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When the Supreme Court Blessed the Imperial Presidency

The story of how classical liberal Justice George Sutherland enabled executive overreach abroad.

In February 2018, Solicitor General Noel Francisco, an appointee of President Donald Trump, argued in support of Trump's 2017 executive order banning immigrants from certain largely majority-Muslim countries. The president enjoys "broad authority" to act in this area, the government insisted in its brief to the U.S. Supreme Court, "when he deems it in the Nation's interest." Among the legal authorities Francisco cited in support of this argument was a 1936 ruling on presidential power known as United States v. Curtiss-Wright Export Corporation.

The same ruling has come up under both of Trump's immediate predecessors as well. In 2007, for example, Solicitor General Paul Clement, an appointee of President George W. Bush, cited Curtiss-Wright while urging the U.S. Supreme Court to deny the writ of habeas corpus to enemy combatants held at the U.S naval base at Guantanamo Bay, Cuba. Three years later, Neal Katyal, the acting solicitor general under President Barack Obama, cited it in a brief to the Supreme Court claiming that the "sovereign" power to "expel or exclude aliens" is "largely immune from judicial control."

It's safe to assume that when the White House wants a free hand to operate in the name of foreign affairs, Curtiss-Wright will be invoked. In many ways, the ruling and its author are at the heart of the American presidency's most sweeping claims to unilateral authority.

The precedent involved a 1934 joint congressional resolution granting President Franklin Roosevelt wide discretionary power to stop U.S. firms from selling arms to Bolivia and Paraguay, which were then involved in a conflict known as the Chaco War. Roosevelt wielded this power via presidential proclamation.

Two years later, the Curtiss-Wright Export Corporation was indicted for selling arms to Bolivia. The company fought back, arguing that Roosevelt's proclamation was rooted in an unconstitutional delegation of legislative power to the executive branch. In other words, the argument went, if the federal government wants to prohibit the sale of arms to a particular country, then Congress must pass a statute to that effect. Lawmaking by presidential fiat is not constitutionally sufficient.

But the Supreme Court took a very different view of the matter. "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power," declared the majority opinion of Justice George Sutherland, but also with the "plenary and exclusive power of the President in the field of international relations—a power which does not require as a basis for its exercise an act of Congress." When that sort of executive power is at stake, Sutherland wrote, the president must be afforded "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."

Advocates of expansive presidential power have been trotting out Curtiss-Wright ever since. Indeed, it has proven to be one of the most influential rulings on executive authority in American legal history.

'Mischievous and Meddlesome Statutes'

On June 4, 1923, the U.S. Supreme Court struck down a state law that banned both public and private schools from educating young children in a foreign language. "The individual has certain fundamental rights which must be respected," the Court held in Meyer v. Nebraska. Among them are the rights of a foreign language instructor "to teach and the right of parents to engage him so to instruct their children." The U.S. Constitution, the Court insisted, protects the liberty of both "those born with English on the tongue" and "those who speak other languages."

It was a libertarian victory—but two members of the Court were not pleased. "I am unable to say the Constitution of the United States prevents the experiment being tried," wrote Justice Oliver Wendell Holmes Jr. in a dissenting opinion. That Holmes wanted to see the state law upheld came as little surprise. A thoroughgoing majoritarian, he believed that the courts owed significant deference to the acts of elected officials. "A law should be called good," Holmes once wrote, "if it reflects the will of the dominant forces of the community, even if it will take us to hell."

The second dissent came from a more unexpected source. Justice George Sutherland was nobody's idea of a judicial pacifist. "If constitutional and orderly government is to endure," Sutherland once told the American Bar Association, "there is but one course for the courts to follow, and that is to set their faces steadily and unswervingly against any palpable violation of that great instrument, no matter how overwhelming in the particular instance may be the popular sentiment."

Sutherland practiced what he preached. During his 16 years on the bench (1922–1938), he often led the Supreme Court in ruling against what he called "the affliction of mischievous and meddlesome statutes." When Pennsylvania tried to stop the spread of corporate-owned chain drug stores by requiring that all pharmacies operating within state limits be owned exclusively by licensed pharmacists, Sutherland voided the law as a gross misuse of government authority. "A state undoubtedly may regulate the prescription, compounding of prescriptions, purchase and sale of medicines, by appropriate legislation," Sutherland observed in Liggett Co. v. Baldridge (1928). But restricting the "mere ownership of a drug store" to licensed pharmacists achieved no such legitimate public health or safety purpose.

