Cruz Control?

Of the entire GOP presidential field, I think the candidate with the best or most substantive grasp of the constitutional defects of the administrative state—the term for our unaccountable “fourth branch” of government that increasingly governs us without our consent—is Ted Cruz. (If Tom Cotton were running for president, he’d get the clear nod on this point, but perhaps some day. . .)

At the very least, Cruz knows enough about the separation of powers to make the bold suggestion that some states have a legal basis to ignore or resist the Supreme Court’s Obergefell decision legalizing gay marriage. As Politico reported last week:

“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday. Since only suits against the states of Ohio, Tennessee, Michigan and Kentucky were specifically considered in the Supreme Court’s Obergefell v. Hodges decision, which was handed down last Friday, Cruz — a former Supreme Court clerk — believes that other states with gay marriage bans need not comply, absent a judicial order.

Politico goes on to say that “Cruz’s statement may be technically true,” which is another way of saying that Cruz is right, isn’t it? Well, not quite: the last four words of the previous paragraph—“absent a judicial order”’—are crucial. It is a mere formality for someone to go into federal district court and ask for a writ to overturn a state’s laws restricting marriage to one man and one woman, and lower court judges will have to apply the holding of Obergefell.

But that isn’t the end of the story. Cruz is on to something larger here. He’s trying to channel Lincoln’s attempt to confine the damage of the Dred Scott case in his first inaugural address:

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all l cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

Clearly anyone seeking a same-sex marriage license in a state who was not party to the Obergefell suit falls under what Lincoln would call a “parallel case.” But what about someone who runs to federal court or a state marriage license bureau, and holds up Obergefell’s doctrine of “dignity” on behalf of, say, polygamy? Must the court or marriage license bureau shrug their shoulders and say, “Well—I guess so”?

When Lincoln arrived in the White House in 1861, he found two executive branch decisions to which he objected. A free black man in Boston had applied to the State Department for a passport to travel to France, which the State Department had denied on the ground that the Supreme Court, in Dred Scott, had declared that blacks could not be citizens because blacks “had no rights which the white man was bound to respect.” And in Philadelphia, a free black man had applied to the Patent Office for an invention, and been denied on the same ground. Lincoln ordered both decisions reversed.

I often tell this story to my students in classes on the Constitution, with the question appended: “Was Lincoln defying the Supreme Court? Did he act unconstitutionally?” It is amazing—and depressing—that the overwhelming majority of my students get the answer wrong. Such is an example of how deep the idea of judicial supremacy—“the Constitution is what the Supreme Court says it is,” as the Court self-congratulated in Cooper v. Aaron—has crept into the public mind today.

Look again at Lincoln’s careful language in that passage above. He is saying that the reasoning of Dred Scott must be respected as to the parties of that particular case and in parallel cases (i.e., a slave owner who brings his slave into a free state, as Dred Scott’s owner had done). But in his decision to reverse the executive branch decisions supposedly based on Dred Scott in circumstances that were not parallel—both were free blacks in free states, with no one asserting ownership claims to them—Lincoln was asserting that the executive branch was not obligated to extend the principle of the Dred Scott case more broadly. The Constitution belongs to all three branches of government, each of which may assert its constitutional prerogatives in its own sphere—pending a legal challenge in the courts that concludes otherwise.

Good for Cruz for sticking up for constitutional rectitude, though as I say I think he’s stretching it a bit here. But his general point is solid, because you can be sure that there will be people asking to extend Justice Kennedy’s reasoning about “dignity” on behalf of all kinds of “rights” beyond marriage, and governors and state legislatures will be on solid ground to resist.

Perry Sense

While Donald Trump continues to get disproportionate attention for his correctly grounded—if not well formulated—attacks on out of control immigration, Texas Gov. Rick Perry is quietly emerging as a much more serious candidate. Worth catching the excerpts of his remarks on race and economic opportunity that he delivered at the National Press Club last Thursday.

The Wall Street Journal editorializes on it today:

[Perry’s] remarks are far more than a mea culpa. He also lays out a rationale and a specific agenda for how the GOP can earn—and deserve—the support of black Americans. In particular he points out how Republican policies have improved life for all races in Texas. And he contrasts those results for blacks in progressive states that purport to do so much more for minorities but have left them behind economically.

