civil suit brought by Republicans and independents attempting to keep Trump off the ballot. Update: https://www.forbes.com/sites/alisondurkee/2024/03/04/trump-can-stay-on-colorado-ballot-supreme-court-rules/?  In their ruling, the court did not rule not on the substance of whether Trump had committed an insurrection but on the power of a state to enforce the rule. It is a federal matter that needs legislation from Congress to clarify how to execute the removal and when under the 14th Amendment.  This was not a surprise and the issue is now clarified. Trump's name was never taken off the Colorado ballot nor will it be because the Colorado Secretary of State said she would abide with the SCOTUS ruling.  The insurrection issue was a civil finding that Trump did participate in the Colorado case. SCOTUS did not touch that. The key decision remaining is the Coourt ruling on Trump's immunity from criminal prosecution.  This cannot be avoided. It is key to the preservation of democracy.  The way SCOTUS set up its approach left the room it appears that Trump could have immunity from "some" acts on the perimeter. That would be a disaster if the Court ruled Trump had some protection because of immunity; he would be above the law exempted by a definition that split hairs.  Either he is immune or he is not. There should be no loopholes. Politically, Biden's team would rather take on Trump than Haley, so it is becoming even clearer it will be an oldie but goodie v an oldie but dangerous and scary..

The only body so far to rule on the term insurrection after a trial and hearing evidence in a court of law found that an insurrection had occurred was the Colorado case, a civil suit to keep Trump off a ballot per the 14th Amendment.. In appeals to the Colorado Supreme Court. the state supreme court agreed on whether there was an insurrection and Trump either led it or provided aid and comfort, but it will probably fail in the appeal to  Trump's biased Supreme Court on a totally unrelated issue that such interpretations and enforcement should be enforced at the federal level, not at the state level. We will soon get their ruling. The strongest argument made by the Trump team is that one state should not determine what other states rule in an election process and qualifications for president. Supreme Courts usually do not rule on whether the facts were faulty, but how the theory that sets the precedent of how the state acted affected the rest of the other states or other individuals or was or not relevant to the laws as written, were unconstitutional, and /or were in harmony with precedents set by other court rulings.

From a reply to the question raised by a Trump supporter on the private Facebook site is a little more complex and more in the weeds, but a good question was raised that required serious consideration. :Was there an insurrection or not and can the participants in January 6 be called insurrectionists and was that an insurrection or just a riot. Both being a riot and an insurrection could also be true. The riot was the weapon used as part of the insurrection plot.  Until it is litigated in court, both sides can give their opinions on media with some reasons. It has been litigated only once, in Colorado, in the attempt to DQ Trump from the ballot under the 14th Amendment provisions. if the Supreme Court does not address that issue per se, those claiming Jan. 6 was an insurrection can continue to do so with even stronger justification. Jack Smith's January 6 case, if held before the November elections, could make the question unanswered also and he is not using the word insurrection, either. He is charging Trump with" conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The indictment was issued by a grand jury ..." (Google summary) 

https://abcnews.go.com/US/latest-federal-charges-donald-trump/story?id=101918701#:~:text=Trump%20has%20been%20charged%20with,determined%20to%20remain%20in%20power.

