What can we do to get a reasonably honest election?

By Publius Huldah

A disaster of monumental proportions is likely to be ahead for our Country if we don’t take emergency action to get at least a reasonably honest election. Not only the President’s seat, but also the entire US House, the Houses in the State Legislatures, one/third of the seats in the US Senate, and a proportional number of seats in the State Senates, are all at stake in the upcoming election.

We are faced with irrefutable proof that the Marxists intend to steal the election. And they will not content themselves with stealing only the President’s seat – they seek to steal every seat on the ballots.

So we need to face up to the problem and take immediate action.

1. What does Congress have constitutional authority to do?

The President and Vice President are supposed to be elected using the procedures set forth in Article II, §1, cl. 2 and the 12^th Amendment to our US Constitution. But we have ignored those provisions for a great many years; and it’s too late to obey them for the upcoming election of President and Vice President.

But Congress still has constitutional authority to invoke Article II, §1, cl. 4, which invests in Congress the power to determine the time of chusing the Presidential Electors and the Day on which they vote. That date is currently set for November 3, 2020.

Pursuant to Article I, §4, cl. 1, Congress may make laws determining the “Times, Places and Manner” of holding the federal elections to Congress.

Since we know that Trump ballots have been tossed into dumpsters, and election offices have been flooded with fake Biden ballots; the best course of action would be for Congress to make a law which reschedules the November 3 election to a later date; and cancels everything which has been done so far respecting the election (at least since the primaries).

Congress could then exercise its constitutional authority to establish common sense procedures respecting the “Time, Place and Manner” of voting in the upcoming elections. For example, Congress could pass a law providing that:

· Every registered voter who wants to vote must physically appear at his officially designated place of voting and produce proof of identity.

· Election Day should be one day – not weeks and months before & after the date set for the election.

· Absentee voting should be restricted to those who are out of the Country or out of State due to military service, service in the diplomatic corps, missionaries stationed overseas, businessmen stationed overseas, etc.

We used to do it this way.

But the Marxists came in with their hard luck stories about how these requirements were harsh, unfair, discriminatory, and so forth; and so our side [as usual] caved in and went along with the demands which stripped us of the ability to have even reasonably honest elections.

However, because Marxists now control the House, Congress lacks the ability to act as suggested above.

2. What does the US Supreme Court have constitutional authority to do?

Article I, §4, cl. 1 provides that the power to set the “Times, Places and Manner” of voting in federal elections is delegated exclusively to the Legislative Branches of the State & Federal governments [LINK]. Accordingly, and consistent with the Principle of “Separation of Powers” and the “political question” doctrine [LINK], the Judicial Branches of State and federal government have no lawful authority to substitute their views on these issues for those of the Legislative Branches.

Even so, with respect to the upcoming elections, lawless federal and state judges have been usurping power by substituting their views respecting the “Times, Places and Manner” of voting, for the views of State Legislatures. Some judges are ruling that because of COVID-19, voters shouldn’t be required to go to the polls – everyone must be allowed to vote by mail; and the time for counting ballots must be extended.

Obviously, the Supreme Court has no constitutional authority to substitute their views respecting the “Times, Places and Manner” of voting for those of the legislative bodies. Instead, the Supreme Court’s Duty is to issue orders and judgments which adhere to what the Constitution says.

So the Supreme Court should overturn the usurpatious orders of state and federal judges who attempted to usurp power over this issue. They should remind The People of our Country that only the State Legislatures and Congress may address these issues – that judges must keep their hands off. The power isn’t given to the Judicial Branches.

But a recent case out of South Carolina indicates that the most we will get from the Supreme Court is an unprincipled “cut the baby in half” compromise.

South Carolina law provides that a witness must sign an absentee ballot for the ballot to be valid. The Marxists (or their dupes) objected to this requirement and sued. Using COVID-19 as the excuse, the federal judge disagreed [!] with the statutory requirement for a witness, and said the State couldn’t enforce it. South Carolina election officials applied to the US Supreme Court for a stay of the lower Court’s order. ¹

On October 5, 2020, in Andino v. Middleton [LINK], the Supreme Court stayed the Order, except to the extent that any ballots cast before they granted the Stay and received within two days of their Order may not be rejected.

