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Join Jim and Greg as they discuss John Fetterman’s painful performance in the Pennsylvania U.S. Senate debate and how Fetterman’s wife and state Democrats failed to protect a man who clearly needs much more time to recover. They also cheer Lee Zeldin for eviscerating New York Gov. Kathy Hochul on crime, the economy, freedom, and the nursing home scandal which still demands accountability. Finally, they applaud the New York Supreme Court for striking down New York City’s policy of firing city employees who did not get a COVID shot and ordering those employees reinstated and given back pay.
Jim Geraghty of National Review and Greg Corombos of Radio America are glad to see not all Democrats have lost their minds after Colorado Sen. Michael Bennet begs 2020 candidates not to campaign on expanding the Supreme Court. They also hammer Beto O’Rourke and other liberals for using the New Zealand mosque massacre to push a ban on the AR-15. And they defend Chelsea Clinton after progressives accuse her of facilitating the New Zealand massacre with her critique of Rep. Ilhan Omar.
The law is very clear that the president has the power to exclude any person or group of people from entering the United States and the Supreme Court was right to rule in his favor, according to a former high-ranking Immigration and Naturalization Service official.
On Monday, the U.S. Supreme Court rejected appellate court decisions striking down President Trump’s executive order that calls for a 90-day travel ban from six nations with significant terrorism problems. The justices lifted some of the injunctions against the executive order and agreed to hear oral arguments on other components later this year.
Temple University School of Law Professor Jan C. Ting served as assistant director of the Immigration and Naturalization Service at the Justice Department during the George W. Bush administration. He says the Supreme Court’s stark reversal from the lower court decisions is striking.
“The unanimity of the high court was surprising. Even the liberal wing of the court concurred in the judgment that the positions of the lower courts in striking down the ban were overly broad,” said Ting.
He fully expects the court to rule in Trump’s favor on the outstanding issues as well given what Justice Clarence Thomas wrote in a separate opinion that both concurred and dissented from the majority opinion.
“It seemed like the travel ban was very likely to be affirmed by the high court on the merits when the high court gets to that point, and I think that’s reflected in the unanimous decision of the high court to push back on the lower court injunctions,” said Ting.
Ting has weighed in at various points of the travel ban debate, pointing out that Trump’s first version was perfectly legal based on existing U.S. statute, specifically 8 USC 1182(f).
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” the statute reads in part.
Ting says that makes this fierce political battle an open and shut case.
“The law is very clear. The president has the authority to exclude any alien from the United States for any reason and for any period of time the president chooses. That is unmistakably clear,” said Ting, noting the ruling is a rebuke to lower courts straining for reasons to block the order.
“The role of the courts is and ought to be very limited. These are political questions, whether people should be excluded from the United States. The political branches of government, the Congress and president together, should be making these decisions,” said Ting.
Critics often call the executive order a Muslim ban and cite first amendment concern. Ting says that argument simply doesn’t hold up.
“I think it’s pretty clear that there’s not a religious issue there. I mean anyone who reads the first amendment can see that we’re not establishing a religion in a travel ban,” said Ting.
Furthermore, he asserts that non-citizens in other countries don’t have constitutional rights.
“The notion that people who are outside the United States who are not citizens have some rights that they can assert under our Constitution is, I think, an erroneous claim. Those issues will all be decided when the high court rules on the merits,” said Ting.
“It would be startling if people outside the United States had some constitutional right either to come to the United States or, frankly, whether they could assert any constitutional rights while as non-citizens outside the United States,” said Ting.
“We think the United States is an exceptional country, but our Constitution is not so great that it governs people all over the world who are not citizens,” he added.
In it’s decision, the Supreme Court allows people to travel to the U.S. from the six nations listed in the executive order only if there is a clear connection for them in this country, ranging from a new job to admission to a college or university or if they have close family in the U.S.
Alternatively, the ban remains firmly in place for those without such connections.
Ting finds the distinction unhelpful.