In particular I relished this part of Perry’s aggressive analysis:

There is a lot of talk in Washington about inequality. Income inequality. But there is a lot less talk about the inequality that arises from the high cost of everyday life. In blue state coastal cities, you have these strict zoning laws, environmental regulations that have prevented builders from expanding the housing supply. And that may be great for the venture capitalist who wants to keep a nice view of San Francisco Bay, but it’s not so great for the single mother working two jobs in order to pay rent and still put food on the table for her kids.

There’s a huge opportunity for conservatives if they will but attempt to grasp it. I recall with glee the day I appeared on a panel on “Environmental Justice” at the University of Colorado at Boulder’s annual “Diversity and Inclusion Summit.” (Stop guffawing: I was the diversity and inclusion that year.) Of course, most of the other panelists wanted to talk about chemical companies deliberately poisoning their neighbors, or the predations of those two brothers from Kansas, or whatnot. But what most of the minorities in attendance at the session wanted to talk about was high housing prices in Boulder that required them to live elsewhere and have long commutes to work.

Boulder, like much of coastal California, has long had very restrictive land use policies in place to preserve open space and quality of life. The mania for open space is so deep that the town even went so far as to purchase land in an adjacent county to keep it from being developed.  Fine and nice if you are a prosperous Boulderite, but the “disparate impact” is obvious.

I always have fun pointing this out; the “environmental justice warriors’ change the subject as fast as they can (Look! Koch-funded squirrels!), or propose some ridiculous regulatory scheme that amounts to housing rationing.

Beyond this particular point, a competent conservative politician ought to be able to make some hay out of the fact that blacks are moving in large numbers from states liberals run to southern states that conservatives run—you know, those states supposedly soaked in racism. Perry does exactly this:

From 2005-07 more African-Americans moved to Texas than all but one other state, that state being Georgia. Now, many were coming from blue states like New York and Illinois and California. Many came from Louisiana, where they had lost their homes due to Hurricane Katrina. But each one of those new residents was welcomed to Texas with open arms. They came to a state with a booming economy. We kept taxes low, regulations low, we kept frivolous lawsuits to a minimum. . .

If we create jobs, incentivize work, keep nonviolent drug offenders out of prison, reform our schools, and reduce the cost of living—we will have done more for African-Americans than the last three Democratic administrations combined.


This could be a very effective way of calling out the left on their egregious race-baiting. Understand that the left has to race-bait not just for ideological reasons, but for sheer self-preservation. The left understands that Republicans don’t need to win a majority of the black or Hispanic vote to prosper; the GOP only needs to increase its share—say to 20 percent of the black vote and 40 – 45 percent of the Hispanic vote—and it will be all over for the Democratic Party.  Several blue states would flip back to the GOP in presidential elections.

Perry has clearly learned from his ill-fated 2012 run.  Keep your eye on him. I’ll bet he surprises in one of the early debates.

Gelernter on fire

David Gelernter is an old-fashioned Renaissance man. He is professor of computer science at Yale University, chief scientist at Mirror Worlds Technologies, contributing editor at the Weekly Standard and member of the National Council of the Arts (more here). We have proudly hosted several of his thoughts on the present discontents.

Professor Gelernter is the author of books that suggest a kind of Herodotean interest in everything human. Professor Gelernter has written a history of the 1939 World’s Fair. After he survived an attack by the Unabomber, he wrote a reflective book about that. His is also the author, most recently, of America-Lite.

A while back the Weekly Standard carried Professor Gelernter’s article “The Roots of European Appeasement.” Among his provocative observations in the piece was this timely statement:

Once upon a time we thought of appeasement as a particular approach to Hitler. We have long since come to see that it is a Weltanschauung, an entire philosophical worldview that teaches the blood-guilt of Western man, the moral bankruptcy of the West, and the outrageousness of Western civilization’s attempting to impose its values on anyone else. World War II and its aftermath clouded the issue, but self-hatred has long since reestablished itself as a dominant force in Europe and (less often and not yet decisively) the United States. It was a British idea originally; it was enthusiastically taken up by the French. Today (like so many other British ideas) it is believed more fervently in continental Europe than anywhere else.”

Now Professor Gelernter joins Bill Kristol in the latest installment of Bill’s Conversations (video below, about an hour). The video is also posted and broken into chapters here; the transcript is posted here. I will limit myself to saying that Professor Gelernter is on fire on the subjects covered in this conversation and that it is worth your time.