So the Supreme Court’s Order is nothing for us to celebrate. The Supreme Court is allowing several days’ worth of unlawful ballots to be treated as valid; and thus are rewarding the trial judge’s usurpation of powers [which were granted to the South Carolina Legislature], by allowing these unlawful ballots to be counted.

But our good Justices, Thomas and Alito, and Gorsuch as well, would have granted the Stay in full and disqualified all the unlawful absentee ballots.

Justice Kavanaugh’s concurring opinion suggests that, like the majority, he doesn’t understand that the Judicial Branch has no constitutional authority to alter State election laws re the “Times, Places and Manner” of holding elections:  he pointed out that the actions of the lower Court violated Supreme Court precedent [!] that (1) an unelected federal judge ordinarily shouldn’t make public health decisions which overrule State Legislatures, and (2) federal courts ordinarily shouldn’t alter state election rules in the period close to an election. Yikes!

So while the Supreme Court might “give” us some relief from the massive cheating, it seems unlikely that they will provide a principled defense of our Constitution.

3. What must State Governments do?

State governments may be the only way salvage, at least to some extent, the upcoming election. Since the Judicial Branches of the State and federal governments have no constitutional authority to change the decisions of the Legislative Branches respecting the “Times, Places and Manner” of federal elections; State Governments should instruct the Election Officials for their State that they must obey & enforce the election laws passed by their State legislature and not the usurpatious orders of judges. Judges have no constitutional authority to change what the State Legislatures do on this issue!

Election officials should also be shown that judges have no power to enforce their orders & judgments – that they depend on the Executive Branches of the federal or State governments to enforce them. We are doomed if Americans remain unable to grasp this simple concept.

Endnote:

¹ The better course of action would have been for South Carolina to nullify the lawless opinion of the federal judge by refusing to enforce it. Remember! Federal judges have no army – they can’t enforce their Orders. They must depend on the Executive Branch of the federal gov’t to enforce them. Who thinks President Trump would send in the National Guard to force South Carolina election officials to allow cheating in the upcoming election? If those officials had been familiar with what Alexander Hamilton wrote in Federalist No. 78 (6^th para), they would have known this.

 

Mail-in voting? A “political question” which only State Legislatures and Congress may decide

By Publius Huldah

It has become obvious that one of the purposes of the COVID-19 scam is to bring about unrestricted mail-in voting in the toss-up and Red States so that the upcoming presidential election can be stolen by the Left for the senile Joe Biden and his constitutionally ineligible running mate, Kamala Harris.

On September 9, 2020, the Left achieved their goal for the Red State of Tennessee – unless the Tennessee State government enforces the US Constitution and rejects the federal judge’s unconstitutional order.

1. The absurd Order from the US District Court, Middle District of Tennessee

The Tennessee Code permits mail-in voting for certain categories of people [Tenn. Code § 2-6-201]; but requires those who register by mail to appear in person at the official place of voting and bring proof of identity when they vote for the first time [Tenn. Code § 2-2-115 (b) (7)].

Our elections are already tainted by the “ghost voters” described in Deroy Murdock’s article (published 2017) [here]. Murdock showed that throughout the United States, over 3.5 million persons who didn’t exist were registered to vote. But that number wasn’t sufficient to elect Hillary Clinton; so the Left needs more ghost voters. With mail-in voter registration, dead people can be registered to vote; and with unrestricted mail-in voting, those dead people can vote forever.

The Plaintiffs in this action claim to be distressed about the statutory requirement that first-time voters (who registered by mail) appear in person to vote because it forces them to choose between their “health” [they might catch COVID-19 if they go to the polls] and their right to vote. ¹

On September 9, 2020, federal judge Eli Richardson issued a preliminary injunction which has the effect of setting aside, for the upcoming presidential election, the statutory requirement – established by the Tennessee Legislature – that persons who registered by mail, show up in person the first time they vote.