From my FB posting today. Treason can only be charged in wartime. Insurrection is the non-wartime equivalent. The mob on January 6 was summoned to Washington by Trump or his lieutenants in on the conspiracy / for a wild time and were the tool and a weapon of masterminds of overturning the 2020 election. They were only part of the scheme and were connected to the false elector scheme to force or scare or threaten the VP to not certify the election contrary to the provisions of the Constitution. Whatever you split hairs on definitions, the whole scheme and the tools have "done wrong" and attempted to defy the Constitution. The victim in this was the official process that would have resulted in stealing the election from those who were in both the popular vote majority and the electoral college when the leader of this knew it was a lie about enough fraud committed. The Jack Smith testimony, a criminal process, will dwell heavily on all those around Trump that he lost and Trump's intent was to intentionally commit the criminal deed. . Just because prosecutors did not charge the militia heads with insurrection, does not mean that they did not commit it but that to achieve the goal, they may choose to prosecute the prime mover,s or the head of the snake...in this case Donald Trump. . Look at it as in mafia prosecutions that begin with charging the guy who strangled someone with murder, but not the head of the mafia with the murder who orchestrated the conspiracy. They used other legal tools to put the head of the crime family behind bars to achieve the goal of breaking up the crime family's criminal acts. Prosecutors have a choice of picking their battles and picking the easiest charges to make and they either go after the head of the snake as Jack Smith chose to do in his charges re: January 6 levied against one perp, Trump, or they go after all those who were part of the conspiracy to commit an insurrection as the RICO case in Georgia is attempting.. Just because the rioters were not charged with insurrection does not mean they did not commit insurrection and other prosecution tools addressed exact acts, vandalism, and interfering with an official government procedure. The only body so far to rule on the term insurrection after a trial and hearing evidence in a court of law found that an insurrection had occurred was the Colorado case. In appeals to the Colorado Supreme Court agreed, but it will probably fail in Trump's biased Supreme Court on a totally unrelated issue that it should be enforced at the federal level, not at the state level. One state should not determine what other states rule in the case. Supreme Courts do not rule on whether the facts were faulty, but how the theory that sets the precedent of how the state acted that affected the rest of the states ruled on the facts.


Prosecutorial discretion in white-collar crimes can indeed be motivated by political considerations, but it is more likely to be motivated by whether prosecutors have a near certainty of a win in court (there is more than smoke; there is fire) and whether the issue affects a large number of potential and real victims unfairly treated and are the victims.  The worst example possible of abuse and weaponization of a prosecutor's office that deviates from any of this is Trump's promise to prosecute his political enemies not loyal to him as he seeks revenge and retribution regardless of the merits, the rule of law,  evidence, or impact on anyone except himself and his political power. The threat alone of prosecution is an effective tool of governing by fear of repercussions from not being loyal to the dear leader.    That Trump whines he is the victim of that kind of prosecution is his way of denying any public evidence to the contrary,   indictments by a grand jury (whose job is to see if there is fire, not just smoke), or investigative reports. If he thinks he will lose in court, he will deny justice, delay, delay, delay until he can pardon himself when he regains the Oval Office.  The more you see him delay, delay, delay,  the more he understands he would lose in a court of law if the trial was ever held.  In its way, it is his admission of guilt. Facts count in courts, if not in social or Trump-friendly cable channels.

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A personal note: I am not an attorney, but I did spend 7 years as director of an investigative and prosecution unit in the district attorney's office on consumer fraud and white-collar crime that had both criminal and civil authority. Prosecutors assigned to the unit made the decisions about whether or whether or not to pursue a case or not and why. Prosecutorial discretion in white-collar crimes or civil frauds depended upon the kind of proof and whether there was likely a chance prosecutors would win in court and if the law was broken that had had many victims. It also would serve as a warning to other wannabe fraudsters not to even try these practices. 

Sunday, November 5, 2023

A warning to Democrats: if courts decide to DQ Trump, then what

The Colorado case now before a judge will likely go to the Supreme Court. If the court knocks Trump off the ballot, we are in a whole new ballgame, and Democrats had better get prepared for that now. Even if Trump is not on the ballot, electing Democrats means the continuation of popular public policies and democracy as we have known it. That is true whether the government is led by Biden or Harris and Democrats elected to federal, state, and local positions and legislatures.


I am not an attorney, but I have been on a jury, so let me play a skeptic and ask the question from a juror's standpoint.: Was January 6 and the Big Lie an insurrection or not. That is basic. If it was, then the next is whether Trump fit into the 14th Amendment and its intent.
Common sense seems yes to both. What are the chances the Supreme Court will agree? The newest three conservative justices were indeed Trump appointees, but they were on his list because they had the stamp of approval of the Federalist Society. When Federalist lawyers think the Colorado case has merit, that is attention grabbing.