He could be equally hawkish in First Amendment cases. In 1934, the Louisiana legislature passed a law requiring all newspapers, magazines, and periodicals with a circulation of 20,000 or more to pay an annual licensing tax of 2 percent on all gross receipts. Ostensibly justified as just another run-of-the-mill tax bill, the measure's true purpose was to suppress unwelcome political speech. It was enacted at the behest of Gov. Huey P. Long, who ordered his cronies in the legislature to use their vast taxing powers to harass and punish his enemies in the press.

Sutherland wrote the opinion that thwarted this attempt at state censorship. The Louisiana law is "a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees," he wrote in Grosjean v. American Press Co. (1936). "A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves."

Sutherland was also alert to government misconduct in the criminal justice realm. At issue in the 1932 case Powell v. Alabama was the fate of the so-called Scottsboro Boys, a group of African-American youths who had been falsely accused of raping two white women and then subjected to a rushed sham trial. "We hold that defendants were not accorded the right of counsel in any substantial sense," Sutherland wrote for the Court, reversing the convictions. "To decide otherwise, would simply be to ignore actualities."

Sutherland exhibited distinct libertarian tendencies in these cases. Yet he was prepared to uphold an equally suspect state action in Meyer v. Nebraska. What made him think it was acceptable for the government to prohibit parents from educating their young children in a foreign language?

'The Powers of War and the Rights of Peace'

The answer lies in the origins of the Nebraska law. It was passed in 1919, at the height of the anti-German hysteria that gripped the United States during World War I. Its target was the state's network of Lutheran parochial schools, where both teachers and students commonly spoke German. At the center of the case was a man named Robert Meyer, who ran afoul of the statute by teaching the Bible in German at a school run by the Zion Evangelical Lutheran Congregation. In short, Nebraska prohibited foreign language instruction as a sort of war measure, designed for the express purpose of repressing an internal "enemy" population.

Despite his libertarian leanings in other areas, Justice George Sutherland had no problem with the existence of a law like that. "When the powers of war and the rights of peace become irreconcilable, both cannot stand," he wrote in 1919, "and it requires no argument that in such case the rights of the individual, rather than the common welfare, must be sacrificed."

In effect, there were two faces to Sutherland's jurisprudence. On domestic matters, he was a strict Madisonian, favoring checks and balances, limited government, and judicial action on behalf of individual rights. But when it came to foreign affairs, he became an ardent Hamiltonian, championing the exercise of virtually unlimited war powers and related government authority. "The rules of [constitutional] construction which apply when the government undertakes to deal with internal matters," he declared, "may not apply, in the case of external affairs, in the same way, or to the same degree, or, conceivably, in some cases, may not apply at all."

During World War I, Sutherland observed, Congress "invested the President with virtual dictatorship over an exceedingly wide range of subjects and activities—a grant of power which no free people would tolerate under normal conditions, but which, under the great emergency of war, has properly received unhesitating popular approval."

One of the dictatorial powers was the Espionage Act of 1917, which made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of anti-war speech. If convicted of obstructing the war effort, the guilty party faced up to $10,000 in fines and up to 20 years in prison.

Among those imprisoned by the Woodrow Wilson administration for violating that law was the labor leader and Socialist Party stalwart Eugene Debs, who was convicted after delivering a mildly anti-war speech to a crowd at an afternoon picnic. The Supreme Court upheld Debs' conviction in 1919. "One purpose of [Debs'] speech, whether incidental or not does not matter, was to oppose not only war in general but this war," wrote Justice Holmes in Debs v. United States. "The opposition was so expressed that its natural and intended effect would be to obstruct recruiting."

Sutherland was not yet a member of the Court at that time, but there is little doubt that he would have sided with Holmes had he been on the bench. "Instead of going too far, the [Espionage] Act did not go far enough," Sutherland declared in 1919. "In time of war—when every disloyal word, every profane criticism of our aims, our motives, our uniform, our flag, may, by delaying preparations or reducing the fighting will of the people, contribute to the sacrifice of men upon the battlefields—an unbridled tongue may be as dangerous as a wicked hand."

I've been studying Sutherland for many years now, and I'm still taken aback that the great defender of the First Amendment in Grosjean v. American Press Co. could also voice such moist praise for this censorious law.

