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  • What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

President Biden has been evading several court orders to implement the nation’s “Remain in Mexico” policy without consequence other than Republicans complaining about it on cable talk programs. Biden’s policy decisions result in an open southern border that allows millions of immigrants to enter our country illegally, including drug smugglers, sex traffickers, and terrorists. The dispute is now before the U.S. Supreme Court. However, the potentially traumatic constitutional part of the controversy is – what if the Supreme Court upholds the “Remain in Mexico” policy and the Biden administration refuses to enforce it?

Since the court is without enforcement authority and Congress lacks the courage to follow the Constitution, the simple answer may be there will be no political consequence to Biden until the 2024 election. But what about the many Americans injured by the millions of illegal immigrants trespassing on farms causing damage to land and animals, and the assaults and even murders of Americans, not to mention the costs of migrant care imposed on hundreds of small towns?

A similar situation occurred in 1832 when President Andrew Jackson was outraged over a Supreme Court decision striking down a Georgia law regulating the entry of white people on Native American lands. Jackson stated – “John Marshall has made the decision; now let him enforce it.” Jackson viewed the Supreme Court’s decision as interfering with his power to remove Indians from their land. Jackson’s contempt for the rule of law eventually led to the horrifying Trail of Tears.

Today, another conflict over the regulation of people is before the Supreme Court. The case, Biden v. Texas, addresses whether the Biden administration must enforce the Trump era “Remain in Mexico” policy that requires non-Mexican migrants to wait in Mexico until the U.S. can adjudicate their asylum claims.

On April 26, 2022, Texas argued that under the clear language of the immigration statute, the Biden administration has only three options for dealing with illegal immigrants: (1) decide on a case-by-case basis to allow certain immigrants to stay since they offer benefits to the U.S.; (2) return the immigrant to Mexico, or (3) place the immigrant in U.S. detention centers.

The Biden administration argues it is impossible to detain the millions of illegal immigrants since Congress only provided funding to detain 34,000 immigrants. Yet, Biden’s 2023 budget seeks to reduce that number by 25%. Moreover, since the “Return to Mexico” policy involves foreign policy with another country, Biden asserts the court cannot interfere with the President’s power over foreign affairs. Operating within these restrictions, the administration opted to release most immigrants into the U.S. Unfortunately, Congress restricted its authority to case-by-case determinations. The administration has no statutory power to release immigrants en masse.

An open southern border seems to be as crucial to president Biden as acquiring Indian lands was to president Jackson. What happens if the Supreme Court orders the Biden administration to enforce the “Remain in Mexico” policy and Biden tells the court, “You made the decision; now you enforce it?”

There are very few workable options to make Biden enforce the law.

Congress could appropriate hundreds of billions of dollars to detain the millions of illegal immigrants until their asylum dates. Is it unlikely that Congress would appropriate such amounts since the Biden administration has refused to complete the most straightforward task, building the border wall.

A Republican House of Representatives in 2023 could impeach Biden; however, it is unlikely the Senate will have 67 votes to convict him. Besides being a footnote in history, the impeachment will not result in any serious border enforcement.

Congress could cut off funds to the Department of Homeland Security (“DHS”). Still, Biden would veto such an effort, and it is unlikely that Congress can override the President’s veto.

Conversely, one House of Congress could refuse to appropriate any funds for DHS operations. This situation is unlikely since it would eliminate all border protection.

A real politick option would be for one House of Congress to refuse to provide any funding for an agency desperately desired by Biden’s allies, such as the Department of Education. Withholding these funds might bring the Biden administration to the negotiating table to ensure his most significant contributor, the teachers union, continues its control over American education. It is unlikely, however; that the Republicans have the courage to enter such a high-stakes negotiation.

A more practical option might be for citizens injured by the administration’s actions to seek compensation under section1985 (c) of the Civil Rights Act of 1871. They would allege that the president and the Border Patrol conspired to act illegally and such conduct deprived them of their right to equal protection of the law.

