Obergefell v. Hodges: Illegitimate, Unlawful, And A Fraud On The American People

There is simply no other way to say it.

The Supreme Court’s decision today redefining marriage to include couples of the same sex is wholly illegitimate and unlawful. A nullity. Worthy only to be disobeyed.

Anyone who says otherwise — that the rule of law requires recognition of same-sex marriage — is committing a fraud. And any State official — like Governor Robert Bentley of Alabama — who says that his oath of office requires unconditional obedience to the Supreme Court’s mandate to issue same-sex couples licenses to marry is mistaking his oath to the Constitution as if it were an oath of absolute obedience to five justices who happen to be sitting on the nation’s highest court.

As Chief Justice Roberts in dissent has described the action taken today:

“Five lawyers have closed debate and enacted their own vision of marriage as a matter of constitutional law.  Stealing this issue from the people ….”

And just who are these lawyers? Justice Scalia reminds us that they are all educated at either Harvard or Yale, from the east- and west- coasts, not from the vast middle of the country, and not a single one an evangelical Christian or a Protestant, and then observes:

“The strikingly unrepresentative character of the body voting on today’s upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.”

Indeed, from the outset of his bare majority decision, Justice Kennedy did not even act like a judge. Rather, he wrote as if he were an existentialist philosopher seeking the meaning of life, as if the “liberty” protected in the Constitution was a personal quest “to define and express [one’s personal] identity.”

But the Constitution is not some philosophical work written by Jean Paul Sartre. Rather, it is a political and legal document designed by America’s founders to secure the unchanging God-given rights to life, liberty, and property which are deeply rooted in the 18th century soil of the nation. Justice Kennedy showed no regard for these fixed principles, opting for an evolutionary approach to law — asserting that the existential definition of marriage changes with changing times.

However, the very purpose of our Constitution is, as Chief Justice John Marshall wrote in Marbury v. Madison, to make “permanent” those principles that the people desired. And, so that those principles would not be “mistaken or forgotten,” the people committed them to writing. Thus, Marshall wrote: “it is the province and duty for the courts to say what the law is,” not to make it up as we go along.

As today’s dissenting Chief Justice observed, “[t]hose who founded our country would not recognize the majority’s conception of the judicial role”:

“They after all risked their lives and fortunes for the precious right to govern themselves.  They would have never imagined yielding that right on a social policy to unaccountable and unelected judges.  And they certainly would not have been satisfied by a system of empowering judges to override policy judgments so long as they do so after ‘a quite extensive discussion.’”

And, as the capstone of his dissent, the Chief Justice concluded: “the Constitution. It had nothing to do with it.” In those nine simple words, Chief Justice Roberts explained why this decision of the Court is not law. If the Constitution had nothing to do with it, the Court had no jurisdiction to issue it. It is, therefore, a nullity.

In the words of Justice Felix Frankfurter, a brilliant jurist who understood the dangers of hubris on the highest court in the land — may Obergefell v. Hodges prove to be a “derelict on the waters of the law.” And it will be — but only if the American people rise up and resist this gross perversion of the rule of law.

Approximately one month ago, the U.S. Justice Foundation began to organize the writing and publication of a series of articles in a series entitled “Building the Resistance to Same-Sex Marriage.” This project was undertaken in the hope that the Supreme Court would not recklessly decide the same-sex marriage case–but nonetheless, we prepared for the worst; and sadly, the Supreme Court has disappointed us again. Hopefully over the coming weeks and months, state and local government officials and the people at large will be able to draw from these articles justification and techniques to resist the Supreme Court’s lawless decision.