'This Vast External Realm'

The two faces of Sutherland's jurisprudence become even more distinct when you examine his judicial behavior during the administration of Franklin Roosevelt. In the contentious courtroom battles of the 1930s, Sutherland led the Supreme Court in both reducing and expanding the powers of the executive branch.

The reduction came first. In 1935, he dealt FDR a severe blow when he held, in Humphrey's Executor v. United States, that the president had exceeded the scope of his lawful authority by firing a member of the Federal Trade Commission for purely political reasons without first obtaining Senate approval. The FTC "cannot in any proper sense be characterized as an arm or an eye of the executive," Sutherland wrote. The agency "must be free from executive control."

Roosevelt was furious about the diminishment of what he saw as his absolute executive prerogative. "I really think the decision that made Roosevelt madder at the Court than any other decision was that damn little case of Humphrey's Executor," Robert H. Jackson, who was appointed to the Supreme Court by Roosevelt in 1941, later reported. "The President thought they went out of their way to spite him personally."

But FDR smiled wide a year later when Sutherland issued his far-reaching opinion in United States v. Curtiss-Wright Export Corp. "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution," Sutherland wrote, "is categorically true only in respect of our internal affairs." By contrast, he maintained, "the powers of external sovereignty" do "not depend upon the affirmative grants of the Constitution." According to Sutherland, "this vast external realm" involves the "plenary and exclusive power of the President as the sole organ of the federal government."

It's hard to imagine a more wholesale judicial endorsement of executive branch authority. Roosevelt, unsurprisingly, was thrilled by the ruling. His successors in the Oval Office have tended to feel the same way.

An Imperial Legacy

In 2013, a journalist from New York magazine asked Justice Antonin Scalia to predict how he will be remembered by future generations. "For all I know," Scalia replied, "50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who's regarded as: 'He was on the losing side of everything, an old fogey, the old view.'"

Sutherland is often remembered in this way, as a sort of judicial relic. And there is a reason for it. On the domestic front, his penchant for constitutional limitations largely fell out of favor in the late 1930s, when the Supreme Court reversed itself and began upholding the legality of numerous New Deal regulations. Sutherland was on the losing side of that fight.

Yet he must undoubtedly be counted on the winning side when it comes to foreign affairs. Not only has his broad vision of wartime government authority been embraced by virtually every president since FDR, but Sutherland's writings have become part of the legal foundation upon which the modern executive branch wields—or attempts to wield—many of its most consequential powers. His blessing of the imperial presidency has shaped the course of American law.

Photo Credit: Joanna Andreasson. Source images: Gage Skidmore/Wikimedia

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  • Eddy||

    "a power which does not require as a basis for its exercise an act of Congress"

    Since that case upheld a Congressional statute, then babbling about what the President could do without Congressional approval seems like mere dicta.

    But if it's not dicta, it's simply wrong.

  • Robert||

    In that case you're in for a raise...see below.

  • Eddy||

    My sister's ex-husband couldn't get no lovin', he ran around dog-faced and hurt, then he got astuter, now works on the computer, earns enough gold bars to fill a yurt.

  • loveconstitution1789||

    Exactly.

    n February 2018, Solicitor General Noel Francisco, an appointee of President Donald Trump, argued in support of Trump's 2017 executive order banning immigrants from certain largely majority-Muslim countries. The president enjoys "broad authority" to act in this area,

    The Constitution, Article I sections 8 & 9 give Congress authority to regulation naturalization and migration of immigrants. Congress has in turn created law to regulate said persons. The President executes those laws. The court s have never struck down those immigration laws created by Congress.

    This open border fascination by Reason staff is so phoney. They cannot just say that all the legal authority to secure the border is completely constitutional but they would like open borders.

  • Ride 'Em||

    The Northern European countries which are welfare states don't have open borders and have align to force the Mediterranean countries to take responsibility for the migrants. I often wonder why the left never mentions that as they often hold up Sweden as an example of what the US should be like.

  • Salmonsnail||

    The Republicans passed a tax bill specifically designed to target and hurt their political enemies in states that didn't vote for the Republican party and it's widely acknowledged fact.

  • Palin's Buttplug||

    Cut taxes, spend like drunk sailors, trillion dollar deficits = Bush/Trump GOP.

  • Cy||

    They could be like Obama and create a massive tax on the poor and middle class with a forced participation insurance mandate.

  • Palin's Buttplug||

    Obama cut payroll taxes.

    Obamacare actually is a tax to force freeloaders off the health care gravy train. Since Reagan's EMTALA is in effect to mandate care for those people getting them to pay for it was a "conservative" idea from Heritage.