Federal immigration law requires the President and the Border Patrol to prevent persons and goods from illegally entering the U.S. and harming the nation’s security. Since the start of the Biden administration, citizens have complained of the harm caused by its failure to secure the border, a violation of Biden’s constitutional duty to “Take Care” that the laws be faithfully executed.

The federal government’s defenses of sovereign immunity, (the government can do no wrong), and that it operates as one entity so there cannot be a conspiracy, usually prevail. In the civil rights context, the situation is different when the government deprives citizens of their constitutional rights. Simply, the courts have recognized some limits on immunity from government corruption.

In a civil rights context, “… when execution of a government’s policy or custom, whether the policy is made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury,” the government as an entity is responsible for the actions. Suppose Biden refuses to obey the court’s order, and the Border Patrol follows Biden’s orders. In that case, the two entities are conspiring to violate U.S. policy. The conspiracy deprives those harmed of their right to the equal protection of the law; e.g., intentionally allowing into the U.S. drug dealers, sex traffickers, and terrorists who harm Americans.

For far too long, citizens have lacked remedies when injured by the joint illegal conduct of the Executive and the agencies following its directive. Other examples help illustrate this point: the IRS targeting the tax returns of conservative groups and the FBI filing false FISA applications to spy on citizens. The general remedy of injunctive relief is usually a day late and of no compensatory value. Federal apologies for violating the civil rights of citizens are cheap. Seeking monetary damages under the Civil Rights laws against the federal agencies that intentionally implement illegal government policy may be the best mechanism for citizens to uncover the scope of any unlawful activity and be compensated for their injury.

William L. Kovacs is the author of Reform the Kakistocracy, the winner of the 2021 Independent Press Award for Political/Social Change. Mr. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms.

This article was first published in The Thinking Conservative, https://www.thethinkingconservative.com/what-if-biden-defies-supreme-court-order-upholding-remain-in-mexico/

 

 

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  • The Real Separation of Powers: Government vs Citizens

The Real Separation of Powers: Government vs Citizens

William L. Kovacs

April 2022

The Real Separation of Powers: Government vs Citizens

Scholars pontificate on the brilliance of the separation of powers in our Constitution as a means of protecting citizens by limiting the power of each branch of our government. They talk as if each branch actively works to control the power of the other branches to protect citizens. Unfortunately, these scholars miss reality. The three branches of our government work together to enhance federal powers at the expense of citizens. As the power of the federal government increases, the rights of the individual shrink.

The framework of our Constitution is so broad and vague as to allow the federal government to be capitalist, communist, or socialist, or as now, a “wokeist” system. Moreover, the federal government can tax us as much as it needs to satisfy its wants. From 1932 to 1981, the marginal tax rate in the U.S. ranged between 63%  and 91%. Today, it’s hard to believe, that the federal government can’t live on $5 trillion a year.

Cementing this divide, the U.S. Supreme Court, shortly after our Constitution was ratified, adopted the English doctrine (not a law) of sovereign immunity, i.e. “The King (now the federal government) Can Do No Wrong.” The court’s decision adopted the doctrine as the law of the land. In simple terms, no one can sue the federal government without its consent. While the federal government has consented to be sued on routine matters (e.g., torts, breaches of contract, copyright violations, open records laws, and violations of civil rights when government officials are acting illegally but under color of law), the doctrine of sovereign immunity still bars citizens from challenging the illegal operations of government.

Presently the United States is a system of political rulers and citizen subjects. Citizens can change this system by electing members of Congress who will serve as trustees of the Constitution and fiduciaries to us. Our founders attempted to implement this vision through the Oath’s clause, by not recognizing political parties in the Constitution, and by vesting all legislative power in Congress. Unfortunately, Congress has abandoned its duties under the Constitution and the Executive and the judiciary have vigorously grabbed additional powers.

Notwithstanding Congress being granted all legislative power, it has delegated much of its legislative power to the Executive. Once such delegation occurs, the president through Executive Orders, proclamations and agency rulemakings, determines the law of the nation. Routinely Congress passes a law but the president ignores it, or the president uses agency rulemakings to substitute its will for the intentions of Congress. Examples include the open southern border, lockdowns in the pandemic, stripping legally held permits from the fossil fuel industry, and imposing climate change regulations without any authorizing law.

