I am so sorry it has taken me so long to get this latest blog out. A few weeks ago, I was going to write about the student loan forgiveness. And then there was Google’s Gemini (AI) debacle. Then there was the 9-0 SCOTUS decision regarding disqualifying a presidential candidate at the state level. And then there was Super Tuesday and Nikki Haley getting out of the race. And no. I’m not going to touch the State of the Union address.
Let’s settle on the Supreme Court for a minute. In June of 2023, the U.S. Supreme Court ruled that the White House did not have the legitimate authority (constitutionally) to forgive student loans or send money to individuals that was not appropriated by Congress. Yet, here we are seven-eight months later, and the White House has decided to ignore the ruling and do whatever it wants for whatever reasons it wishes. (There are theories on why the administration has ignored this ruling, but that is not the point of today’s missive. The fact the White House went against the ruling is.)
It is grade school civics to understand that the legislative branch writes the laws (appropriates funds), the executive branch executes, or implements, or enforces the laws (and spends the money), and the judicial branch “interprets the laws” (applies the law to criminal cases and civil disputes) while the Supreme Court of the United States also adjudicates conflicts between the various other parts of government – and differences between states and states’ laws).
The executive branch has been spending loads of money that has been appropriated by Congress (and many Americans are not happy about that). But it has also been spending loads of money that has not been appropriated by Congress.
Likewise, there are immigration policies that were written by the legislative branch that the executive branch…is not enforcing.
Lately, the judicial branch (federal, state and local levels) has been interpreting laws in unprecedented ways…for whatever reasons they desire. Again, whether we are discussing the cases against Donald Trump or against J6ers, or against protestors, or against violent criminals, etc., we have been watching the judiciary abandon justice and equality under the law in favor of politicization or weaponization of the court system.
Instead of applying the law to disputes and crimes, lower courts have been re-interpreting laws in unprecedented ways so they can “apply” the law in very specific ways never before attempted…for whatever reasons (again, the topic today is not theories on such reasons, just the acknowledgment that they are doing this).
Meanwhile, the SCOTUS is actually doing its job. Surprisingly, actually, and maybe not in the way you are thinking.
Many Americans are focused on the most recent 9-0 decision because it means Colorado nor Maine (nor any of the other states where challenges to Trump's candidacy have been raised) can keep Donald Trump off the ballot this year.
Supporters of this decision also see it as a “win” against the notion that any insurrection occurred (at least not at President Trump’s direction).
There are a couple of things that are troubling with this optimistic take. (1) It actually did not rule on anything related to the idea of “insurrection” and (2) it set up the constitutional justification to nationalize the presidential election.
Lesson: Just because someone likes the ruling and believes it favors “their side” in the moment, one must be careful not to miss how such a ruling can actually take away freedom in the future. (I feel like I should spend more time on this lesson, but...)
I feel the same way about this 9-0 decision as I did about the 6-3 Dobbs decision in 2022. Pro-life people were celebrating the decision and more conservative states moved quickly toward abortion bans and heartbeat bills, etc., and have since touted “how many lives have been saved.”
And I do believe in the value of human life, so I am not begrudging their position, but…although I believe the SCOTUS ruled correctly in Dobbs, its decision was based on constitutional principles alone – not on the superiority of natural law, which opened the path not only for legalized infanticide, but for a legitimate argument by the pro-abortion side about how important state and local elections are and thus gave them the opportunity to make the 2024 elections all about abortion and possibly turn many traditionally “red” counties and states “blue” based on this single topic whereas the focus for this hot-button issue was traditionally reserved for offices and candidates serving in D.C.
Because Nikki Haley was right. The decision has been made and now that it has been sent back to the states, it really doesn’t matter what the president thinks of the abortion issue/debate – at least not until it comes to appointing another justice to the Supreme Court.
Except…we are living in a post-constitutional America.
The executive branch is not enforcing laws, but ignoring them and creating orders with the force of law – that none of our supposed representatives had to even examine or go on record voting for.