“I’m with the three dissenters (Thomas, Neil Gorsuch, and Samuel Alito), who say this is going to give rise to a lot of unnecessary litigation before we get to the merits. It’s really not necessary. Since it’s going to be overturned anyway, why don’t we just restore it in the interim?” said Ting.
He says the answer to that can probably be found in in the man who leads the high court.
“I think we see the hand of Chief Justice Roberts here. He’s trying to preserve the dignity of the court and he would like to have unanimous opinions,” said Ting. “He negotiated this compromise just to get everyone on board so the Supreme Court could speak with one voice, heightening the respect of the high court and its decisions.”
Religious liberty activists are celebrating Monday, after the U.S. Supreme Court ruled decisively in favor of a Missouri church that sued the state, alleging it was wrongfully denied state grant money for a playground upgrade in violation of the free exercise clause of the first amendment.
The 7-2 decision in favor of the church included liberal justices Elena Kagan and Stephen Breyer joining with the four conservative justices and moderate Anthony Kennedy in the majority opinion authored by Chief Justice John Roberts. Justice Sonia Sotomayor wrote a stinging dissent that was joined by Justice Ruth Bader Ginsburg.
Trinity Lutheran Church applied for state funds being offered by the state to upgrade the surface of playgrounds to rubber made from shredded tires. The request was denied by Missouri officials, suggesting the money would constitute state endorsement of of a particular religion or denomination.
Chief Justice Roberts says Missouri held Trinity Lutheran Church to an unconstitutional standard.
“The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny,” wrote Roberts.
“The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause,” he added.
” [T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion,” concluded Roberts
The Alliance Defending Freedom worked with Trinity Lutheran on this case. Senior Vice President of U.S. Legal Advocacy Kristen Waggoner says this was a huge verdict for the cause of religious freedom.
“I think today’s decision is a tremendous day for freedom. The court ruled very clearly that discrimination against people of faith and religious groups is unconstitutional,” said Waggoner.
Waggoner says this was discrimination pure and simple.
“In the text of the law, the state was discriminating against this church because of who it was. The government can’t do that. Neither the establishment clause nor the free exercise clause permit class-based discrimination against people of faith and that’s exactly what this was,” said Waggoner, noting that the state’s argument could be extended to deny fire and police protection from churches.
Liberty Counsel Chairman Mathew Staver says this decision is even more pivotal than that. He says a decision in favor of Missouri would have massive consequences in arenas ranging from education to health care.
“That would mean that vouchers – when parents provide vouchers to a school of their own choice – could be blocked across the country,” said Staver.
“It also could mean that, in fact, hospitals that are religiously affiliated, particularly those that are affiliated with churches…could be disqualified from treating Medicaid and Medicare patients for the same reason,” said Staver. “The good news is that’s not the direction the court went.”
Waggoner sees Monday’s decision as a ray of sunshine after what she sees as a long string of high court rulings against religious and she hopes a new trend is beginning.
“Over the course of the last two years, we’ve seen a number of bad laws and bad lower court rulings that have eroded our freedoms. Today’s decision, I think, that that pendulum is swing back towards freedom, which benefits everyone,” said Waggoner.
She also says the gravity of this decision can be seen in the intensity of Sotomayor’s dissent.
“This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” wrote Sotomayor.
“Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” she added.
Staver says Sotomayor has a wrong understanding of history and of the Constitution.
“The intent of the Constitution never ultimately wanted to put this huge separating wall so that you can’t ever have any interaction. The first amendment is designed to prevent an establishment of religion, a preferential treatment of religion or a religious denomination over another, not equal treatment,” said Staver.
Staver also challenges another assumption Sotomayor made in her dissent.
“Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular,” wrote Sotomayor.
Referencing one of the nation’s early justices, Staver says secularism was never understood to be the posture of government in the early days of the republic .
“Justice Joseph Story said that the first amendment was designed to encourage religion, so far as it’s not incompatible with the rights of conscience. It was designed to prohibit rivalries among denominations …not to remain secular,” said.
Story served on the high court from 1811-1845. Staver says if that’s not an early enough interpretation of the government’s relationship with religion, the founders themselves were pretty clear as well.