In Article II, we established that the Fourteenth Amendment in no way addressed the issue of same-sex marriage. In Article III, Robert Reilly explained how poorly these cases have been litigated by government lawyers supposedly defending same-sex marriage. In Article IV, Pastor James Taylor explained the biblical and moral basis for traditional marriage. In Article V, Houston attorney J. Mark Brewer anticipated how courts will manipulate today’s rulings to penalize those in business and the professions who embrace biblical marriage. In Article VI, former Congressman John Hostettler explained that if a soldier has the duty to disobey an unlawful order, how could a state official not have that same duty? In Article VII, former federal magistrate Joe Miller discussed why it would be a violation of federal law and judicial ethics for Justices Ginsburg and Kagan to participate in the decision–yet both did so today.

In Article VIII, Pastor Matthew Trewhella provided a historical context for Christian resistance by lower government officials to illegal actions by higher government officials, known as “The Doctrine of the Lesser Magistrate.” In Article IX, we discussed the apparent efforts of the Supreme Court to bury the motion for recusal filed by the Foundation for Moral Law so that Justices Ginsburg and Kagan could more easily disregard their duty. In Article X, constitutional attorney Edwin Vieira explained how decisions like today’s decision violate the Constitution’s “good behavior” standard, leaving them susceptible to removal. In Article XI, former U.S. attorney Tom Ashcraft laid out the process by which Congress can limit the jurisdiction of federal courts, using the power Congress was expressly given in the U.S. Constitution. In Article XII, Senior Virginia Delegate Robert G. Marshall discussed how Congress could immediately use the Appropriations Power to prevent implementation of an unlawful decision such as that issued today. And lastly, in Article XIII, former Oklahoma Representative Charles Key described the responsibility and duty of every citizen, when serving on a jury, to decide both the facts and the law in every case, known as jury nullification.

This series of articles has demonstrated that a Supreme Court decision mandating same-sex marriage would be illegitimate. As Blackstone said, it would not just be bad law; it would be no law at all. That decision has now transpired. These articles also demonstrate that the American people and our elected officials have many ways to resist the unconstitutional decision of the Court. The question now is, will our political leaders abandon the true Constitution to embrace the decision of the Court?

In the coming days, we will continue to be releasing articles further discussing the justification for and techniques that can be used by Congress, state officials, and the American people to resist today’s unlawful decision. We urge supporters of traditional marriage to view today’s loss as a setback, but by no means a final decision of anything. The battle continues.


Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together, they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at traditionalmarriage@lawandfreedom.com or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

Same-Sex Marriage: Efforts To Have Justices Ginsburg And Kagan Recused Take A Troubling Turn

Not only will we soon know how the U.S. Supreme Court decides the issue of same-sex marriage in the Obergefell case — we will also know if the Court will follow federal law and its own judicial ethics rules in reaching that decision.

On June 17, 2015, former U.S. Magistrate Judge Joe Miller wrote and published an article calling for Justices Ruth Bader Ginsburg and Elena Kagan to recuse from participating in the consolidated same-sex marriage cases now pending before the U.S. Supreme Court on the ground of bias. In support, Miller noted that both justices had officiated in the marriage ceremonies of same-sex couples, and that Justice Ginsburg had gone so far as to strongly suggest in public that the time for same-sex marriage had arrived.

In the course of his article, Miller also reported that the Foundation for Moral Law, which had submitted a friend-of-the-court brief in favor of traditional marriage, had also submitted a motion in support of Justices Ginsburg’s and Kagan’s recusals. Importantly, Miller also reported that not only had the Court not ruled on the Foundation’s motion, but that the motion had not even been posted on the Supreme Court docket. While a delay in posting can occur for a number of reasons, none applied here. Did someone at the High Court not want to acknowledge that such a motion had been filed?

Now, we may have some indication that the U.S. Supreme Court uses Google Alerts because, shortly after the Miller article was published, on either June 17 or 18, 2015, the Foundation’s recusal motion suddenly appeared on the docket of the U.S. Supreme Court. Under a date of May 21, 2015, the entry read: “Request for recusal received from amicus curiae Foundation for Moral Law.” The new entry raises new questions.

