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    Constitution Tag

    It's official: as of 12:00 a.m. January 1, 2018, the U.S. military will be open to transgender recruits—a change in policy that had been set in motion by Former Defense Secretary Ashton Carter in 2016. Last night, the Department of Justice announced that it would not ask the Supreme Court to stay several injunctions requiring the military to go forward with Carter's plan—at least until a "study" that President Trump ordered is completed.

    One of the earliest, and dumbest, mantras of #TheResistance since Trump won the election was that Trump's continued business interests violated the Emoluments Clause of the Constitution.
    No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. [ARTICLE I, SECTION 9, CLAUSE 8]

    Georgetown Law Professor Randy Barnett had a tweet on December 5, 2017, that I've been meaning to write about. It reflects a subject I, and others, have been focusing on since election night -- the refusal of Democrats and #NeverTrump Republicans to accept the outcome of the election not just emotionally, but as to the transfer of power that continues to this day, over a year since the 2016 election. Here is Prof. Barnett's tweet, referencing the attempt by outgoing CFPB Director Richard Cordray preemptively to install Leandra English as Interim Director over the objections of the Trump administration.

    The left has had a love-hate relationship with the Electoral College for decades.  When it looks like the Electoral College will help or has helped them, they champion it, and when it looks like it has "stolen" an election from their popular-vote winning candidate, they want it dismantled. In the wake of the resounding 2016 Electoral College win for President Trump (304-227), current DNC chair Tom Perez is taking the Democratic Party into uncharted territory with his declaration that the Electoral College "is not a creation of the Constitution."  He made this bizarre pronouncement before a group of law students at Indiana University Law School.

    On October 25, 2017, I gave a speech at Vassar College on "An Examination of Hate Speech and Free Speech on College Campuses." The main sponsor was the Vassar Conservative Libertarian Union, which also sponsored my 2014 speech at Vassar. Other sponsors were Students for Liberty and the Leadership Institute. The lecture originally was advertised as "'Hate Speech' is Still Free Speech, Even After Charlottesville." The name was changed because the sponsoring student group filed for funding under another title, so we were asked to use that approved title. Regardless of title, the planned discussion of hate speech sent a portion of the campus into a vicious smear campaign against me.

    In late August, we covered the attempts of certain leftist interest groups to challenge the pardon granted former Sheriff Joseph Arpaio by President Trump. Media and activist Trump-Derangement-Syndrome types like Jennifer Rubin at the Washington Post gave credence to the arguments against a pardon, but there never was any there there, as I wrote in Overblown hype about Court scheduling oral argument in dismissal of Arpaio conviction.

    Justice Oliver Wendell Holmes, Jr., in discussing the limits of free speech, wrote in Schenck v. U.S. (1919):
    "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
    A lot of people mess up the quote, saying that "you can't yell fire in a crowded theater." Actually you can yell fire in a crowded theater, if there really is a fire.

    In a case docketed today, 195 Democratic Senators and Congressmen, led by Connecticut Senator Richard Blumenthal and Congressman John Conyers, filed suit against President Trump seeking to declare a violation of the Constitution's Emoluments Clause. This follows a prior lawsuit by the Attorney Generals of Maryland and the District of Columbia. The Emoluments Clause [ARTICLE I, SECTION 9, CLAUSE 8] provides:

    The 4th Circuit Court of Appeals, which heard the case en banc, has upheld substantially all of the Maryland District Court injunction against Trump's revised travel Executive Order in an opinion (pdf.) dripping with politics. (Full embed at bottom of post). The opinions (including concurring and dissenting) are 200 pages, so it will take some time to digest, but you'll get the message from the opening paragraph:

    After the 9th Circuit refused to vacate a TRO issued by a federal judge in Washington State as to Donald Trump's first executive order, I suggested that those judicial decisions not only were legally unjustified, they presented a threat to Trump's lawful executive powers and that dropping and reworking the executive order would be a mistake:
    To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.
    And so it came to pass, with a narrowed and reworked second executive order being enjoined by district court judges in Hawaii and Maryland. There's an interesting article at the LawFare blog, written by Benjamin Wittes and Quinta Jurecic, The Revolt of the Judges: What Happens When the Judiciary Doesn’t Trust the President’s Oath. The central thesis of the post is that judicial aggressiveness towards the executive orders may reflect distrust of Trump by many in the federal judiciary. That distrust, in turn, may be leading judges to cast aside the legally required deference to the political branches that the Constitution, legislation, and Supreme Court precedent require.

    The Electoral College meets December 19, and Democrats are increasing their attempt to steal the election by getting Electors to vote contrary to the vote in their states even if bound by state law. Prof. Lawrence Lessig, one of the first to call for the Electors to go rogue, claims 20 Republican Electors are ready to jump ship, about half of the 38 needed. Politico reports:
    Larry Lessig, a Harvard University constitutional law professor who made a brief run for the 2016 Democratic presidential nomination, claimed Tuesday that 20 Republican members of the Electoral College are considering voting against Donald Trump, a figure that would put anti-Trump activists more than halfway toward stalling Trump’s election.

    We are witnessing nothing short of an attempt to steal the election by some Democrats and a very supportive mainstream and leftwing media, by causing Electors in the Electoral College to go rogue and vote for Hillary, or at least not vote for Trump. The first excuse for this tactic after the election was made by people like Prof. Lawrence Lessig. At least he was honest in his call to have the Electors stop Trump because he didn't like the result and thought Trump would be a horrible president on a host of issues. Honest, but severely misguided. Call that Operation Flip the Electors, Part One.
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