“Thomas Jefferson, John Adams, all the founders, they consistently said that the people had to be religious and moral. Therefore, people needed to be taught Christian principles even in the public schools, so they would have a moral people, so that our liberty would be preserved,” said Staver.
“It’s frankly shocking (for Sotomayor) to suggest that this is centuries of history that the government is to remain secular. That’s absolute nonsense,” he added.
Neither Staver nor Waggoner appear concerned about the debate among the more conservative justices about the scope of this ruling. The majority opinion includes a footnote from Roberts that seems to limit the decision to the present circumstances.
“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination,” he wrote.
In a concurring opinion, newly-minted Justice Neil Gorsuch acknowledged the specifics of the case but argued that the ruling had farther-reaching impact.
“Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion,” wrote Gorsuch.
“Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations,” he wrote.
Waggoner sees the debate over the footnote as a “red herring” offered up by people looking to diminish the decision. Staver hailed Gorsuch’s approach.
“It is a great opinion by Gorsuch because it shows that he is committed to the original understanding and intent of the Constitution,” said Staver. “I think it really bodes well for the future that we’ve got a great justice who is precise and will be committed to the original understanding of the Constitution,” said Staver.
Both lawyers were also pleased to see the Supreme Court agree to hear to case of Masterpiece Cakeshop v. Colorado Civil Right Commission. It’s at the center of the conscience debate that will set a major precedent in determining whether artistic merchants can decline certain projects if those jobs conflict with their closely held personal beliefs.
Christian vendors declining services for same-sex ceremonies are at the heart of this debate at the moment. Waggoner says that case cuts to the core of freedom in America.
“What we’re finding is that Christians who are in the creative profession are being forced to choose between their professions and their business and their beliefs on marriage,” said Waggoner.
“Every American should be free to choose the art that they create and they shouldn’t fear unjust government punishment for not agreeing with the government’s ideology on any issue, especially marriage between one man and one woman,” said Waggoner.
The Virginia Supreme Court dismissed a challenge to the new transgender accommodation policy at one of America’s largest school districts, but the lead attorney for the plaintiffs vows the case will come back and his side will win when the decision focuses on the facts and the law.
Last week, the Virginia Supreme Court dismissed the case against Fairfax County Public Schools – the largest school district in Virginia and one of the ten largest in the United States – because it concluded the plaintiffs lacked standing before the court.
“They ruled on what’s called standing, whether there was an actual injury here. What we have here is the school board passed the policies but they haven’t actually enforced them yet against any student to the point of disciplining them,” said Liberty Counsel Chairman Mathew Staver, who represented the unnnamed student, the student’s parents and another parent with kids in the Firfax Public Schools.
“Fear of discipline should be enough. That’s what we argued,” said Staver. “But the Virginia Supreme Court ultimately ruled that it’s not ready for a decision yet until someone actually has standing. They have to have a real injury, rather than just fear that they’re going to have an injury, even though the fear is very real and very legitimate,” said Staver.
He says once the case comes back with standing, the court will be compelled to side with his clients.
“Whenever we get them to rule on the actual merits, that is whether the school board can add additional non-discrimination categories that are not included in the state law, then we win. It’s an easy decision at that point in time,” said Staver.
Staver strongly disagrees that a student must be disciplined to have standing to challenge the policy, noting that a formal punishment, even if later reversed, could tarnish a student’s efforts to be accepted at a military academy or work in sensitive areas like national security and intelligence.
He also says students shouldn’t have to negotiate a policy that doesn’t meet state law.
“The school can’t do something that’s clearly illegal, which it’s done, hang it over the heads of the students and threaten that they will be disciplined and then simply void legal repercussions by not disciplining them, but threatening discipline. The fact that they threaten discipline is enough to deter someone’s actions. For the good students, they’re not going to want to walk into a buzzsaw of discipline,” said Staver.