  • Sevo||

    "Obamacare actually is a tax to force freeloaders off the health care gravy train."
    So you finally admit it's not based on a market, but on an (illegal) form of tax?
    That didn't take long you slimy piece of shit.

  • ceanf||

    Werd Sevo. Riddle me this buttplug... if was a 'tax' then why didn't they pass it as one?

  • Flinch||

    The "bill" was just an edict for HHS to write pretty much whatever they felt like. Congress only wanted to gift the president more power, and had no idea what the final regulations would be - just a loose framework of assumptions all hinged on "...as the secretary shall determine". Obama got to write his own laws... do we have much of any separation of powers left anymore?
    Sadly [as we all know], nobody read the ACA: not congress, not the president and not SCOTUS. Knowing that, should we even regard Roberts majority musings as a ruling? Courts that don't look at evidence generally come in two flavors: kangaroo and lynch mob. The ACA wasn't anything but a blank canvas until the executive branch wrote it into existence on an ad hoc basis. SCOTUS could have declared it a treaty and kicked it back to the senate for all we know - no one would have believed it, but they really could have done anything as the statute was an empty vessel until HHS was done.

  • Devastator||

    As much as I didn't like it, it's not illegal by any standard of the United States it gets overturned in law, or do you not understand how law in the USA works?

  • Sevo||

    Devastator|7.1.18 @ 2:33PM|#
    "As much as I didn't like it, it's not illegal by any standard of the United States"

    Wrong.
    Which specific area of which branch is responsible for taxation?

  • Nardz||

    "Obamacare actually is a tax to force freeloaders off the health care gravy train."

    Medicaid?
    But it increased Medicaid.
    Other than that, not sure what this gravy train you speak of is. People without medical insurance pay for the healthcare they receive. They pay for service as consumed like any service.

  • Flinch||

    Right. There was no gravy train - what HHS laid down was so bad the market would have collapsed without subsidizing both insurers and the insured. That's worse than simple redistribution of wealth, which could be regarded as a zero sum game [I am inclined to disagree with that, as economies are dynamic by nature]. All it did was run up more debt, as a means to push the dollar past the point of no return in my estimation. That goes hand in hand with Obama's unspoken zero growth agenda.

  • Shirley Knott||

    Oh, but it hired shit-tons of bureaucrats and spawned a host of subsidized and parasitic 'support infrastructure.'

  • Palin's Buttplug||

    The "gravy train" is obtaining health care via Reagan's EMTALA in emergency rooms and not paying for it.

  • Ride 'Em||

    Don't believe that is correct. Some of that unpaid ER care went to illegal aliens who don't pay into ACA. Some of it went to indigent people who never applied for Medicaid. If someone had assets collection attorneys went after and, if, the patient had a job hospitals sought garnishments. I know your argument was used quite often in defense of the ACA but it was a false argument for the most part.

  • JFree||

    Obamacare actually is a tax to force freeloaders off the health care gravy train. Since Reagan's EMTALA is in effect to mandate care for those people getting them to pay for it was a "conservative" idea from Heritage.

    I agree in part. The mandate/tax WAS a conservative idea to force freeloaders off some gravy train. The problem is that those 'freeloaders' don't actually exist in significant numbers - and, if anything, they were lowering costs for everyone else. Putting them into the system did nothing but jack up the total costs.

    The last number I saw (just before Obamacare) for hospital uncollectibles was in the neighborhood of $50-75 billion. That's near irrelevant considering a)the total size of billings and b)most were still incurred by the insured who went into bankruptcy not uninsured.

    Uninsured were generally foregoing medical treatment, NOT incurring it and expecting someone else to pay. They were the ONLY people in the US making medical decisions based on pricing signals. And generally, they paid the highest prices for everything, thus serving to subsidize everyone else. To the degree that foregoing treatment in the short-term causes bigger problems down the road - well that's another very real healthcare problem.

    Unfortunately neither political side really gives a shit about understanding the healthcare problem itself. The whole thing is viewed by both sides as merely an electioneering weapon.

  • Ride 'Em||

    ^^^this. Spreading costs doesn't make something affordable. It takes reengeering the system to lower unnecessary costs, finding/inventing better ways of doing things and eliminating overhead. The ACA increased overhead thereby increasing costs to spread around.

  • Gozer the Gozarian||

    Holy shit, the trollbot is out this AM!