First, the missing motion. The Foundation’s first motion to recuse consisting of eight pages was submitted on April 27, 2015 (and date and time stamped on April 27, 2015, at 11:47 a.m.) — a good three weeks before the Supreme Court claims that it was “received” on May 21, 2015. The Foundation for Moral Law later filed a second motion to recuse consisting of four pages on May 21 (date and time stamped on May 21, 2015, at 11:28 a.m.). The second motion was filed after Justice Ginsburg performed another same-sex wedding, and was to the effect of: “there, you did it again.” The second motion refers back to the first motion. Why is there only one entry on the Court’s docket sheets? What happened to the original motion?

Second, the name. The Foundation document is entitled a “Motion.” Why is it entitled on the docket as a “Request”?

Third, the action. According to the Court rules, a “Motion” is “filed” with the Court. Why is the action taken by the Court described only as “received” and not “filed”?

These points may appear to be minor – words that only lawyers would quibble over. But in reality, they suggest that the High Court, for an inordinate time, has ignored the recusal motion. While the Court has finally acknowledged that some recusal filing was made, it certainly gives no assurance that any ruling on the motion will be forthcoming before the Court decides the same-sex marriage case.

Federal law requires judges and justices to recuse from any case in which their impartiality “may reasonably be questioned….”  28 U.S.C. section 455. Moreover, Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court….” However, as this case is demonstrating, the Supreme Court appears to believe it is under no obligation to abide by that federal law and judicial Ethical rule.

First, while Justices Ginsburg and Kagan have an ethical duty to avoid commenting on cases, and a statutory duty to recuse when their impartiality “may reasonably be questioned,” as a matter of practice, each justice is the sole judge of her own case. While a decision of a lower federal court judge may be appealed to a higher authority, each U.S. Supreme Court Justice has the final word on his own fitness to serve. These two Justices should have addressed the question publicly prior to participating in oral argument (issue one and issue two) on April 28, 2015, but they did not. Since these two Justices ignored problems caused by their conduct, the remainder of the Court should have stepped in and addressed the issue for them–but the other seven Justices have remained silent.

Second, even now, the Foundation for Moral Law’s motion to recuse is not officially recognized by the High Court as being a motion, the docket sheets characterizing the motion as a mere “request.” Having no obligation to rule on a mere “request” — especially one that it represents was not even “filed” — Justices Ginsburg and Kagan would seem to be free to disregard the matter completely without obligation to give any reasons whatsoever why they could be impartial.

The effort to have Justices Ginsburg and Kagan recuse is not just a lonely one of former federal Magistrate Judge Joe Miller from Alaska and the Foundation for Moral Law in Alabama. It is also supported by the American Family Association, Vision America Action, the National Organization for Marriage, the U.S. Justice Foundation, and — in a story largely ignored by the mainstream media — supported by a unanimous vote of the Louisiana House of Representatives, as well as Louisiana Governor Bobby Jindal.

Should Justices Ginsburg and Kagan continue to disregard their apparent conflict of interest, the long-standing legal maxim that no one should be a judge in his own case again would be upended. And if the motion is then disregarded by the Court as a whole, to which it was addressed secondarily, the opinion of the two justices on their own fitness to participate in the vote would stand. In either event, for many people, continued inaction on these recusal motions will not only erode public confidence in the U.S. Supreme Court, but would call into question the constitutional legitimacy of its forthcoming same-sex marriage decision.


Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together, they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. In the recent same-sex marriage cases, they filed an amicus curiae brief in the DeBoer case in the Sixth Circuit, and another amicus brief in the Obergefell case in the U.S. Supreme Court. They now practice law together at William J. Olson, P.C. They can be reached at traditionalmarriage@lawandfreedom.com or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage” which appears on the USJF website. To support this important work, please make contributions to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

The Fourteenth Amendment Does Not Mandate Same-Sex Marriage

Within the month, the nation will receive the opinion of the U.S. Supreme Court as to whether the U.S. Constitution requires all of the states to jettison their domestic laws and sanction same-sex marriage. Numerous federal judges have so ruled, and most states have simply yielded to those federal court decisions. In a few cases, beginning with Vermont and Massachusetts, state courts ruled for same sex marriage; and state officials have passively accepted those decisions as well.