Here is Richardson’s 29 page Order.

So let’s cut 29 pages of bunk down to its essence: Richardson ruled that the Tennessee Legislature’s requirement that the first-time voters (who registered by mail) physically appear at the polls, imposes a “moderate burden” on voting rights; and the State failed to show the Court that Tennessee has a “legitimate state interest” to justify that burden. ²

Even worse: Throughout his Order, Richardson writes repeatedly [some 20 times] of Plaintiffs’ “First Amendment right to vote”; and says at the end of para 31 of his Order,

“…it is likely that Plaintiffs will prevail on their claim that the first-time voter requirement violates the First Amendment right to vote…”

But the First Amendment makes no mention of a “right to vote”. ³ Furthermore, in footnote 22 of his Order, the Judge says:

“In a prior order, the Court declined to address any suggestion that there is no First Amendment right to vote, for any purposes at all, by mail in particular… The Court was well aware that McDonald supports such a suggestion, but the Court simply did not need to opine on that matter. The Court likewise does not need to do so here…”

What? The Judge declined to address whether or not a First Amendment right to vote actually exists – even though he has already determined that Plaintiffs are likely to prevail on their claim that the requirement that first-time voters (who registered by mail) show up in person to vote “violates the First Amendment right to vote”!

2. Why do Plaintiffs and the Judge repeatedly speak of a “First Amendment right to vote”, when the Judge isn’t prepared to say that such a right even exists?

They may be aware that the federal court has no jurisdiction over this case; but are attempting to fake it by claiming that the case “arises under the Constitution” via the First Amendment.⁴

The judicial power of the federal courts is limited to those few categories of cases enumerated at Article III, §2, clause 1, US Constitution. Not one of the categories invests the federal court with jurisdiction over this case. This case can’t be said to “arise under the Constitution” because there is no “right to vote” in the US Constitution; and the remaining categories listed in Article III, §2 are clearly inapplicable.

So it appears that Plaintiffs have fabricated a mythical “First Amendment right to vote” in order to provide a pretext for the federal court to exercise jurisdiction in this case – and that the federal judge let them get away with it.

3. Article I, §2, clause 1, US Constitution, negates the absurd claim that there exists a federal constitutional right to vote.

At Article I, §2, cl. 1, the States expressly retained their pre-existing power to determine the qualifications of voters:

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [italics added]

Accordingly, those who are eligible to vote for Representatives to their State Legislature are the ones eligible to vote for Members of the federal House of Representatives. ⁵

With four later Amendments, the States agreed that they would not deny eligibility to vote to Citizens on account of race (15^th Amendment), sex (19^th Amendment), failure to pay a tax (24^th Amendment), and for those 18 years of age or older on account of age (26^th Amendment). It is important to note that these four amendments do not grant the “right” to vote to the persons described in the Amendments – merely that the suffrage will not be denied to those persons on account of their race, sex, etc.

So the States retained their original authority to set whatever qualifications for voting they deem appropriate, subject to their agreement that they would not deny suffrage on account of a Citizen’s being in one of those four categories.

So there is no “right to vote” set forth in the US Constitution. To the contrary, voting is a privilege granted or denied on the basis of whether applicants meet the qualifications for voting set forth within their State Constitution. ⁶

4. What does our Constitution say about how the President and Vice President are to be elected?

Article II, §1, cl. 2 and the 12^th Amendment set forth the procedures for electing President and Vice President. Those procedures are described here under the subheadings, “Electors appointed by States were to choose the President” and “The 12^th Amendment establishes procedures for voting by Electors”.

Our current procedures bear no resemblance to the Constitutional requirements. ⁷ It’s too late to obey the Constitution for the upcoming presidential election; so let’s see what our Constitution says about the federal elections to Congress.

5. US Constitution: the “times, places and manner” clause

Pursuant to Article I, §4, clause 1, State Legislatures have the power to prescribe the Times, Places and Manner of holding Elections for US Representatives ⁸ and US Senators.⁹

This clause also provides that Congress may make laws which override such State laws.