  • Palin's Buttplug||

    Cut taxes, spend like drunk sailors, trillion dollar deficits = Bush/Trump GOP.

  • Longtobefree||

    For a widely acknowledged fact, you include damn few links to named, verifiable, reliable sources.

  • MoreFreedom||

    "The Republicans passed a tax bill specifically designed to target and hurt their political enemies in states that didn't vote for the Republican party and it's widely acknowledged fact."

    Isn't a law allowing state and local taxes to be deducted from federal taxes, also a law designed to target and hurt low tax states; thus, designed to target and hurt fiscal conservatives? The way I see it, is that Trump's change to the tax laws restores the federalism, and freedom (and responsibility that comes with it) our founders intended.

  • NashTiger||

    Prior to the tax cuts, A person who made 250K in CA paid less in Federal Income Tax than someone who made $250K in TN. About $6K less

    Who qas being hurt again?

    Thank God Trump and Ryan and Cocaine Mitch restored some basic fairness and sanity, and quit subsidizing the high tax states wastefulness and sop to Govt Unions

  • TxJack 112||

    Obama care is not a tax nor is it healthcare. Obamacare was designed with one purpose, destroy the private healthcare market and force Americans to accept a single payer government controlled healthcare system. This is why Medicaid was expanded so much. The only problem is no one on the left expected the Obama administration to do such a terrible job implementing the plan which forced delays and exposed the real objective. The simple truth is the private system is not perfect by any means but we do have the best healthcare in the world. It is insane to think a country of over 330 million can operate a socialized health care system when countries with 1/10 the population, such as the UK, cannot. In addition, there is ample evidence with a socialized system, healthcare is rationed due to cost and the government decides who lives and dies. The death rate from breast cancer in the UK is 87% higher than the US because women are only given the cheapest, oldest and least effective drug for treatment because the government cannot afford to pay for the types of treatments provided in the US. Diseases and conditions that are easily treated in the US are fatal in the UK. The ONLY country able to manage socialized medicine in Sweden because its population (3 million) is that of a large US city but the country has enough economic resources to pay for it since Swedes pay 95% in income taxes. Sorry, but if I was paying 95% in income taxes, damn well everything better be free.

  • TxJack 112||

    God I love this claim. What happened to "everyone paying their fair share in Federal income tax"? Since Texas has no state income tax, I have nothing to no special deductions so I pay 100% of what I am required to pay in Federal taxes. In addition, those taxes deducted by people in high tax states only go to the people in those states so not only am I paying higher Federal taxes, they are keeping more money themselves and I am being forced to pay a greater share. All the GOP tax cuts did was cap the amount a person living in a high tax state is allowed to deduct. The tax cut law did not hurt them, the stupidity of electing Democrats who know how to do nothing except increase taxes is what hurt them. If they want to pay lower state taxes, they need to elect people whose first response to every issue is not to raise taxes and play the old, tired game of class warfare. If you are stupid enough to elect people who love to waste money and raise taxes, then you should have to live with the consequences of those decisions.

  • Just Say'n||

    No. They just decided that it's nonsensical for the people of Texas to subsidize the high taxes of California. Eliminating SALT was a great thing. How in the world could anyone defend that nonsense?

  • loveconstitution1789||

    Go by reaction. Lefties hated the tax reform so it mus5 be awesome.

    Lefties hate Trump and he is doing great.

    Lefties hate freedom and freedom is awesome.

  • Palin's Buttplug||

    President Donald Trump has reportedly soured on Secretary of Defense Jim Mattis and is now increasingly making US military policy on his own.

    Trump withdrew from the Iran deal, stopped US military exercises in South Korea, and aired plans to create the first new military branch in 70 years all in snap, shock decisions that saw Mattis scrambling to keep up, according to a new report from NBC.

    "They don't really see eye to eye," said a former senior White House official.

    These policy moves represent a budding trend of Trump steering US foreign and military policy by himself, and often against the advice of his top advisers like Mattis, sources told NBC.

    Business Insider

    TRUMP DON'T NEED NO STAFF!

  • Sevo||

    "Business Insider"
    Next, turd will cite Vox as a source.

  • Longtobefree||

    Sources? What sources? I don't see no stinkin' sources that are actually named, verifiable, or reliable. I see fake news from a company with an agenda.

    BTW: Trump is the commander in chief. He gets to do it on his own if he wishes.
    Elections have consequences, even if you choose to ignore the results of the election.