Generally, courts have ruled for same-sex marriage using either the “due process clause” or the “equal protection clause” of the Fourteenth Amendment, or both. That raises a simple question: is it really possible that when the Fourteenth Amendment was ratified in 1868, the framers intended that it sanction same-sex marriage? Of course not. The U.S. Constitution says nothing about same-sex marriage. Then, how could the Constitution be manipulated to support a decision in favor of same-sex marriage? Well it has not been easy. The Constitutional case for same-sex marriage is pathetically weak — unless you adopt the notion of an “evolving” Constitution, which is, of course, the polar opposite of the notion of our “written” Constitution.

There are actually four cases, all from the U.S. Court of Appeals for the Sixth Circuit, which have been consolidated for decision in the U.S. Supreme Court — Obergefell, DeBoer, Tanco, and Bourke. If you would like to know more about how this case developed, a great deal of information, and links to all documents, is available on SCOTUSblog. The amicus curiae brief which we filed in the Sixth Circuit in support of traditional marriage is available, as is the amicus curiae brief which we filed in the U.S. Supreme Court.

The opinion by Judge Sutton of the U.S. Court of Appeals for the Sixth Circuit — upholding traditional marriage against five challenges in four states — begins with a remarkable observation that should have resolved the case in that once sentence, but did not. Judge Sutton points out that “[n]obody in this case … argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014) (emphasis added).

Laymen logically deduce that if the Fourteenth Amendment as written had nothing to do with same-sex marriage, that’s the end of the matter. After all, Justice Douglas succinctly described the Amendment in his autobiography: “The Fourteenth Amendment was passed to give blacks first-class citizenship.”  William O. Douglas, The Court Years, p. 154 (Random House: 1980). But for those lawyers who want unelected judges to set the public policy of our nation, it simply doesn’t matter what the Framers intended. And neither does it matter to many judges who are all too willing to give effect to their own political views. Discovering the “authorial intent” of the Framers is only a small part of their concern — a step they sometimes skip over entirely.

Recently, Justice Alito observed that “[s]ame-sex marriage presents a highly emotional … question … but not a difficult question of constitutional law.” United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2714 (2013) (Alito, J., dissenting):

The Constitution does not guarantee the right to enter into a same-sex marriage.  Indeed, no provision of the Constitution speaks to the issue.  It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition.  [Id. at 2714-15.]

Therefore, Justice Alito explained that challengers to traditional marriage:

seek … not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges.  [Id. at 2715.]

If we are now considering a new right, one could legitimately ask when and where did this new right come from. Indeed, during oral argument in the case of Hollingsworth v. Perry, Justice Scalia asked this very question to same-sex marriage champion lawyer Ted Olson:

Justice Scalia:  “When did it become unconstitutional to prohibit gays from marrying?…  Was it always unconstitutional?”

Ted Olson:  “It was [un]constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control…”

Justice Scalia:  “I see. When did that happen?…”

Ted Olson:  “There’s no specific date in time.  This is an evolutionary cycle.”

Of course, a written constitution that is subject to evolutionary change is no longer a written constitution. A constitution that is always evolving provides no fixed guarantees for the rights of the people. If the “Due Process Clause” of the Fourteenth Amendment can morph into a mandate for homosexual marriage, then the “right to keep and bear arms” can become a right to call the police when attacked. Once we abandon the author’s meaning of a text, we are left treating the U.S. Constitution as poetry, asking “what does the Constitution mean to me?”

Unable to ground their challenge in the Fourteenth Amendment as written, the advocates of same-sex marriage have used an assemblage of fabrications, purportedly derived from this Court’s precedents, but without any support in fact or law.

One of the briefs in the Supreme Court asserted that the High Court has already established that “[t]he right to marry the person of one’s choice is a fundamental freedom.” The claim is patently false.