When lawyers argue, they look for technicalities and case law...and we will get a lot of that, guaranteed to sow confusion and public opinion dismissing the charges that it is just dirty politics. So far as Democrats are concerned, we would like to run against Trump and see that as an advantage to Democrats. So far as Biden is concerned., Anti Trump offsets Biden's appearance of being too old. However, if this issue makes it to the Supreme Court and knocks Trump off the ballot, we will be in another ballgame. Let us say it is Niki Haley, who truly I think would be a challenge to Biden....or maybe Biden decides to pull out because the only reason he ran for president was to stop racist fascist Trump...and his mission has been accomplished. What then? Democrats are still faced with turning the House blue and winning down-ballot races for State House and state legislatures...and even to the county official level. Democrats had better run a two-pronged race now...assume it is possible Trump is DQ'd...and give equal focus to both the race for the White House and any GOP down-ballot races. Where Dems have been asleep at the wheel in the past, there is not enough focus on state house and legislative races and even county clerks. It resulted in disastrous political gerrymandering and voter suppression, and losing issues like Abortion state by state and taxing the rich more or less. Demorats cannot afford to be asleep at the wheel again..The story below quotes Federalist scholars as thinking this Colorado suit will stand.


'Abundant evidence' shows Trump engaged in insurrection and cannot hold office: conservative scholars


One large group is mired in nihilism and wishes for another candidate. It is Generation Z and X. For the cynical youth vote paralyzed with " a plague on all your houses," they need to ask themselves if they want to support science deniers, crippling student debt, restrict the choice of health care and control their reproductive lives, rampant misogyny, racism, and homophobia. Take this advice from grandma who has been there, done that.. Electing MAGA candidates would just make all of this awfulness worse and make it powerless to do much about it. At least Biden and those who support him oppose those policies and have delivered some tangible results.. Sitting on their hands and longing for someone younger to run is the same as supporting those MAGA candidates, not just Trump, who personify those policies harming younger voters and their values. In 2024, the vote count still matters since we still have our democracy, and non-votes do not get counted. Duh. To paraphrase Ben Franklin, we still have a democracy, and so far, we have kept it. What you do still matters..It is not just a matter of casting your vote, but it also is voicing this to peers on social media or in everyday conversations.

 

Saturday, November 24, 2018

The president who would be king

A version of this was published in the Sky Hi News  November 27-28,2018

If there was one reason  the Mayflower was the first of many similar  boatloads full of settlers who sailed across the Atlantic, it  was to escape the tyranny of a government and especially the English King. President Trump has never understood why he cannot rule by decree and executive orders like the  kings and dictators he so admires  and why the judiciary, Congress and law enforcement cannot be put to use  to advance and protect his power and agenda. He tweeted and verbalized an assertion last week that “the judiciary is the greatest threat to our country”, insinuating his edicts were necessary to protect the US from threats to national security.
 He has attacked one  of the key foundations of  American democracy, an independent judiciary.  After a record attempt by the Republican controlled Senate to fast track,  to change the rules so fewer votes were needed to confirm  judges’ appointments,  and to pack the courts with conservative think tank recommended nominees,  including two vacancies on the Supreme Court, it was just not enough for him.  His view of the courts appears to be  all judges should be loyal to him and his  particular  view of executive authority.  That  is the ultimate expression of his desire to make this country ruled by him, not by the rule of law. The threat of an independent judiciary is  not a threat to the country. It is a threat to the power of the wannabe king himself.
Trump has seen some of his executive orders struck down by a judiciary that is sworn  to protect the Constitution. Particularly obnoxious to him is the Ninth Circuit Court of Appeals. The infamous Muslim ban was rejected by that court on the basis that it was discriminatory against practitioners of a religion.  After some revisions, it was retitled and changed to ban and permit enhanced extreme vetting of   those who came from specific countries that  may harbor terrorists.  Thrown into the list were a few non Muslim countries. It was a sleight of hand that finally enabled the executive order  to be approved by the Supreme Court on a 5 to 4 decision in June, 2018.
  Trump’s campaign  in the 2018 midterms centered around  hyping  fear and loathing of immigrants of color. To cater to  his nationalist  core followers, he devised a  strategy to  stop“caravans” of migrants seeking asylum in the US . The caravan travellers, equal to  the same number of students of two large high schools , were  comprised of mostly women  and children migrants he called “thugs” and disease ridden. The fear of these migrants was raised to near hysteria by his favored media outlets just before the midterm elections.  US military intelligence had reported the caravans did not  threaten national security, but nonetheless Trump  rushed more US troops to the border than we have in Afghanistan. A week before the midterms he announced a plan for an executive order that would rewrite the 14th Amendment to end birthright citizenship. That has not yet been  court tested.  He followed that strategy  up with an  executive order forbidding those who reached US soil illegally  to qualify for asylum only if they got in line and went through a legal checkpoint. The U.S. Judge  in the Ninth  Circuit ruled November 19 that federal law clearly states that migrants can seek asylum anywhere on U.S. soil  and … “he  (Trump) may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden” . Trump called foul and said  that Judge was an Obama appointee. Supreme Court Chief Justice John Roberts responded in defense of an independent judiciary: "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