  • Scarecrow Repair & Chippering||

    TRUMP DON'T NEED NO STAFF!

    Then the whole Stormy Daniels kerfuffle is just a waste of courts?

  • TxJack 112||

    You are citing NBC, seriously? Funny how these "sources" never have the balls to go on the record and always say something to make the President look bad. You never see sources telling reporters anything positive about the President. This is deep state BS and why the media has no credibility with the majority of Americans any longer.

  • Cy||

    It's almost as if the former Presidents and their abuses of power have set a horrible precedent for future Presidents. Who knew?

    When the systems that are supposed to be stopping Trump on things he's doing illegally aren't, because it's not convenient or it matches their political party lines but they are challenging/stopping him from doing things that are perfectly legal for him to do, it seems as if we're throwing more logs into a train destined for a cliff.

  • Cy||

    * it seems as if we're throwing more logs into the firebox of a train destined for a cliff.

  • Longtobefree||

    If it is a high speed rail train, no worries; it will be ten years late.

  • mpercy||

    Plus, if it is a high speed rail train it will join two unpopular cities and have zero ridership.

  • Jay Dubya||

    +1 president precedents

  • Leo Kovalensky II||

    I sometimes wonder if our constant state of war is just a power play for the largess and beauracracy that is the executive. How can they do whatever they want if not for a constant national security threat?

    It's almost Orwellian really. The wars in 1984 were constant with no side really ever gaining or losing. We've always been at war with X was just a way to drum up support for government no matter who the enemy happened to be at the time.

    I don't see the judiciary ever becoming a check on this power. The Congress really must reign in the executive by repealing the laws that ceded authority in the first place. That seemed unlikely until we got a president that seems to be capable of pissing off both sides almost equally.

  • Palin's Buttplug||

    You echo the questions in The Power of Nightmares, subtitled The Rise of the Politics of Fear, is a BBC documentary film series, written and produced by Adam Curtis.

  • Palin's Buttplug||

    The films compare the rise of the American Neo-Conservative movement and the radical Islamist movement, making comparisons on their origins and noting strong similarities between the two. More controversially, it argues that the threat of radical Islamism as a massive, sinister organised force of destruction, specifically in the form of al-Qaeda, is in fact a myth perpetrated by politicians in many countries—and particularly American Neo-Conservatives—in an attempt to unite and inspire their people following the failure of earlier, more utopian ideologies.

    Topdocumentaryfilms.com

  • Brian||

    911 Reuther?

  • Cy||

    You always need a boogeyman to keep the children scared. The idea that we needed to start multiple wars literally on the other side of the globe to "end" terrorism, is one of the dumbest things I've ever heard. Yet here we are.

    At this point, I think we just use those areas for military training and weapons testing. It's a shitty version of imperialism.

  • Palin's Buttplug||

    Yes, with the demise of Communism conservatives had to invent a new threat to keep the people away from secularism/hedonism - their real enemies.

  • Cy||

    It looks like Communism may be coming back en vogue. It'll be interesting to see how it plays out again when compared to the 40's and 50's.

  • Longtobefree||

    Well, so far, occupy wall street does not have nukes, so more like the forties than the fifties - - - - - - - -

  • Flinch||

    Not vogue maybe, but after the dnc threw the "working man" under the bus this decade, they have an identity crisis largely concealed by their buddies at the networks and usual print outlets. All they have left is Bernie type hardcore socialists [budding communists] and racism - union rank and file know they've been spit on, despite the ongoing leadership guiding roughly 98% of their [skimmed] money to democrats. The Schultz/Clinton strangulation of the dnc machine is going to cost them a decade of recovery time, but the clock can't start ticking as long as they stay stuck on stupid: playing the racism card is getting old, as in 50 years old, and people's eyes just glaze over now if they're not certified coolaid drinkers. Kanye is the tip of the iceberg, as the usual talking points get used for toilet paper by more people that used to be their base...

  • Scarecrow Repair & Chippering||

    Wasn't it a Democrat who found new military targets after the USSR fell apart? Someone named, uhhh, Clinton, who sent cruise missiles into Afghanistan and Somalia?