So the power to determine the time, place and manner of holding such federal elections is delegated exclusively to the Legislative Branches of the State and federal governments.

It is up to the State Legislatures to decide which “burdens” are appropriate with respect to the place of voting – with Congress having power to override what a State Legislature decides. The Judicial Branches of the state and federal governments may not substitute their views as to which “burdens” are appropriate and which are not. These are “political questions” granted to the Legislative Branches to decide; and the Judicial Branches – state and federal – may not lawfully interfere. ¹⁰

It is clear that “manner of voting” includes such matters as a requirement of personal presence at the place of voting. This is what our Framers contemplated, as shown by their words quoted in footnote 8 below. When a State legislature decides that personal presence is required – that decision can be overturned only by Congress.

So Judge Richardson’s view that the Tennessee Legislature doesn’t have a good reason for requiring first time voters (who registered by mail) to vote in person and present ID is irrelevant, and his Order is ultra vires.

6. What is the State’s remedy against the unlawful Court order?

So! You have seen that determining the “place and manner of voting” is a political power delegated exclusively to the State and federal Legislatures. It is thus a “political question”; and the federal [and state] Judicial Branches may not substitute their views for those of the Legislative Branches.

And since there is no “right to vote” contained in the US Constitution, the Federal District Court has no jurisdiction over this case. This case doesn’t “arise under the Constitution” or fit within any of the other categories of cases enumerated at Article III, §2, cl.1, US Constitution.

So the pretended Order of September 9, 2020, is ultra vires and lawless, and the State of Tennessee has no obligation to obey it.

The duty of the elected and appointed State and local officials is to obey the US Constitution. When the dictates of a federal [or State] judge contradict the Constitution, State officials must side with the Constitution and against the judge. ¹¹

And what will happen if the State of Tennessee refuses to comply with the Judge’s order? The Judge can’t enforce his Order. He has to depend on the Executive Branch of the federal government to enforce it. ¹² Do you believe that President Trump will send in federal troops to force the State of Tennessee to comply with Judge Richardson’s ultra vires Order?

Note:  In addition to the Offices of President & Vice-President, many other offices will also be on the Ballot:  the entire US House of Representatives is up for grabs.  So is the House in the State Legislatures all over the Country.  1/3 of the US Senate will be on the ballot; and a proportional number of Senate Seats on State Legislatures throughout the Country will be on the ballot.

EVERY REPUBLICAN LEGISLATOR NEEDS TO UNDERSTAND:  Your Seat is likely to be stolen in this upcoming election.

So you better wake up and get your State Legislature to smack down the federal & state judges who are assisting the Left in stealing your Seat.  And if Congress doesn’t act, they will lose control of the Senate and most likely every seat in the House.

Why should the Left stop with stealing only the Presidential election when they can also steal YOUR seat?

Endnotes:

¹ How do they get their groceries?

² Order at paras 29 – 31.

³ The First Amendment says,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is a limitation on Congress’ powers to make laws – it doesn’t grant a “right” to vote!

⁴ In Federalist No. 80 (2^nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” [boldface added].

In the 3^rd & 13^th paras, Hamilton illustrates what “arising under the Constitution” means: He points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

⁵ The 17^th Amendment [ratified 1913] provides that those who are eligible to vote for Representatives to the US House are eligible to vote for US Senators.

⁶ With the National Voter Registration Act of 1993, Congress usurped the retained power of the States to set and enforce eligibility standards for voting. In a series of 3 papers, the last of which is here, I show how the assertions about The Federalist Papers made by the 9^th US Circuit Court of Appeals and the Supreme Court, in their attempts to justify their unconstitutional judgments, are false.

⁷ Our disregard of these constitutional provisions doubtless contributed to the creation of the current chaos.

⁸ Our Framers told us what “times”, “places” and “manner” mean:

In Federalist No. 61 (4^th & 5^th paras), Alexander Hamilton shows that “Time” refers to when elections are held. He explains that under the Articles of Confederation [our 1^st Constitution], States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year”.