An independent judiciary is fundamental to a democracy and to the Constitution's ability to keep abuse of power to protect us from a one person rule..This posting is a focus on one issue, but the issue is one of the three checks and balances pillars written into the Constitution to restrict the power of the federal government...and especially the executive branch and the legislative branch from abusing their powers. . Therefore it is fundamental to democracy. When wannabe tyrants want to grab total control of the reins of government, they wreck an independent judiciary. The most recent example of that is in Turkey where voters approved his consolidation of three branches of government into one and permitted him to appoint all judges without any constraints. What is disturbing is that it was done with their people's permission, which shows how fragile democracy is. It is an idea but is only as good as the people who support it. From Hitler to Putin to Erdogan, all used fear and hatred of ethnic groups (Jews) (terrorists) , or a government and economy in chaos (Putin) . With control of all the levers of government in one hand, any opposition cannot gather enough strength to cause a reversion to democracy peacefully without violence, putsch, war, or revolution.

https://www.washingtonpost.com/local/immigration/judges-ruling-means-trump-administration-must-allow-illegal-border-crossers-to-seek-asylum/2018/11/20/

https://reason.com/blog/2018/11/05/report-pentagon-says-migrant-caravan-doe

https://www.npr.org/2018/10/30/662043904/trump-says-he-will-void-birthright-citizenship-law-through-executive-order

https://www.cnn.com/2017/04/15/europe/turkey-erdogan-referendum-politics/index.html

Wednesday, October 31, 2018

The rule of law trumps the rule of a ruler: USA 101

A version of this appeared in the e and print editions of the Sky Hi News November 7, 2018 and on line November 8.

 https://www.skyhinews.com/news/opinion/opinion-usa-101-the-rule-of-law-trumps-the-rule-of-the-ruler/

The morning after November 6:  Still sitting in the Oval Office is a president who views laws as a barrier to his power, a challenge  to get around them or  claim he can bend the rule of law to his benefit. He brought with him to the White House this scofflaw attitude,  rooted  in his business experience. His midterm election promise to reverse the 14th Amendment is only one case in point. (added later November 7 A crisis is being engineered by Donald Trump to impede the Mueller investigation by appointing a yes man flunky on record to criticizing Mueller acting in place  of fired Jeff Sessions This is a direct result of Trump holding onto the Senate...By doing so, Trump has insulated himself against impeachment and can operate with all of the arrogance, retribution, and abuse of power he thinks he has...rule of law be damned. This is a third finger raised against Mueller and democracy. It is also one more element in building an obstruction of justice case  against Trump Mueller could use if Trump's appointee takes action to rein in Mueller.  A constitutional crisis is just beginning.  Expect Trump to take advantage of the lame duck session to get away with whatever he can before the newly blue majority  House is sworn in.  )