  • Jay Dubya||

    many of our worst social problems today had their genesis in or metastatized during the clinton admin (crime bill, etc). the shift to islamic extremism being the focus of the intel community began in earnest around that time - alec station was formed for example - but the problem was not a new one. the seizure of the iranian embassy, carlos the jackals ostensible "conversion" to islam, the PLO, the Afghan/soviet war, these were all a 70's to 80's phenomenon. airline hijackings were downright common (comparatively) during this time. while islam was very much an alien concept to the electorate until well after 9/11, the intelligence alphabet soup was well involved with islamic terrorism - as often funding it as fighting it - decades before the clinton years. (WWI-era great game arab exploitation is a whole other conversation but just as important ... the West invented the very idea of the Arab to fight the Turks)

  • Francisco d'Anconia||

    The Congress really must reign in the executive by repealing the laws that ceded authority in the first place. That seemed unlikely until we got a president that seems to be capable of pissing off both sides almost equally.

    Still seems unlikely. My TEAM, right or wrong.

  • Flinch||

    Why that would demand... oversight! There is no longer enough calendar time in any session of congress to do that in our post LBJ world. Unlikely is the correct answer.

  • Modus Pwnens||

    During the current administration it's been Congress and the pundit class pushing for hostilities rather than the president. Ridiculous, unjustified sanctions on Russia and continued involvement in Syria.

  • Leo Kovalensky II||

    No, it's the Pentagon. Always the Pentagon.

  • JFree||

    I sometimes wonder if our constant state of war is just a power play for the largess and beauracracy that is the executive. How can they do whatever they want if not for a constant national security threat? I don't see the judiciary ever becoming a check on this power.

    I don't see the judiciary ever becoming a check on this either - since the problem is US not them. Blaming this on some group of bureaucrats or gummint is itself just a deflection. They ain't gonna stoke some conflict that doesn't resonate deeply with 'we the people'.

    The Congress really must reign in the executive by repealing the laws that ceded authority in the first place.

    Which ain't gonna happen unless the reasons that motivated that ceding of authority have since become irrelevant. Which is doubtful.

    That seemed unlikely until we got a president that seems to be capable of pissing off both sides almost equally.

    And that ain't gonna happen either until we are willing to elect someone who will personally piss us off.

  • Leo Kovalensky II||

    Let's see what happens this November. I think there's enough never Trump sentiment left in the Republicans that if the R's get punished at the polls you might see them turn away from things like tariffs and Presidential immigration policy in the name of National Security. Might.

    My point is that if it's ever going to happen it's going to require some outsider, like Trump, who is perceived as requiring checks because he's not a pure enough pol.

  • TxJack 112||

    Our constant state of war is the due to the overwhelming control of the military /industrial complex which are the special interests that have kept RINOs like McCain, Graham, McConnell, Schumer and other establishment politicians in office for decades. They are the ones who have fought any reforms because it would diminish their influence and control. They are the 1% getting rich while the rest of the country flounders in uncertainty. They are the reason the government no longer seeks to govern but only win the next election. When you hear the BS about voters "preferring a divided government" the truth is special interests prefer a divided government because they know it means maintenance of the status quo. The problem for special interests in all of the establishment politicians on both sides who are opting to retire rather than continue fighting a losing battle. They can see the writing on the wall and know the entire system is changing. Centrist voters are sick of being ignored which is why the progressive left and media are having a cow. The chaos and conflict which were the norm for our system the past 20 years has been swept aside and all these clowns know it.

  • loveconstitution1789||

    They are squirming like little piggies with their pork projects in perile.

  • Aloysious||

    OT: Something happened in Portland yesterday.

    A few observations after viewing the photo gallery...

    1. nipples
    2. the British flag? Why?
    3. these people need a hobby.
    4. too many hairy dudes.

    conclusion: we should be building a wall around Portland. To keep them away from the rest of us.

  • Longtobefree||

    What is a 'Portland'?
    Why do we care? (besides click revenue?)

  • Flinch||

    Portland, OR : its where the hippies ran off to after turning San Francisco into a mess [during the summer of drugs], and there they repeated the process but more quietly. That probably explains all the hairy folks. It's been over a decade since I went up to Canada, but I was shocked at two things: the open air [broad dayligh] heroin market downtown [spanish only transactions], and the heavy redneck quotient that stood in stark contrast in various areas. Some streets were white on one side and black on the other like it was 1937 or something. It's different than say Alabama, but dividing lines were stark, with very little co-mingling. As for the british flag... I don't have a clue.
    But as for walling off Portland, better contain the rest and throw in California as well? We could grant asylum to a good 30% of the population, and screw the rest - it's not a one party state by accident: real voters really screwed up on a repeated multi decade basis to get where they are today: house poor/trapped, or homeless.