Quotable quote: “Students today are so ignorant that it’s hard to accept how ignorant they are. It’s hard to grasp that [the student] you’re talking to, who is bright, articulate, interested, doesn’t know who Beethoven was. Looking back at the history of the 20th Century [he] just sees a fog. Has [only] the vaguest idea of who Winston Churchill was or why he mattered. No image of Teddy Roosevelt. We have failed [them].”

Goodnight Vienna (5)

Omri Ceren writes from Vienna regarding the catastrophic deal in process with the Islamic Republic of Iran:

Happy Monday from Vienna. The EU’s foreign affairs chief Federica Mogherini arrived yesterday and told reporters: “As you know I have decided to reconvene the ministers. They will be arriving tonight and tomorrow. It is the third time in exactly one week. That’s the end, the last part of this long marathon.” Secretary of State John Kerry and Iranian Foreign Minister Javad Zarif already held an impromptu meeting this morning. The overarching consensus – which is almost certainly correct – is that whatever gets announced will be announced no later than tomorrow afternoon. It might very well happen tonight.

As to what that announcement might be, there are a few options. In order of increasing probability:

0 percent chance: Kerry might make good on the comments that he made yesterday to reporters, and walks away from a bad deal.

Very low probability: the parties might come to a full-blown agreement ready to be implemented immediately. This scenario was never likely by June 30, and became functionally impossible after Supreme Leader Ayatollah Ali Khamenei set out a range of new red lines a few weeks ago. Also, the Iranians gave a background briefing earlier today in Vienna where they provided their interpretation of an emerging final deal. Among other things they have some interesting views on what military-related restrictions will be lifted, which are in tension with how the Americans have been describing the deal. Those differences will have to be overcome, and they won’t be in the next few days.

Low-probability: the gaps might still be too significant to even colorably announce a deal, and the parties would extend the interim agreement all the way through the summer. The option would be more attractive to the Obama administration than taking another 2 or 3 weeks. If the administration sends Congress a deal after July 9 then the Corker clock – how long a deal sits in front of Congress – goes from 30 days to 60 days. But if they get all the way through the summer, it goes back down to 30 days. The administration has obvious reasons to prefer that.

Most likely: there will be a non-agreement agreement. The parties will announce they’ve resolved all outstanding issues but they still have to fill in some details. Then the P5+1 and Iran would move in parallel to implement various commitments, and the Iranians would in particular have to work with the IAEA on its unresolved concerns regarding Iran’s weapons program (PMDs). In the winter the IAEA would provide a face-saving way for the parties to declare Iran is cooperating – IAEA head Amano said earlier this week that the agency could wrap up by the end of the year if Iran cooperates – and then deal would officially begin. The option is attractive to the administration because it puts off granting Iran all of its anticipated sanctions relief until the IAEA makes some noises about the Iranians cooperating. The alternative would be poison on the Hill. This way the administration can tell Congress that of course PMDs will be resolved before any sanctions relief is granted; and after Congress votes, if the Iranians jam up the IAEA but demand relief anyway, lawmakers will have no leverage to stop the administration from caving.

The focus will then shift to Congress, where the debate on approving or disapproving of the deal will take place over the next month. Some of the questions will get technical and tangled – the breakout time debate is going to be mind-numbing – but lawmakers will also use a very simple metric: is the deal the same one the President promised he’d bring home twenty months ago? Back then the administration was very clear about what constituted a good deal and emphatic that U.S. negotiators had sufficient leverage to secure those terms. The U.S. subsequently collapsed on almost all of those conditions, and lawmakers will want to know how the deal can still count as a good one.

In line with those questions, see the Foreign Policy Initiative summary on where the administration started and how dramatically it has moved backwards. From the overview of the analysis:

Over the past three years, the Obama administration has delineated the criteria that any final nuclear agreement between the P5+1 and Iran must meet. In speeches, congressional testimony, press conferences, and media interviews, administration officials have also articulated their expectations from Tehran with repeated declarations: “No deal is better than a bad deal.” This FPI Analysis… compiles many of the administration’s own statements on nuclear negotiations with Iran over the past three years, and compares them with current U.S. positions. It also examines U.S. statements on a range of other issues related to U.S. policy toward Tehran, and assesses whether subsequent events have validated them.