“Place”: Hamilton also points out that the suffrages of citizens living in certain parts of the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2^nd para). [caps are Hamilton’s].

“Manner” of holding Elections refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives. James Madison discusses the “Manner” of holding Elections in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures … 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said in The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose … It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

9 When Art. I, §4, cl. 1 was drafted, the State Legislatures were to choose the State’s Senators to the US Congress – so the “place” of choosing the US Senators would be wherever the Legislature met. With ratification of the 17^th Amendment, Congress gained oversight over State laws addressing the “place” of election of US Senators.

¹⁰ In Marbury v. Madison [link], decided 1803, the Supreme Court explained the concept of “political powers” and that the manner in which political powers are exercised is beyond the reach of the courts:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. …whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive … [and] can never be examinable by the Courts.”

Marbury addresses the political powers exercised by the President. That same deference to the exercise of political powers has long been extended to the acts of the other political branch, Congress. Where the Constitution grants a political power to Congress, the manner in which Congress exercises the discretion is also beyond the reach of the Courts. So, for example, if Congress were to exercise the power granted to it by Article I, § 4, clause 1, to make a law banning mail-in voting; its action can never be examined by the Courts – the Courts may not substitute their views for those of Congress.

¹¹ Marbury v. Madison also stands for the Great Principle that when an Act of one branch of government violates the Constitution, the other Branches must obey the Constitution and not the unlawful Act.

¹² Alexander Hamilton made this same point over 200 years ago – see Federalist No. 78 (6^th para). If law schools had made The Federalist Papers required reading, our Country wouldn’t now be in such a mess.

Honest discourse about Article V convention needed

By Publius Huldah

Whether States should ask Congress to call a convention under Article V of our federal Constitution is one of the most important issues of our time. The Delegates to such a convention, as Sovereign Representatives of The People, have the power to throw off the Constitution we have and set up a new Constitution – with a new and easier mode of ratification – which creates a new government.¹

Americans need the Truth. But former law professor Rob Natelson’s recent article in The Hill is filled with ad hominems and misstatements. Natelson is legal advisor for pro-convention groups such as “Convention of States Project” (COSP).

“Poisoning the well” fallacy

Natelson characterizes those who oppose an Article V convention as “big government advocates”; “Washington insiders” who protect “judges and politicians who abuse their positions”; chanters of “talking points” from the “disinformation campaign” of the 1960s and early 1970s who have “no real expertise on the subject”; and, like those involved in “voter suppression efforts”, use “fear and disinformation” to discourage citizens from exercising their rights.

And while such tactics clearly resonate with COSP’s cheerleading squad; ² others immediately recognize the preemptive ad hominem attack known as the “poisoning the well” fallacy. That fallacy is committed when one primes the audience with adverse information or false allegations about the opponent, in an attempt to bolster his own claim or discount the credibility of the opponent.

Obviously, Natelson’s characterizations don’t constitute proof that he is right, and opponents are wrong.

Misrepresentations, omissions, and irrelevant “academic research”

1. Natelson asserts:

“Our founders designed this [Article V convention] as a way the people could fix the federal government if it became abusive or dysfunctional”.

But he presents no proof – and can’t because no one at the federal convention of 1787 (where our present Constitution was drafted) said such a thing. As proved in The George Mason Fabrication, the Delegates agreed that the purpose of amendments is to correct defects in the Constitution.

2. Natelson asserts:

“Any proposals must… be ratified by 38 states before they become law.”

That’s not true. While any amendments to our Constitution must be ratified by 38 States; our Declaration of Independence says it’s the “self-evident” Right of a People to abolish their government and set up a new one.

We invoked that Right in 1776 to throw off the British Monarchy.

In 1787, we invoked that Right to throw off our first Constitution, the Articles of Confederation; and set up a new Constitution – the one we now have – which created a new government.

How did we get from our first Constitution to our second Constitution? There was a convention to propose amendments to our first Constitution!

The Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia:

“for the sole and express purpose of revising the Articles of Confederation”.

But the Delegates ignored this limitation – they ignored the instructions from their States – and they wrote our second Constitution.

And in Federalist No. 40 (15^th para), James Madison invoked the “transcendent and precious right” of a People to throw off one government and set up a new one, as justification for what they did at the federal “amendments” convention of 1787.

We can’t stop that from happening at another convention. Furthermore, any new constitution will have its own mode of ratification. Whereas Art. 13 of the Articles of Confederation required amendments to be approved by the Continental Congress and all of the then 13 States; the new Constitution provided at Article VII that it would be ratified by 9 States.

Any proposed third constitution will have its own mode of ratification. The proposed Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). The States don’t ratify it – they are dissolved and replaced by regional governments answerable to the new national government.

3. Natelson asserts that “academic research” shows:

“…how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history…The convention follows a pre-set agenda and attendees are subject to state legislative direction.”

Natelson’s “meetings” are irrelevant:  they weren’t constitutional conventions called to propose changes to our Constitution!

Furthermore, Natelson doesn’t mention the one relevant convention we have had in this Country: the federal “amendments” convention of 1787. That convention involved Delegates who ignored the instructions from their States ³ and from the Continental Congress, and resulted in a new Constitution with a new and easier mode of ratification. That is the only “meeting” which is relevant to the convention Congress has the power to call under Article V of our Constitution.

The “calling” of a convention by Congress is governed – not by Natelson’s “meetings” – but by provisions in our Constitution. Article V delegates to Congress the power to “call” a convention; and Article I, § 8, last clause, delegates to Congress the power to make laws “necessary and proper” to carry out that power.

As to the sovereign powers of Delegates, look to the Declaration of Independence, the federal “amendments” convention of 1787, and Federalist No. 40 – not to Natelson’s “meetings”.

4. In an earlier article, Georgetown law professor David Super cited Coleman v. Miller (1939) to show that as amending the Constitution is a “political question”; the courts are unlikely to intervene. ⁴

Natelson responded that Coleman is a 79-year old “minority opinion the courts have long repudiated”; but doesn’t show where the Supreme Court “repudiated” its opinion.

What Coleman shows is this: we can’t expect federal courts to make Delegates obey instructions. No one has power over Delegates – Delegates can take down one government and set up a new one.

Conclusion

Here’s an idea: Let’s all read our Declaration of Independence and Constitution; elect only people who have also read them, know what they say, and agree to obey; and then let’s downsize the federal government to its enumerated powers.

Endnotes:

¹ This is why James Madison, Alexander Hamilton, four Supreme Court Justices, and other luminaries warned against an Article V convention.

² At 5:25-7:35 mark. Archived HERE.

³ The States’ instructions are HERE at endnote 9.

⁴ Professor Super is right: When the Constitution delegates a power to one of the “political” branches [legislative or executive], federal courts [“judicial” branch] traditionally abstain from interfering and substituting their judgment for that of the branch to which the power was delegated.

Transgenders in the Military – Who Decides: Congress, the President, or Federal Judges?

By Publius Huldah

In a case now pending before the US District Court for the District of Columbia,¹ the trial judge recently granted a preliminary injunction which purports to temporarily stop the Trump Administration from banning so-called “transgender” persons from serving in the Military.

But we will look at the real issue: Does the Judicial Branch of the federal government have constitutional authority to require the Legislative and Executive Branches of the federal government to permit transgender persons to serve in the Military?

Instead of going along with what everybody says – or expounding on one’s personal views on the topic –let us consult and obey the US Constitution:

· Article I, Section 8, clauses 11 – 13, delegate to Congress the powers to declare War, grant Letters of Marque and Reprisal, make rules concerning Captures on Land and Water; raise and support Armies; and to provide and maintain a Navy.