Compounding this travesty of congressional delegation of legislative powers to the Executive branch, the federal courts, since the founding of the Republic, have operated as super-legislatures. While the Constitution clearly mandates “All legislative Powers … shall be vested in a Congress of the United States,” the U.S. Supreme Court gladly approved of Congress delegating its legislative authority away, requiring only that Congress indicate some “intelligible principle” to the agency implementing the law. “An ‘intelligible principle’ could be anything in the ‘public interest, convenience, or necessity or considered ‘just and reasonable.’ Being put in such subjective terms gives agencies vast discretion when enacting new rules.”

As a super-legislature, with almost unreviewable power, the Supreme Court created rights under National Environmental Policy Act that allow environmental groups to enjoin any action they believe is not the correct environmental decision. This decision gives the environmental activists the ability to control governmental permitting decisions that encompass new oil, gas, and manufacturing decisions. Another example is the Supreme Court creating a federal right to an abortion by “discovering” some non-existent penumbra of previously unknown rights in the constitution. Simply, the Supreme Court has rewritten the Constitution in cases too numerous to mention, especially during the period 1937 – 1944.

Even in routine administrative rulemakings involving a vague statute, the Supreme Court allows the agency fills in the blanks, rather than making Congress do its work.

As the Supreme Court and the Executive expand their power, Congress is placed in a state of helplessness. It does not matter how the law reads; the law is what the court or agency says it means until Congress can gather the votes to overrule the decisions of the other branches. In a divided Congress this is almost an impossible effort.

Once in this state of helplessness, Congress has only one power to control the administrative state; the power of the purse.  Under our Constitution “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  If one party is in control of the Executive and both houses of Congress, the will of the Executive generally prevails as Congress is a mere rubber stamp. However, if a minority party controls just one house of Congress, it can refuse to appropriate the monies needed to run the administrative state. While Congress could not eliminate the Executive or Judicial branches, it could dramatically scale back their funding as a means of reigning in a massive federal government.

While withholding the funds to operate the administrative state is viewed by many as abhorrent; it is the only constitutional power Congress can exercise that cannot be blocked by the other branches. If Congress fears using its power of the purse against the administrative state or an out-of-control judiciary, then it is a useless branch of government.

As citizens we can speak out, protest, demonstrate, complain at government meetings, and send nasty letters to our elected officials, but in the end, we will be ignored if the government wants to ignore us. The government controls our money. In most instances, government, through the withholding tax, has its money before we get our paychecks. The government controls the police to ensure we do nothing other than what it permits. The federal government has even designated parents speaking out at school board meetings to be domestic terrorists. Moreover, the government has and will most likely use, the military and its weapons to ensure citizens act only in ways acceptable to it. Police even blocked the road on the truckers’ convoy so it could not protest in DC.  The truckers’ convoy had to good sense to avoid the grave danger of protesting when the police and likely the federal government would use force to stop them. Had they been Black Lives Matter, they could have burned down the city and it would have been called a peaceful protest. That is life under a woke American government.

The only power we the people have to control government is our power to vote for our members of Congress. We do not vote for the President, the Supreme Court, or the millions of nameless bureaucrats that make laws every day through rulemakings. Our right to vote for members of Congress is extraordinarily powerful. It is a legal mechanism for a peaceful revolution. With our votes, we can vote out all elected officials over six years and elect a Congress that is a trustee of the Constitution and a fiduciary to the people.

William L. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. His second book, The Left’s Little Red Book on Forming a New Green Republic, quotes the Left on how it intends to control society by using climate change to eliminate capitalism, people, and truth.

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  • Rule of Law or Different Rules for Us and Government

Rule of Law or Different Rules for Us and Government

William L. Kovacs

October 2019

Rule of Law or Different Rules for Us and Government

The rule of law is a centuries old concept that all members of society, citizens as well as government officials, are equally subject to the laws established by their duly elected government. This concept is described in many ways such as “the law is the king”, “no man is above the law”, or “we are a government of laws, not men.” We are told these concepts so we believe our government will always be fair to us and if our government breaks the law, the government official or the government itself, will receive the same treatment under our legal system as we would receive for similar activity. Very comforting as a concept. But keep in mind the “rule of law” is not a law of any kind and it has no binding effect on anything. It is merely a concept or more appropriate, a fable repeated by governments to make themselves sound accountable.

