A ques­tion of law­ful au­thor­ity

For lib­er­als it’s fine to run out­side the base­lines when the cause is theirs

The Washington Times Daily - - OPINION - By Robert Knight Robert Knight is a se­nior fel­low for the Amer­i­can Civil Rights Union.

Base­ball sea­son gets un­der­way this week, a wel­come dis­trac­tion from the po­lit­i­cal bat­tles in Washington. The U.S. Se­nate is war­ring over the con­fir­ma­tion of Supreme Court nom­i­nee Neil Gor­such. The Repub­li­cans say he’s a stel­lar nom­i­nee, a ju­di­cial um­pire who calls balls and strikes as he sees them. Democrats, led by New York’s Charles Schumer, how­ever, say the judge is a crea­ture of “spe­cial in­ter­ests” who would slide into a base with spikes up and who de­serves to be fil­i­bus­tered.

Who are those “spe­cial in­ter­ests” you might ask? Well, they would be any­one who dis­agrees with pro­gres­sives, which the Novem­ber elec­tion in­di­cated is at least half the coun­try if not more.

The Repub­li­cans say Judge Gor­such will help the Court re­turn to con­sti­tu­tional prin­ci­ples. Democrats claim that he will “undo the gains” made by decades of lib­eral ju­rispru­dence.bWe can only pray that they’re both right.

Over the years, fed­eral courts — es­pe­cially the Supreme Court — ac­quired an out-sized role in the na­tion’s af­fairs, es­pe­cially dur­ing Franklin Roo­sevelt’s ad­min­is­tra­tion. Think of the fed­eral gov­ern­ment as a three-bod­ied crea­ture, with one of the bod­ies in a black robe tow­er­ing over the oth­ers with a gi­ant Nancy Pelosi gavel.

Re­strain­ing the Supreme Court’s power, even slightly, has been a non-starter. Congress is packed with lawyers who dream of serv­ing on or be­fore the high­est bench some­day. It’s also an open se­cret that many politi­cians are re­lieved when hot but­ton is­sues slide off their plates and di­rectly onto the Court’s docket.

Nonethe­less, given the Court’s near-om­nipo­tence, the cen­tral ques­tion of what con­sti­tutes law­ful au­thor­ity will dom­i­nate pub­lic dis­cus­sion in years to come, es­pe­cially if there is a con­ser­va­tive ma­jor­ity. Right now, “law­ful au­thor­ity” is in the eye of the be­holder on many lev­els.

For ex­am­ple, pro­gres­sives ap­plauded a fed­eral judge in Washington State in Fe­bru­ary for over­rul­ing Pres­i­dent Trump’s or­der tem­po­rar­ily bar­ring im­mi­grants from seven ter­ror-prone Mus­lim-ma­jor­ity na­tions. The judge snapped his fin­gers, ex­tend­ing con­sti­tu­tional rights to for­eign­ers not even in this coun­try and ac­cused Mr. Trump of racist mo­tives for good mea­sure. An­other judge in Hawaii piled on last week by rul­ing against Mr. Trump’s re-writ­ten or­der af­fect­ing six coun­tries. Pro­gres­sives again cheered.

On the other hand, when a fed­eral judge in Texas ruled in 2015 that Pres­i­dent Obama had usurped con­gres­sional au­thor­ity with ex­ec­u­tive ac­tions shield­ing five mil­lion il­le­gal im­mi­grants from de­por­ta­tion, pro­gres­sives pledged re­sis­tance and urged peo­ple to take to the streets.

Pro­gres­sives look with fa­vor on the 500 or so “sanctuary” cities that refuse to co­op­er­ate with fed­eral im­mi­gra­tion laws and pro­ce­dures. Con­science, they say, overrides mere law­ful­ness. Ex­cept, of course, when it comes to Chris­tian bak­ers, florists, wed­ding plan­ners and pho­tog­ra­phers. They must be forced by law to vi­o­late theirs.

Only a few months ago, pro­gres­sives cheered an edict from the Obama ad­min­is­tra­tion ordering all school sys­tems in Amer­ica to ac­com­mo­date fe­male-iden­ti­fied males in girls’ re­strooms and locker rooms or risk los­ing fed­eral funds. Can’t these schools fol­low the rule of law?

And what about those scoundrels, the Lit­tle Sis­ters of the Poor, or Hobby Lobby and other Chris­tian-owned busi­nesses that don’t want to obey Oba­macare’s abor­ti­fa­cient man­date? What are they try­ing to do, pro­voke an­ar­chy?

When the U.S. Supreme Court in Cit­i­zens United re­stored col­lec­tive po­lit­i­cal free speech, Pres­i­dent Obama pil­lo­ried the jus­tices in per­son dur­ing the 2010 State of the Union ad­dress, badly mis­rep­re­sent­ing the facts of the rul­ing. Fel­low pro­gres­sives vowed to see the opin­ion over­turned.

But when the U.S. Supreme Court in Oberge­fell v. Hodges in­vented a “right” to same-sex mar­riage in the penum­bras of the Con­sti­tu­tion in 2015, over­rid­ing state mar­riage laws — 31 of them con­sti­tu­tional amend­ments ap­proved by vot­ers — pro­gres­sives in­stantly pro­nounced it “set­tled law.”

They said the same about the Roe v. Wade rul­ing in 1973 that struck down abor­tion laws in ev­ery state — “set­tled law.”

If these ex­am­ples leave you con­fused about what is ac­tu­ally law­ful au­thor­ity, don’t worry. We have an om­ni­scient me­dia to ex­plain it to us. If they fea­ture lots of peo­ple “hail­ing” a rul­ing or or­der, you can bet it’s about an­other ju­di­cial or ex­ec­u­tive de­mo­li­tion job on Amer­ica’s heritage, the Con­sti­tu­tion, found­ing val­ues and gen­uine civil rights. If they quote lots of peo­ple con­demn­ing the rul­ing or or­der as an abuse of au­thor­ity, it’s a clear vic­tory for con­sti­tu­tional gov­er­nance.

To pro­gres­sives and the lock­step me­dia, le­git­i­mate au­thor­ity means only ad­vanc­ing pro­gres­sive causes. If so, it’s no big deal for lib­eral pres­i­dents or judges to run out­side the base­lines when they need to score some runs.

Given the Court’s near-om­nipo­tence, the cen­tral ques­tion of what con­sti­tutes law­ful au­thor­ity will dom­i­nate pub­lic dis­cus­sion in years to come, es­pe­cially if there is a con­ser­va­tive ma­jor­ity.

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