To the contrary, the Supreme Court has always assumed that marriage law was originally governed by the common law which required consummation between one male and one female. See Maynard v. Hill, 125 U.S. 190, 213 (1888). See also 1 William Blackstone, Commentaries on the Laws of England, 424 (Univ. Of Chi. Facsimile ed.: 1765).

The Court in Maynard explained: “though formed by contract … the relation of husband and wife, deriv[ed] both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make.” And “[w]hen formed,” the Court continued, the relation between husband and wife was “no more a contract than ‘fatherhood’ or ‘sonship’ is a contract.” Instead, marriage “partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” Thus, it is just pretense to claim that the Supreme Court previously established the right “to marry the person of one’s choice.”

Any such claim is a total fabrication designed to hide the fact that at the time the nation was founded, not only was same-sex marriage not legally sanctioned–but sexual relations between men constituted, as Sir William Blackstone declared: “the infamous crime against nature[,] a disgrace to human nature,” and punishable by death. 4 Blackstone’s Commentaries at 215-16.

In addition to this condemnation of “unnatural” sexual coupling, the English common law of marriage exclusively adopted the Biblical matrimonial order. First, the common law limited the relationship to one between “husband and wife,” that is, “baron and feme.”  I Blackstone’s Commentaries at 421.  And second, the common law made “voidable” any union between a man and a woman under the “canonical disabilities” of “consanguinity, or relation by blood; and affinity, or relation by marriage.” Id. at 422.  Thus, it is wildly false for Petitioners to presume, as they have, that there is a well-established right to marry any person of one’s choice.

The same-sex marriage proponents now ask the Supreme Court to take the nation one step further away from our written constitution, by fundamentally changing the meaning of its text based on the will of a bare majority of five lawyers serving on this Court, rather than complying with the exclusive process for amending the Constitution, as set out in its Article V. Freed from textual constraint, Professor Lino Graglia has observed that:

[o]ver the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society.  These include issues literally of life and death … and issues of public morality….  In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system….  [L. Graglia, “Constitutional Law Without the Constitution:  The Supreme Court’s Remaking of America,” in “A Country I Do Not Recognize” (R. Bork ed., Hoover Press 2005).]

Nearly two decades ago, Justice Scalia warned:

[t]his Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality … is evil.  [Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting).]

And, exactly as Justice Scalia predicted in Romer, the American people have seen a flurry of judicial opinions with “no foundation in American constitutional law” overturning laws which were “designed to prevent piecemeal deterioration of the sexual morality” desired by the People. These court opinions together constitute what he described as “acts, not of judicial judgment, but of political will.” Id. at 653.

As such, they are not just “bad law”; but as Blackstone stated, they are “not law” at all.



Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together, they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at traditionalmarriage@lawandfreedom.com or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

Assassin In Chief?

Angry Obama SC Assassin in Chief?

Exercising a power that no prior president ever thought he possessed — a power that no prior president is known to have exercised — President Obama admitted that he ordered the execution of American citizens, not on a battlefield, based on his belief that they were involved in terrorist activities.  It is known that at least three U.S. citizens, including a 16-year old boy, were killed on the president’s order in drone strikes in Yemen in 2011.

As the worldwide drone program ramps up, there have been increasing calls for the president to reveal the basis for his claimed authority.  Only a few weeks ago, U.S. District Court Judge Colleen McMahon denied both the ACLU’s and New York Times‘ requests under the Freedom of Information Act to obtain any and all legal documents prepared in support of the president’s claim of unilateral powers.  While Judge McMahon was concerned that the documents “implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws not of men,” she felt constrained by precedent to withhold them.  Now, a bipartisan group of 11 senators has written a letter to president Obama asking for “any and all legal opinions” that describe the basis for his claimed authority to “deliberately kill American citizens.”

