I gave a fairly provocative talk a week or so ago to the Texas Federation of Republican Women (TFRW) in Austin on the two factors that, in my opinion, have led to our dysfunctional government. I identify two areas where our system of checks and balances has gone into the ditch: First, the states have abrogated their duty to be the first and best check against federal power (see 9th and 10th Amendments), and second, the courts have asserted a completely unconstitutional doctrine of judicial supremacy, and the states, the Executive Branch and the Legislative Branch have meekly complied because it absolves them of their responsibilities under the Constitution.
Once you get your head around the idea that the Supreme Court was never supposed to rule the country, it's like the scales fall from your eyes, and you can see not only the cause of so many of our current problems, but also the solution.
I've been asked for my notes by several people, and the problem is my notes are speaking cues, nothing more. But I've attempted to clean them up a bit and post them here, mainly because there are current issues like the census question and the Trump administration's immigration orders that I think are clear examples of unconstitutional deference to the courts.
So here they are. Hope they are useful and intelligible to someone.
. . .
Occasionally I give talks to groups about the problem of judicial supremacy—the unconstitutional doctrine that the Judicial Branch has unique power to interpret the Constitution and can overrule the other two branches and overrule the states without question.
Anyway, because this is a hobby horse of mine, my eyes were riveted to some of Justice Scalia's last writings—specifically, his dissent in the Obergefell case (same-sex marriage). The point of this language has nothing to do with same-sex marriage—it has to do with whether courts actually have us much power under the Constitution as we have allowed them to assert.
In my opinion, Scalia left us a coded hint in his dissent on the gay marriage decision. It concludes:
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
What I think Scalia is suggesting is that the Founders purposely designed the Court without the power to enforce its opinions, and that states and the other two branches of the federal government actually have more power to simply ignore SCOTUS decisions than they know they have.
What, for instance, would happen if a state simply decided to ignore a controversial SCOTUS case? What would happen if a president simply ignored a nationwide injunction issued against the Exective Branch by some mid-level judge in Washington State? What, exactly, would happen?
After sending out my 29 tweets on local control, which were all theory, I sent out these 14 specific implications of coming to understand that local control is a false doctrine:
That was all theory. Now, implications (1/14) #txlege
The state can limit the ability of municipalities to tax, including property taxes and sales taxes (2/14) #txlege
The state can limit the ability of municipalities to establish protected classes and so-called “non-discrimination” ordinances. (3/14) #txlege
The state can limit municipalities from passing plastic bag bans and tree ordinances (4/14) #txlege
I'm working on a paper in which I lay out all my arguments against the idea that local control is some kind of sacred government principle, and that states have no right to pre-empt local governments from doing pretty much whatever they want to do.
I had hoped to have the paper done before the start of Texas' special legislative session, but I had hoped to have it finished before the start of Texas' regular legislative session back in January, too, and that didn't happen either.
So I decided to post some of the most important points last night in a series of Twitter posts. But since Twitter must be the stupidest platform for lengthy, organized arguments, I'm posting them here in this blog as well.
This post contains the 29 tweets that lay out the general argument. In a second post I'll list the 14 additional tweets that lay out some implications of the argument.
1. [begin local control rant] #txlege
I've just received a copy of the lawsuit from the State of Tennessee against the Federal Communications Commission (FCC) for the FCC's order that attempts to overturn laws passed in states regulating municipal broadband networks in those states.
The argument is pretty clear and straightforward, as indeed I think it is. This is a most blatant violation of federalism. There is no constitutional grounds for a federal regulator to think it can overturn laws passed by the duly elected legislatures of the states.
In the Order, the FCC preempts Tennessee law pertaining to the operation of municipal electric plants, including the Electric Power Board of Chattanooga, an instrumentality of the City of Chattanooga, created and controlled by the State of Tennessee. In doing so, the FCC has unlawfully inserted itself between the State of Tennessee and the State's own political subdivisions. The State of Tennessee, as a sovereign and a party to the proceeding below, is aggrieved and seeks relief on the grounds that the Order 1) is contrary to the United States Constitution; 2) is in excess of the Commission's authority; 3) is arbitary, capricious and an abuse of discretion within the meaning of the Administrative Procedures Act; and 4) is otherwise contrary to law. . . . Accordingly, the State of Tennessee respectfully requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and provide such additional relief as may be appropriate.
Total Records: 6