The web version of the FPI summary [linked above] has embedded links for each of these statements…

Dems loves Sanchez

KathrynSteinle Over the weekend I posted excerpts of news accounts of the murder of Kate Steinle by five-time Mexican deportee at San Francisco’s Pier 14. The murder took place this past Friday. I inferred from the news accounts on Saturday that San Francisco law enforcement’s failure to abide by ICE’s immigration detainer on Sanchez when he was released from custody this past March resulted from San Francisco’s sanctuary-city policy, but I wasn’t sure about it.

Now we know. Sanchez should have been deported months ago. The San Francisco County sheriff’s department doesn’t honor ICE detainers under the city/county sanctuary-city policy.

Sanchez, incidentally, has admitted to shooting Steinle. You can view his statement to ABC7 News here. It was all an accident, of course, and he was only here looking for work. He’s the kind of illegal alien for whom San Francisco’s sanctuary city policy was fashioned.

At FrontPage, Matthew Vadum now summarizes the state of our knowledge regarding this way:

Federal authorities had Lopez-Sanchez in custody in March after he was set free from a federal prison. They transferred him to San Francisco authorities because he was wanted by them on drug-related charges. The feds filed what’s called an “immigration detainer” requesting that the local authorities notify them before releasing the man.

But San Francisco, home of the most militant leftists in America, refused the request because local policy forbids it. The prisoner in effect got a “get out of jail free card” from the left-wing open-borders movement which argues that keeping illegals in jail violates their constitutional rights.

The whole “sanctuary city” phenomenon follows from current Democratic Party orthodoxy. Vadum notes the cities that have adopted such a policy. All of them, of course, are Democratic Party strongholds:

The list of sanctuary cities is long and growing longer. A list compiled by an activist shows there are at least 30 in California alone including Oakland, San Bernardino, San Francisco, Los Angeles, and San Diego.

Other major sanctuary cities across the country are Albuquerque, Baltimore, Chicago, Dallas, Denver, Detroit, Houston, Miami, Minneapolis, New Orleans, New York, Philadelphia, Pittsburgh, Providence, Salt Lake City, Seattle, and Washington D.C.

It goes without saying that Barack Obama and Nancy Pelosi should be asked for comment on the Sanchez affair. Do they have any second thoughts about sanctuary-city policies? Democrats across the country should be asked. Democratic Party presidential candidates in particular should be asked. Let’s hear it.

Netanyahu’s take

The state of Israel obviously cannot afford the lies and self-delusions that support the catastrophic deal in process with Iran. Prime Minister Netanyahu addressed it yesterday (in Hebrew, video here) at the start of his weekly Cabinet meeting. His office has posted this excerpt in English:

It seems that the nuclear talks in Iran have yielded a collapse, not a breakthrough. The major powers’ concessions are increasing. The deal being formulated will pave Iran’s path to the production of very many atomic bombs and it will also channel to Iran hundreds of billions of dollars that will serve its aggression and terrorism campaigns in our region and around the world.

This is a bad deal. It is not less bad – in my opinion it is worse – than the deal with North Korea that led to a nuclear arsenal in North Korea. But this is both a non-conventional threat, and a very large conventional threat, against Israel, the countries of the region and the world.

Democratic Party Journalists Aren’t Fooling Anyone

The Newseum Institute’s annual survey on the state of the First Amendment was released on Friday. You can read the results here. There are lots of interesting findings, although, as with any single survey, they should be taken with a grain of salt.

Support for the First Amendment is high and rising, with only 19% saying the amendment “goes too far,” while 75% disagree. Of course, these numbers are of limited significance, since only a tiny minority of Americans can correctly name the freedoms guaranteed by the First Amendment.

The most striking finding, to me, is the American public’s complete lack of faith in the news media. This was the question:

Please tell us if you agree or disagree with the following statements:

Q.3 Overall, the news media tries to report the news without bias.

In response, only 24% agreed that the news media try to report the news without bias, while a whopping 70% disagreed. Here are the numbers from 2004 to the present:

Screen Shot 2015-07-06 at 10.40.50 AM

Note what a harsh indictment this is: 70% of Americans (in this poll, at least) say the news media don’t even try to be unbiased. They are, in other words–as Glenn Reynolds likes to say–Democratic operatives with bylines.

As for the 24% who express a touching faith in the nation’s reporters and editors, I would guess that most are Democrats who know perfectly well what is going on, but choose to support their party’s press arm when answering questions from pollsters.

The problem for Democrats is that reporters, having lost virtually all of their credibility as objective observers, can be of only limited value to the party in the near future.