However, not until the Senate began gathering information for hearings on John Brennan’s confirmation as CIA director, to begin February 7, has public attention finally been focused on this remarkable presidential usurpation of power.

On the night of February 4, the walls of secrecy were breached when NBC News released a leaked U.S. Justice Department White Paper entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force.”  Now we can see why the Department of Justice has been so reluctant to share the basis for its legal analysis.  It is deeply flawed — based on a perverse view of the Fifth Amendment Due Process Clause.  Additionally, the white paper completely ignores the procedural protections expressly provided in the Constitution’s Third Article — those specifically designed to prohibit the president from serving as prosecutor, judge, jury, and executioner.

The white paper does not seek to delimit the federal power to kill citizens, but simply sets out a category of “targeted killing” of American citizens off the battlefield on foreign soil which it deems to be clearly authorized.  Moreover, this power is not vested exclusively in the president, or even the secretary of defense, or even officials within the Department of Defense — rather, it can be relied on by other senior officials of unspecified rank elsewhere in government.

According to the white paper, there are only three requirements to order a killing.  First, “an informed high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”  Second, capture is “infeasible.”  And third, the ” operation would be conducted in a manner consistent with the applicable law of war principles.”  Indeed, from the white paper, it is not clear why killings of U.S. citizens on American soil would be judged by a different standard.

Mimicking a judicial opinion, the White Paper employs pragmatic tests developed by the courts to supplant the plain meaning of the Fifth Amendment Due Process and Fourth Amendment Search and Seizure texts.  Balancing away the constitutionally protected interests of the citizen in life, liberty, and property against the more important “‘realities’ of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack,” the Justice Department lawyers have produced a document worthy of the King Council’s Court of Star Chamber — concluding that the U.S. Constitution would not require the government to provide notice of charges, or a right to be heard, “before using lethal force” on a U.S. citizen suspected of terrorist activity against his country.  How very convenient.  The Obama administration lawyers appear to have forgotten that the Star Chamber was abolished by the English Parliament in 1641 in order to restore the rule of law adjudicated by an independent judiciary, terminating the rule of men administered by the king’s courtiers.

Also, conspicuously missing from the Justice Department’s constitutional analysis is any recognition that the Founders already balanced the life, liberty, and property interests of an American citizen suspected of “levying war against [the United States], or in adhering to their enemies, giving them aid and comfort,” and provided them the specific procedural protections in Article III of  the Constitution.  When a U.S. citizen is suspected of treason, the constitutional remedy is not to invent new crimes subject to the summary execution at the pleasure of the president and his attorneys.  In Federalist No. 43, James Madison proclaimed that the Treason Clause would protect citizens “from new-fangled and artificial treasons … by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it[.]“  To that end, the Constitution does not permit the Obama lawyers to invent an elastically defined offense of “an imminent threat of violent attack against the United States,” in substitution for the constitutionally concrete definition of “levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.”

Moreover, Article III, Section 3 of the Constitution requires trial in “open court” — not in some secret “war room” in an undisclosed location.  That same section of Article III requires proof by “the testimony of two witnesses to the same overt act, or on confession” — not by a unilateral “determin[ation] that the targeted individual poses an imminent threat of an attack against the United States.”  Finally, as is true of “all crimes,” Article III, Section 2 requires “trial … by jury” on a charge of treason, not trial by some unidentified “high-level official of the U.S. government[,]” no matter how well-”informed” he may be.  In short, the Constitution provides that an American citizen must be tried and punished according to the judicial process provided for the crime of treason, not according to some newfangled and artificial executive “process” fashioned by nameless collection of lawyers.

These nameless lawyers have also ignored the Justice Department’s own venerable precedents.  The White Paper relies on the “laws of war” — but laws of war do not control here.  On August 21, 1798, U.S. Attorney General Charles Lee — serving under President John Adams — directed to the U.S. secretary of state an official opinion in which he determined that in the undeclared state of war between France and the United States, “France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen[, who] may be tried and punished according to our laws[, not like a French subject, who must be] treated according to the laws of war.”