Throughout his life as an heir to a fortune which he nurtured into a greater fortune with a family run real estate  enterprise, Donald Trump  only needed  his  simple command to rule his business. Any challengers were to be hit back harder than they hurt him. For him, as expressed in interviews , fear is his power.  His reputation was not good  in the real estate field, already filled with con artists and puffing sales people and he shrugged off  a long list of suits and bankruptcies as  just another cost of doing business.  He survived claims of fraud and misdeeds   by  settling  disputes with money, as he did in the Trump University case or his problem with infidelities and abusive  behavior with women.
When he became  president, he tried  to run the White House with the same attitudes and ethics  as he had run his business. His TV reality show and real estate hawker mentality, his frequently uttered lies and exaggerations  continued. He arose to political power by leading causes like birtherism, claiming Obama was an illegitimate president because he was born in Kenya, contrary to overwhelming evidence.  This  appealed to many  who resented that  their preservation of ethnic and racial power was constrained by the rule of  law, political correctness (AKA civility),  and the Constitution. Later he was claiming he was above the law because of his position as president. He asserted  he could not be subpoenaed to testify  in a criminal case and he could pardon himself.
 He  has made promises that would challenge the very supremacy of the Constitution.  In a last minute midterm election promise, Donald Trump said he would sign an executive order to overturn the 14th Amendment. It guaranteed a  person’s  children born  or naturalized in the US  would be  US citizens.  With a stroke of a pen signing an executive order, he proposed to change the constitution. He would destroy this odious  birthright citizenship. It was obviously a promise made to appeal to his white nationalist base. If he had the power to change the Constitution by executive order,  then he could also  take action against his critics, the enemies of the people, the free press,  and  keep on going, until the rule of law, the Constitution, was not worth the parchment on which it was written. To keep some wannabe despot,   king , or dictator from altering that fundamental  document from which all laws flowed, the Constitution made itself very difficult to be amended, fortunately for democracy.    “Amendments must be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.”
Subject to interpretation, the application of some Constitutional provisions are  altered. However, the 14th is one of the most unambiguous amendments ever written.    “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” He was trying to pull off another  con, counting on  the ignorance of his devout followers.

https://www.pbs.org/newshour/politics/trump-says-maybe-u-s-will-have-a-president-for-life-someday

Sunday, October 11, 2015

The rule of secular law is the law of the land

The rule of secular law

As  a former county clerk myself, the county clerk  who refused to issue marriage licenses to same sex couples because it violated her religious beliefs, got me thinking about the differences between a country ruled by laws that were secular, not connected with religious or spiritual matters, and a country ruled by an official state religion. The U.S. is governed by secular laws.

 

 That issue, secular vs religious rule,  dominated debates in  American history  among and within the colonies, but it became one of the compromises expressed in the First Amendment when the Constitution was formulated and ratified. It  forbad Congress from establishing a state religion and protected freedom to practice one’s own religion.

 

 Our founding fathers were influenced by  their bitter experience with persecution under the English kings who also served as the religious rulers by divine right and  the divisive practices of some colonies , such as the Puritans of Massachusetts who substituted persecution justified by one religious belief with another just as cruel.
In modern times the issue of separation of church and state has been the subject of many a US Supreme Court rulings.  Sometimes other Constitutional provisions such as the 14th Amendment that established the right of equal protection under the law seem to conflict with the First Amendment.  The Supreme Court is the arbiter that resolves those conflicts and they ruled in 2014 that equal protections trumped  laws in  those states that had passed laws motivated by religious beliefs of their majority forbidding same sex marriage.
 A key to a stable, successful democracy is a  rule of secular  law that protects minority interests.  Failure to do so has hobbled many wannabe democracies .The tension within secular states vs Islamist advocates of Sharia law , the religious laws derived from interpretations of the Koran, have played out in the Arab Spring .  In Egypt ,deposed President Mubarek’s secular law was replaced by the Muslim Brotherhood’s Sharia type laws that resulted in persecution of Christians and others, followed by  a military coup that re-established secular law.  In Turkey, a government tried to replace  the secular laws of Ataturk (founder of modern Turkey) with more Islamist ones.  The result has been many demonstrations, bombings and unrest, attempted power grabs,  and changes in leadership.  The Nobel peace prize was just awarded to a group in Tunisia who hammered out a compromise between Islamists and secularists, though the country is  still a home to many Islamic extremists.
 Most American elected and appointed officials swear on a Bible to uphold the laws of the land which are secular.      Kentucky  clerk, Kim Davis,  refused  to  issue marriage licenses to same sex couples because  she was acting because of her religious beliefs that  forbad her to do so.  Her action  resulted in jail time for contempt of court. 
Another Kentucky clerk opined : " Why take away the majority's right [just] to give the minority their rights?” Send her back to school for civics lessons.  The First and 14th amendment protects minority rights from being trampled by the majority ,  but they are not enforced under the authority of state sponsored religion but under the authority of the secular  Constitution.