Staver is confident of winning on the merits because of the Dillon Rule, which states no local non-discrimination policy can add protected classes beyond what has been added under state law. Virginia has not added transgender or sexual orientation to its non-discrimination policy.
He says the looming fear of punishment based on an illegal policy is already condemned in legal precedent.
“If you have a violation of free speech, you can file for that action. But if you’re threatened in your free speech, you don’t have to go through discipline or threat or arrest, if the law or the rule or the policy or the ordinance actually creates a chilling effect so that you refrain from speaking, because you are fearful that you will be disciplined or charged or arrested, that’s enough,” said Staver.
Nonetheless, Staver says he is already gathering evidence that will argue his clients has suffered injury because of the policy. In fact, Staver says evidence came in during the lead-up to oral arguments before the court that would have greatly strengthened his case, but he points out evidence discovered after filing the case is inadmissible.
Staver is unsure whether other left-leaning school board in Virginia will take the court’s dismissal as a green light to enact their own policies. He strongly urges districts not to follow the lead of Fairfax County or else they will end up paying massive court fees when they lose on the merits.
On the other hand, Staver says the more school districts pursue the transgender accommodation policy, the easier it will be to gather evidence to being the case back to the Virginia Supreme Court.
Another advantage for Staver, is the Trump administration’s repeal of the Obama Justice Department’s directive that all public schools adopt transgender accommodation policies.
“It definitely strengthens our case on the merits because Fairfax County or any other county could say, ‘We’re just doing it because we’re compelled to do so by this federal directive. They can’t do that anymore. That particular argument , that crutch has been taken away from them,” said Staver.
Former National Rifle Association President David Keene says the second amendment dodged a major bullet when the vacant seat on the Supreme Court was filled by Neil Gorsuch, but he warns the threat to gun ownership is far from over.
Keene gives credit to Senate Majority Leader Mitch McConnell for refusing to advance President Obama’s choice of Judge Merrick Garland to the Supreme Court and for doing what was necessary to get Gorsuch confirmed.
“If Garland had won confirmation, that would have reversed the majority favoring the second amendment as defined by the founders and as ratified by the Supreme Court in the Heller decision some years ago as an individual right to keep and bear arms,” said Keene.
“Preventing the Garland confirmation and replacing Antonin Scalia with Justice Gorsuch is a tremendous victory for America’s gun owners, for believers in freedom and for the second amendment,” said Keene.
Keene, who is now opinion editor at The Washington Times and co-author of “Shall Not be Infringed,” firmly believes that the gun issue and the Supreme Court vacancy was a big reason for President Trump’s victory over Hillary Clinton and for winning over voters in swing states who had supported Democrats in the past.
But Keene is quick to warn second amendment supporters that the fight is not over.
“It does not mean that gun owners can be comfortable in terms of what might happen during the course of the next year or so at the Supreme Court level because it simply re-establishes the majority that existed with Scalia on the court, a very shaky majority,” said Keene.
Another major threat, he says, comes from Obama’s handiwork in signing on to the United Nations Small Arms Treaty. Even without Senate ratification, Keene says the agreement puts pressure on the U.S. to violate its own Constitution.
“Even if it’s not ratified, under international law, a nation is supposedly prohibited from acting contrary to the spirit and letter of a treaty, even though it has not been ratified through processes within the country itself,” said Keene.
The U.S. can ignore the treaty, but Keene is urging decisive action against it.
“It really needs to be killed. There are two ways to do that. One, the President of the United States has the authority to withdraw this nation’s signature from the treaty. I hope that President Trump will consider doing that. The other way to handle it is for the Senate to bring it up and put a stake through it’s heart,” said Keene.
Keene says the treaty is just an international version of the gun restrictions that many Democrats want to impose here in the U.S.
“They want bans on so-called assault weapons that are in fact semi-automatic weapons rather than real assault weapons. They want limits on magazines. They want all the things that Dianne Feinstein and Chuck Schumer and Barack Obama and Hillary Clinton wanted here,” said Keene.
Despite the wind being at the back of gun rights advocates, Keene says his side must realize that gun control supporters are never going to to give up.