It is a measure of how far we have fallen as a nation — not only that President Obama asserts and exercises such a terrible power, but that only 11 U.S. senators would be willing to affix their names to a letter to ask the Obama administration to provide its legal reasoning.  If John Brennan is confirmed as CIA director, and the killings of U.S. citizens continue based on this whitewash of a white paper, then the U.S. Senate will have yielded up to the president without even a fight the power to kill citizens without judicial due process — a power that has been unknown in the English-speaking world for at least 370 years.


Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They filed an amicus curiae brief supporting a preliminary injunction in the Chris Hedges challenge to the detention provisions of the National Defense Authorization Act of 2012 (“NDAA”), addressing the Treason Clause, and also filed an amicus curiae brief in that case in the U.S. Court of Appeals for the Second Circuit.  They can be reached at wjo@mindspring.com or twitter.com/olsonlaw?


Photo credit: SS&SS (Creative Commons)


Arizona V. United States: Reading The Tea Leaves Of Oral Argument

US supreme court building SC 236x300 Arizona v. United States: Reading the Tea Leaves of Oral Argument

On April 25, 2012, the U.S. Supreme Court heard oral argument in Arizona v. United States, involving the constitutionality of the State’s effort to combat illegal immigration. In one sense, it was a rematch between former Solicitor General Paul Clement, arguing for Arizona, and the current Solicitor General, Donald Verrilli, contending for the United States. The two had squared off just a month before in United States v. Florida, the battle royale over the constitutionality of the ObamaCare mandate requiring everyone to purchase health care insurance prescribed by the federal government.

In each case, the justices, by their questions and comments, appeared to disfavor the Obama administration’s position. In the ObamaCare case, several justices expressed concern that, if the individual mandate were to be found constitutional, it would dismantle the federal system, rendering the Tenth Amendment reservation of powers to the States and the people a dead letter. Now, in the Arizona immigration case, several justices expressed concern that the Obama Administration’s claim of “exclusive power” to regulate immigration would have a similar impact on the independence and sovereignty of the 50 states.

The issue arose early in the oral argument, even before the solicitor general could make his claim of exclusivity. Justice Scalia kicked off, asking Mr. Clement whether he would concede “that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing … and the State has no power to close its borders to people who have no right to be there.” Remarkably, Mr. Clement did not answer the justice’s inquiry with a firm no, prompting Justice Kennedy to inquire: “Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?” This time Mr. Clement answered: “I think my answer to that is no.” But he did not back up his answer with either reason or conviction, resting Arizona’s case on the sole ground that the state has the constitutional right to help the federal government to enforce federal law.

In contrast, General Verrilli boldly rejected Mr. Clement’s basic argument that the Arizona immigration law was nothing more than the state “aid to Federal immigration enforcement,” when as a matter of fact, “Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State. That is something Arizona cannot do because the Constitution vests exclusive –”

Before General Verrilli could finish his sentence, Justice Sotomayor asked him to “answer Justice Scalia’s earlier question…whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove … from its borders a person who’s here illegally.” Given the opportunity to finish his sentence, General Verrilli stated: “It is our position [that] the Constitution vests exclusive authority over immigration matters with the national government.”

In response, Justice Scalia jumped back into the fray, noting, first, that the constitutional grant of exclusive authority is over “naturalization which we’ve expanded to immigration”:
But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Undaunted, General Verrilli pressed forward, asserting that “the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.” Citing the import/export provision in Article I, Section 10, Clause 2, Justice Scalia fired back:
The Constitution recognizes that there is such a thing as State borders, and the States can police their borders, even to the point of inspecting incoming shipments to excluded diseased material.