Felicia Muftic served as Denver County Clerk from 1983-1991.
A version of this appeared in the www.skyhidailynews.com  October 23, 2015

 For sources tapped for the column visit www.mufticforumblog.blogspot.com and  also visit the posting: Freedom of religion, a right so often misunderstood

 Bowman, Brad (September 2, 2015). "Defiant county clerks standing ground on gay marriage issue". The State Journal (Frankfort, KY).













Wednesday, January 9, 2013

Warning to the GOP: don't overplay your hand in the March fiscal cliff

In the winter of 1995-1996 there was a death with repercussions lasting a decade. The deceased was the Newt Gingrich Republican Revolution.

It was a self-inflicted wound. The weapon used to commit suicide was the shutting down of government for days, used as a GOP bludgeon in arguments over the budget. So angered were the voters that in the next election cycle, Bill Clinton was re-elected easily.

In 2011, the GOP used the debt ceiling as a bargaining chip again and the economy took a measurable dip. In 2013, the debt ceiling, continuation of the resolution to fund government, sequestered spending cuts, and raising the debt limit unite in a perfect storm of entangled issues in March. The GOP should know from past experience if they overplay their hand, they risk a public backfire and a dent in economic growth.

The compromise avoiding the fiscal cliff on Jan. 2, also delayed debate on sequestered spending cuts for 60 days. The GOP is threatening to use disapproval of raising the debt limit and shutting down government as bargaining chips to get their way. They think they have a hot one, too. Hot, indeed.

What they may have done is set up the possibility of some of the most important Supreme Court decisions of the past 125 years, addressing the fundamental question of the separation of powers. Just how far does the GOP want to take their “leverage?” Are we now headed for a constitutional crisis, too? Do they really want to default on our loans if we do not raise the debt ceiling and imperil the economy to get their way over the debt ceiling? A wiser Newt Gingrich called this strategy a “dead loser” last week. Or is this just more brinkmanship bluffing?

While not precluding reduction in spending or more revenue enhancement, the president made it clear in remarks Jan. 2 he would not allow the GOP to use the debt ceiling to get their way on future spending cuts. The president staked his legal claim that Congress voted for the expenditures and he had the obligation to pay bills as they came due. That is indeed a major constitutional issue the Supreme Court could decide: Can Congress keep him from his duty as the executive branch to pay bills Congress had already authorized?

The president could also choose to tap the 14th Amendment, daring the GOP sue him and throw the issue to the Supreme Court. The president could continue to make good on payments on bonds (treasury notes) even if Congress forbids him from doing it. At issue is the 14th Amendment to the Constitution regarding the executive's power to pay bonds as they came due. Legal experts are divided so the outcome could be risky for both parties.

The question is not whether the debt problem should be tackled: Both the GOP and the Democrats know it must happen to avoid a credit rating downgrade or future economic problems. The issue is how. That “entitlements” need trimming is also acknowledged by both sides of the aisle and the Pentagon budget also needs close scrutiny. It is a matter of coming up with ways acceptable to a bipartisan coalition large enough to get it through Congress.

The GOP is laboring under a questionable belief they have the public mandate because they were re-elected to be the majority in the House. Some 2011 gerrymandering resulting in more safe districts for conservatives may have been greater factors. Public opinion polls in November 2012 showed more than 60 percent supporting balanced taxing and cuts. Public opinion also counted in the mid-90s when the GOP shut down government and the Republicans paid the price in the next election.



This is my column that appeared in the www.skyhidailynews.com today

For more, go to  www.mufticforumespanol.blogspot.com