And the legislative branch is not checking this power – nor balancing it. Instead of the legislative branch working in its own best interests to increase its power and limit the power of the executive (that’s how checks and balances works), the members of Congress are (1) operating under allegiances to political party (not to their branch of government, nor to their constituents) and (2) working to consolidate more powers under the “federal” government by nationalizing policy and arguing that their political party is the one that will solve all the problems of the country if you just give them enough power.
This is why not everyone should be celebrating the 9-0 Anderson decision. The argument made in the concurring opinion is that this is an area within society in which there is no governing national law, and maybe there should be.
Even though the constitution is fairly clear that it really is up to the state to determine all election law, in this unprecedented move for a national election, the Supreme Court did not want to be the one to set that precedent, so they skirted it altogether, a very apolitical action, which is how they were designed to be. They don’t want to rule on this until there is an actual question of law.
So this was a call for a national law regarding state election law, which would weaken the power of the states in our constitutional federal republic.
State power is, for the moment, “safe,” however, because the concurrent opinion also indicated that due to the divided Congress, no such law could get on the books in time for the 2024 election – and this move by these states only happened because it looks like a specific person is going to end up being the GOP nominee.
Although the decision signals an understanding of the desire to consolidate power in D.C., it also provides a glimmer of hope…because it is a 9-0 decision, signaling that there is an understanding of whose “team” the justices belong on, and it doesn’t have anything to do with political party.
If you recall, back in 2021, there was a huge call for “packing the court” once the Senate and White House were controlled by a single party. But that clamoring disappeared when the nine members of the Supreme Court signaled that they were not going to have their power diminished on the altar of political party or opinion.
How did they signal such a thing? Well, while 9-0 decisions are not rare, they do tend to appear on less divisive issues (so they rarely make the news). This changed in 2021, where 9-0 decisions were at an all-time high and included issues (like limiting the power of administrative agencies) where justices typically do divide down ideological lines.
The justices did not want their individual power – or the power of their position – or of their particular “branch” to be diminished by the actions of Congress or the White House. They are the last “federal” branch to indicate they are unwilling to bow to the other branches as long as they agree with the ideology currently in power.
That being said. The other lesson here is that in the end, it really doesn’t matter what the Supreme Court decides. They don’t have the purse. They don’t have the gun. They don’t write laws. They don’t enforce laws. All they have is their legitimacy. And though according to some they have recently been demonstrating their legitimacy, it flies in the face of the rest of the post-constitutional government we now have.
The president is spending money not allocated by Congress.
The president is not enforcing existing policies/laws passed by Congress.
The president is disregarding Supreme Court decisions.
And because members of Congress are more interested power and party than the good of the American people (whom they supposedly represent) – and they don’t have the power of enforcement (which belongs to the executive branch), they are not holding members of the executive branch accountable for the crimes, corruption, and overreach for which there is ample evidence.
Not to mention, no one is holding members of Congress accountable either…so…maybe there is some balance occurring – but no “checking” of power…in essence, “We’ll ignore your corruption, if you ignore ours, and we can all get rich and powerful together!”
So what happens if more and more SCOTUS decisions are ignored?
What happens if the politicization of the the lower courts is not reined in?
What happens if laws are not enforced?
What happens when equality under the law has been sacrificed on the altar of political party and ideology?
What happens if powerful people are not held accountable?
What happens when state laws differentiating aspects of American culture and providing choice about values and policy are supplanted by national laws?
What happens when no one in D.C. is representing the best interests of their constituents back home?
What happens when we are no longer a constitutional federal republic?
Just some things to think about until next week...
Other Business:
Our next Freedom Academy Zoom Session will be Tuesday, March 19, at 8PM (eastern). The link to join can be found here. And an email with the same link will go out to all subscribers the day before (Monday) announcing the topic. As I’ve taken down the Registration page (it is under construction), you can instead reply to the email to let me know if you intend to attend (and I will then include you on yet another email with the link the night of the session).
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