“They actually believe that if they snap their fingers and if firearms would disappear, there’d no longer be burglaries. There’d no longer be robberies. We’d all live in peace and I assume unicorns would dance across the horizon. It’s almost a religious fervor with which they go after firearms ownership,” said Keene.
And Keene says pro-second amendment Americans must be equally relentless in protecting their constitutional rights.
“Like most freedoms, this is a freedom that if you don’t stand up for it and if you aren’t wiling to defend it and if you’re not vigilant, it’s liable to disappear on you,” said Keene.
David French of National Review and Greg Corombos welcome Supreme Court Justice Neil Gorsuch and reflect on the election year gamble that paid off for the GOP, while David points out Democrats would have done the same thing if the roles were reversed. They also recoil at the pair of terrorist church bombings in Egypt, apparently carried out by ISIS. And they get a kick out of Hillary Clinton having a long list of reasons she lost in 2016, but doesn’t blame herself at all.
Senate Republicans voted to end the filibuster for Supreme Court nominees Thursday after Democrats refused to advance the nomination of Judge Neil Gorsuch to a final vote, a move grassroots conservatives say had to happen out of respect for the Constitution.
Republicans cited the precedent of Democrats from November 2013, when then-Senate Majority Leader Harry Reid led a rules change to kill the filibuster for lower court judicial nominees and executive branch personnel requiring confirmation.
The move came after a 55-45 vote to end debate on Gorsuch, five votes short of the 60 votes needed. Senate Majority Leader Mitch McConnell then moved to consider the Gorsuch nomination under the rule change instituted by Democrats. His motion was denied, but McConnell then appealed the ruling of the chair and the filibuster for Supreme Court nominees was killed in a party line vote.
While Democrats call the move an attack on democracy, Tea Party Patriots Founder Jenny Beth Martin says it’s the Democrats who took an extreme position with their filibuster.
“When it comes to Supreme Court nominees, never in the history of our entire country have we had a partisan filibuster of a Supreme Court nominee. It just hasn’t been done. What the Democrats are doing right now is breaking the tradition and the practice that we’ve had in this country for over 200 years,” said Martin, whose group has been aligned with the Judicial Crisis Network in pushing for the confirmation of Gorsuch.
The Tea Party Patriots are best known for advocating smaller government and lower taxes, but Martin says the Supreme Court fight is very much in her organization’s interest.
“We understand it is critically important that if we want to have constitutionally-limited government, then we have to have a Supreme Court that upholds the law and judges laws based on the Constitution,” said Martin.
She is convinced the Democrats don’t really have a case against Gorsuch but are still bitter over 2016.
“They are just frustrated that it’s not their person, that they lost the election in November, that it is President Trump who won the election and therefore won the ability to nominate Judge Gorsuch and they are doing all they can to resist what President Trump was elected to do,” said Martin.
Martin says the public is engaged on this issue and overwhelmingly in support of Gorsuch, but she says Democrats aren’t listening to all of their constituents.
“Democrat senators are listening to their base. They’re not listening to the whole of the American people, but they are listening to their base. So they are doing what they think their base wants them to do,” said Martin.
She believes the effort to filibuster Gorsuch will backfire on red state Democrats like Sen. Claire McCaskill, D-Mo., in 2018.
“She has said that this would be a very political maneuver if they filibustered Gorsuch. That’s what she’s doing and she’s doing it out of pure politics, not out of what’s best for the country,” said Martin.
“I know that it is a political job and the things the elected officials do they are going to look at things through the prism of politics. Sometimes you need to do what’s best for the country because you have taken an oath to uphold the Constitution for your country,” said Martin.
And Martin is firmly convinced fidelity to the Constitution will be a hallmark of Gorsuch’s time on the Supreme Court.
“He looks at the law and he respects the law as it’s written. He doesn’t intend to make law and create law out of whole cloth from the bench with his decisions, and he is going to look at the law through the prism of the Constitution,” said Martin.
With the filibuster nuked, a final Senate vote on Gorsuch is expected Friday evening.