· Article I, Section 8, clause 14, delegates to Congress the power “To make Rules for the Government and Regulation of the land and naval Forces;”

· Article II, Section 2, clause 1, says, “The President shall be Commander in Chief of the Army and Navy of the United States…”

In Federalist Paper No 69 (6^th para), Alexander Hamilton says:

“…The President is to be commander-in-chief of the army and navy of the United States. … his authority … would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy…”

So! All the powers over the Military which have been delegated by the Constitution are vested in the Legislative and Executive Branches of the federal government.

The Judicial Branch has no role to play in the organizing and operation of the Military Forces.

Pursuant to Article I, Section 8, clauses 11-14, Congress alone has the delegated authority to decide who may serve in the Military. If Congress issues Rules banning transgender persons from serving, then it is the President’s job, as Commander in Chief, to enforce those rules.

Accordingly, instead of participating in the litigation before the federal district court, the Trump Administration should instruct the federal judge on the long-forgotten concept of “Separation of Powers” and advise the court, “You have no jurisdiction over the Military – we will not participate in this lawsuit.”

1. Military courts and military lawyers in a nutshell

The Judicial Branch of the federal government was created by Article III, US Constitution. That Article created the supreme Court, and authorized Congress to ordain and establish, from time to time, such inferior courts as needed. Pursuant to that authority, Congress has established 94 federal district courts (where most federal trials are conducted), and 13 US Circuit Courts of Appeals.

The US Military has its own court system which is not part of the Judicial Branch of the federal government. The military courts are “Article I Courts” created by Congress in the Uniform Code of Military Justice (UCMJ).² They consist of trial courts where courts-martial are conducted; each Branch of Service has its own “Court of Criminal Appeals”; and the “US Court of Appeals for the Armed Forces” hears appeals from the Services’ Courts of Criminal Appeals.

And when military commanders need legal advice, they get it from their own Service lawyers (this is one of the duties of lawyers in the Judge Advocate Generals’ Corps).

The Judicial Branch of the federal government has no constitutional authority over the US Military.

2. Federalist Paper No. 80 and the meaning of “arising under”

Some may assert that the Judicial Branch has authority to determine who may serve in the Military because Article III, Section 2, clause 1 says,

“The judicial Power shall extend to all Cases…arising under this Constitution and the Laws of the United States…”

But they would be wrong. In Federalist No. 80, Alexander Hamilton explains the jurisdiction of the courts created by Article III: In the 2^nd, 3^rd, 4^th, and 13^th paragraphs, he shows that the purpose of the language quoted just above is to authorize the Judicial Branch to enforce the Constitution – not re-write it; and to enforce constitutional federal laws – not re-write them.

Furthermore, in Federalist No. 81 (8^th para), Hamilton addresses judicial encroachments on legislative authority, and reminds us that such encroachments need never be a problem because of the courts’ “total incapacity to support its usurpations by force”; and because Congress may protect the Country from usurping federal judges by impeaching, trying, convicting, and removing them from office.

3. Political Questions

Accordingly, when a power is vested by the Constitution in the Legislative or Executive Branches [the “political branches”] the federal courts [the “legal branch”] have traditionally refused to interfere.

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795 which authorized the President to call forth the militia when he judged it necessary to repel an invasion.³ The Court pointed out that the power had been confided [entrusted] by Congress to the President, and

“We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

In Foster v. Neilson, 27 U.S. 253 (1829), which involved a dispute between the United States and Spain over territory, the Court held that once those departments [Executive and Legislative Branches] “which are entrusted with the foreign intercourse of the nation” have asserted rights of dominion over territory, “it is not in its own courts that this construction is to be denied”. “A question … respecting the boundaries of nations, is … more a political than a legal question; and … the courts of every country must respect the pronounced will of the legislature.”

Likewise, the power to determine who may serve in the Military has been delegated to the Legislative Branch of the federal government i.e., Congress. The Judicial Branch may not substitute its judgment for the Will of the Legislative Branch; and if it attempts to do so, Congress should employ the remedies suggested by Hamilton in Federalist No. 81.