The U.S. Constitution places limits on the powers of government and how the government must treat us should they want to act against us, which is the requirement of due process, a procedural right. Additionally, Amendment XIV of the Constitution establishes that the government cannot deny any person within its jurisdiction equal protection of the laws. Note, it requires the government to treat persons equally when the government acts against them. Other than limits placed on the government by the Constitution or laws passed by Congress, there is scant mention of how our legal system applies to the operation of government when it acts illegally.

Cementing this disparity of how government relates to its citizens, is that after our Constitution was ratified the federal courts adopted from English courts the doctrine (not a law) of sovereign immunity, i.e. “The King Can Do No Wrong”, which means that no one can sue the federal government without its consent. While the federal government has given its consent to be sued on specific matters (e.g. torts, breaches of contract, copyright violations, open records laws, and violations of civil rights when government officials are acting under color of law), the doctrine of sovereign immunity usually bars citizens from taking legal action against the illegal operations of government.

Our legal system operates on two separate tracks. The first is the law imposed upon ordinary citizens for which we are prosecuted for violating. And since the government has hundreds of thousands of laws it can always find a violation of some law by a person it wants to prosecute.

The second track is the one under which government operates. This second track, due to sovereign immunity, can only enforced if there is a specific statute that allows citizens to enforce it, or by political means, i.e. voting or impeachment. Otherwise, the nation’s courts do not recognize the right of citizens to have standing in a court of law to sue their government unless the government grants that right.

A few examples put this disparity into perspective.

A Navy officer took photographs of a nuclear submarine he worked on and was imprisoned for improperly handling national security secrets. During the same time period a presidential candidate maintained an illegal a secret server in her home that illegally received classified security information and by not properly protecting it the security secrets were obtained by other governments. Because the presidential candidate was closely tied to the sitting president, she was not ever seriously investigated; yet alone prosecuted.

The Federal Bureau of Investigations investigates the alleged criminal activity of one presidential candidate but not the alleged criminal activity of the other presidential candidate who had the backing of the sitting president.

The Department of Justice (“DOJ”) files misleading and dubious applications with a national security court and obtains a court order to spy on American citizens, a felony, if falsely obtained. DOJ and the court both refused to even investigate these illegal actions. If any of us filed a false application with any court we would be subject to criminal prosecution.

Congress issues a subpoena to the DOJ for information on false filings before a national security court. The DOJ refuses to provide Congress with the documents to avoid embarrassment and likely the acknowledgement of criminal activity. By refusing to provide such information the constitutional checks on the other branches of government are eliminated. Imagine what would happen to any of us if we refused to comply with a federal subpoena?

And there is a story in the Washington Times about a senior FBI official who lied to the DOJ Inspector General about accepting free tickets to a professional sporting event. He told the FBI he paid for the tickets, yet he received them free. The DOJ decided not to prosecute, yet several citizens working on the Donald Trump campaign were prosecuted for lying.

The moral of this article is that the government has truly separated itself from us. Government operates in a netherworld of secrecy, deceit, arbitrariness, and finding targets to attack. The government can usually act any way it wants to act, and there is little we can do since we are barred by the doctrine that the “government can do no wrong” and the courts will not grant us standing since they believe we have not been harmed by government’s actions. We are merely citizens without the ability to hold our government accountable.

We, the people, only have control over the parts of the government we elect. We need to fully embrace the only real power our founding fathers gave us, the right to vote which is a legal mechanism for revolution. With our votes we can vote out all elected officials over four years and hope that the new government officials will establish a government that willingly stands before us as accountable servants of the Constitution. Unfortunately, such accountability, under the current legal structure, is voluntary.

This article was first published in http://ifcus.org/category/stories/ The Reality News, November, 2018.