Thereafter, Justice Scalia and General Verrilli would clash several times, with the general sticking to his claim of national exclusivity over immigration as essential because of “significant real and practical foreign relations effects,” culminating in the general’s calling attention to “Mexico[‘s] central role in this situation,” to which Justice Scalia retorted: “So we … have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”

No doubt, Arizona’s cautious approach was dictated by its decision not to challenge what Justice Scalia described as what “we’ve” — that is, the Court — read into the Constitution concerning the power of Congress over immigration.

Our firm filed two amicus curiae briefs in the Supreme Court in this case supporting Arizona — one last September at the petition for certiorari stage, and one this February on the merits. Our clients on these briefs are U.S. Border Control, U.S. Border Control Foundation, Policy Analysis Center, Institute on the Constitution, The Lincoln Institute for Research and Education, Conservative Legal Defense and Education Fund, Gun Owners of America, Inc., Gun Owners Foundation, English First, English First Foundation, Virginia Delegate Bob Marshall, Oklahoma Representative Charles Key, and Wyoming Senator Kit Jennings.

Our amicus brief in support of Arizona did what Arizona chose not to do — explain the Founders’ original constitutional plan.

First, we pointed out that the federal government’s power over immigration is not among those enumerated in the Constitution, but one that has been grafted onto the “naturalization” power by the Court as a power “inherent in sovereignty, and essential to preservation.”

Then, we argued that as a nation of dual sovereignty each State, like the national government, has the same inherent power of sovereignty, including the power of self-preservation.

Third, we noted that while the national government’s power was supreme in the regulation of its international boundaries, the States’ internal boundaries remained in the power of the States.

Finally, we observed that, with respect to a state’s internal boundaries, Article IV, Section 2 and the Fourteenth Amendment expressly limited each state’s power as applied to citizens of other states and citizens of the United States, but not with respect to citizens of foreign nations.

Justices Scalia and Kennedy’s questions seemed to track our brief’s line of reasoning, asking whether Arizona had the power to exclude aliens who are not legally in the country. If so, then Arizona’s policy of enforcement by attrition is perfectly permissible, General Verrilli’s claims to the contrary notwithstanding.

If Arizona has retained its inherent sovereign authority to defend its internal borders, except as specifically limited by the Constitution, then not one of the four contested provisions of the state’s immigration law is preempted by federal law.

First, the overall purpose of the law is constitutional in that it is predicated on an incontestable “interest in the cooperative enforcement of federal immigration laws … to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Such unlawful presence threatens the integrity of Arizona as a political and economic community, enhancing the risk of voter fraud and decreasing economic opportunities for Arizona citizens and their fellow Americans.

Second, sections 2(B) and 6 are designed to aid federal immigration enforcement, and are in harmony with federal statutes as written by Congress. Such provisions are not subject to pre-emption because Arizona’s priorities may differ from those of the executive department of the federal government. Pre-emption can never be based upon the discretionary policies of enforcement, as the Obama administration has argued here.

Third, section 3 of the law simply makes it a state crime not to comply with the federal law requiring all aliens to carry an alien registration card. This is not at all different from the state duplicating federal law prohibiting bank robbery. Furthermore, the State has a sovereign interest in identifying whether a person is a U.S. citizen because the Fourteenth Amendment provides that every resident of the state who is a U.S. citizen is, by definition, a citizen of the state.

Fourth, section 5(C), which imposes penalties on illegal aliens seeking employment in Arizona, is consistent with the exercise of its police power to preserve Arizona jobs for those persons who are lawfully part of the state’s economic and political community. While the federal law only penalizes employers of illegal aliens, Arizona’s interest in preserving jobs for persons lawfully in the state is necessary to preserve the public fiscal and the economic vitality of business within the state.

If the Arizona case is decided according to the measure of the Supreme Court’s jurisprudence in this area as argued narrowly by Arizona, the decision could be very much in doubt. However, if the case is decided based on the Founders’ plan for a robust role for the states and a limited role for the federal government, the decision should uphold the Arizona law.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. Bill Olson served in three positions in the Reagan administration. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They can be reached at wjo@mindspring.com or on Twitter @Olsonlaw.

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