4. The President’s “check” on the federal courts

Finally, let’s look at Federalist No. 78 (6^th para) where Hamilton – unlike the pundits of today – tells us the Truth about the powers of federal courts:

“…The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [boldface mine; caps are Hamilton’s] ⁴

An informed President who is a manly man will ignore ultra vires orders of the Judicial Branch.

5. Conclusion

Let us put the federal courts in their proper place! Congress and the President have the recognized power to refuse to go along with unconstitutional or ultra vires acts of the Judicial Branch; and their Oaths of office require them to do so. Congress also has the power to rid us of usurping federal judges via the impeachment process.

Endnotes:

¹ The US District Court for the District of Columbia was established by Congress pursuant to Art. III, §1, US Constitution.

² Congress’ authority to create the Military Courts is derived from Art. I, §8, cl. 14, US Constitution.

³ Article I, §8, clause 15, delegates to Congress the power, “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

⁴ I trust you see why Hamilton is viciously smeared. The relentless attacks on our Framers have a purpose: Take them down – and our Foundation is destroyed. Hamilton wrote most of The Federalist Papers, which Madison and Jefferson recognized as the best evidence of the genuine meaning of our Constitution.  What effect do these constant attacks on Hamilton have on peoples’ respect for The Federalist Papers? Beware of false friends who undermine our Foundation; and of jealous men whose claim to fame is that they attack Hamilton.

Who Makes the Ruling that Someone is not Qualified for the Office of President of the United States?

By Publius Huldah

According to the original intent of our Constitution, Ted Cruz & Marco Rubio are not eligible to be President because their fathers weren’t US citizens at the times they were born. So they are not “natural born citizens”.

So! How is this handled? Who calls it?  Who makes the ruling? Do we “file a lawsuit” and let federal judges decide? “Slap your hands!”, our Framers would say. They would say, “READ THE CONSTITUTION AND SEE WHAT IS SUPPOSED TO HAPPEN!”

[Our lives would be so much simpler – and our Country so much better off – if we read & supported our Constitution.]

Read the 12th Amendment. That sets forth the procedures for election of President and VP. Note that ELECTORS are supposed to be the ones making the selection – not The People. [There is a reason for that.]  For an illustration of how this works, go HERE and read the subheadings,  “Electors” Appointed by States Were To Choose The President!  and The 12^th Amendment Establishes Procedures For Voting By Electors.

So! Assume we followed the Constitution on this issue and we get to the part where Congress is counting the votes as provided by 12th Amendment. And Lo! Congress discovers that the person who got the most votes for President is NOT QUALIFIED by reason of age, or not being a natural born citizen, or not having been for at least 14 years a Resident within the United States.

Obviously, it’s Congress’ job to make the ruling – to make the call – on whether the President and VP – selected by the ELECTORS – are qualified under Art. II, Sec. 1, clause 5.

So what happens if Congress finds that the person with the most votes for President is not qualified? We look to Sec. 3 of the 20th Amendment. It tells us what happens. If the President elect has failed to qualify, then the VP elect shall act as President… Now, read the rest of that Section. We would also need to see whether Congress has made any of the authorized laws providing for such contingencies.

So, under the Constitution as written, it is Congress’ job to make the call as to whether the President elect and the VP elect are qualified.

This is NOT an issue for the federal courts to decide. That is because this is a “political question” – not a “legal question”. The power to make the ruling as to whether the president elect or the VP elect are qualified has been delegated to CONGRESS. Traditionally, federal courts have “abstained” from deciding “political questions”.

We study this in our first year constitutional law class, when we study judicial “abstention” from certain kinds of cases including cases which involve “political questions” or the exercise of powers delegated to the Legislative or Executive branches. When a power is delegated to one of the “political branches” (Legislative or Executive), the federal courts (the “legal branch”) have traditionally declined to interfere and substitute their judgment for that of the “political branch” to which the Power was delegated.

And what if Congress gives an ineligible person a pass – as they did with obama? WELL THEN, SHAME ON US – BECAUSE WE ARE THE ONES WHO ELECTED THOSE IGNORANT COWARDS TO OFFICE!