  • JFree||

    conclusion: we should be building a wall around Portland. To keep them away from the rest of us.

    They ain't any different than the rest of us. This whole antifa and alt-right stuff looks to me like the Weimar Republic or the early stages of ethnic cleansing in various places.

    Seems odd since I personally don't really know how it happened. But it's pretty obvious to me - even within my extended family to some degree - that Americans everywhere no longer have any sense of what is America beyond 'my TEAM' and 'enemy'. Little binds us across that team divide and neither team has the slightest interest in doing anything but destroying the remnants of what does bind us across team.

  • Sevo||

    "They ain't any different than the rest of us. This whole antifa and alt-right stuff looks to me like the Weimar Republic or the early stages of ethnic cleansing in various places."

    That's because you're a fucking idiot.

  • Longtobefree||

    Imperial:
    1. Related to an empire, emperor, or empress.
    2. Relating to the British imperial system of measurement.
    3. Very grand or fine.
    4. Of special, superior, or unusual size or excellence.

    Well, this is a republic, not an empire, so not 1.
    This is not about measuring anything, so not 2.
    That leaves 3 and/or 4.

    I don't think that word means what you think it does.

  • Scarecrow Repair & Chippering||

    The US turned imperial once it began acquiring colonies in 1898.

  • Scarecrow Repair & Chippering||

    And if you had actually read the fine article, you would understand it's all about having an emperor / king / dictator in all things outside the country, even extending into the country when the external requirements come in conflict with domestic niceties.

  • sarcasmic||

    Considering how much unchecked power Congress has ceded to the executive, 1 isn't that big of a stretch.

  • Modus Pwnens||

    It's good that you can look up definitions. Now look up the definition of "metaphor".

  • Longtobefree||

    Oh yeah; can I get that picture on a coffee mug?

  • Francisco d'Anconia||

    I've been studying Sutherland for many years now, and I'm still taken aback that the great defender of the First Amendment in Grosjean v. American Press Co. could also voice such moist praise for this censorious law.

    These are the inconsistencies you get when your philosophy isn't rooted in principle.

  • JFree||

    I disagree completely. Those are only the inconsistencies you get when your principles require that you first find the true Scotsman to get you there.

  • MoreFreedom||

    While I really like Root's articles, I can't say I entirely agree with him here, especially regarding illegal immigrants and immigration, or foreign relations (especially when no government spending is involved). I do believe the Bill of Rights should apply to anyone legally in the US. But the government's purpose is to protect our lives and liberty.

    Not allowing immigration from countries with Jihadist movements or where we know nothing about the criminal/terrorist tendencies of its citizens (because it government doesn't keep records of criminals, or encourages people to harm others like Muslims who believe non-Muslims should be 2nd class citizens or killed) seems quite reasonable to me. I'd be more inclined to allow open borders if we didn't have federal government welfare, and we weren't at war (none at the time which I support).

    Note Root's article addresses mainly state laws that violate the Bill of Rights, not immigration. For foreign relations, it's important (as the Constitution prohibits) that States or individuals don't engage in agreements/compacts or war with foreign nations, as that would bring war here started by those states or individuals; thus, endangering other US citizens.

    As for congressional limits, the Senate does ratify treaties. As for people not legally in the US, I don't see the Constitution as applying to them.

  • LarryA||

    I do believe the Bill of Rights should apply to anyone legally in the US. But the government's purpose is to protect our lives and liberty.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

    1. Rights belong to all people.
    2. Rights come from the Creator, the BoR is a document which seeks to protect them from government overreach.
    3. Governments are instituted to protect the individual rights of all people.

    Expecting any government to protect individual liberty is setting the fox to guard the chickens.

  • Modus Pwnens||

    The Declaration of Independence is a rhetorical document that never had any legal standing. Even the Articles of Confederation retain more legal standing than the DOI.

  • NashTiger||

    non-citizens don't have the rights of citizenship. They never have.

    Just like I don't enjoy property rights with your property.

    The same Constitution gives Congress the power to regulate in Article I Section 8
    The same Congress does so in USC 1182, and gave the POTUS the power to exclude any class of aliens he sees fit

  • NashTiger||

    The 14th Amendment states:

    "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

    It does NOT say "all persons are citizens", or "No state shall make any law that abridges the privilege of all people"

  • JFree||

    Like it or not - what it says is - henceforth there are citizens of the US (let's call them Americans) not merely citizens of states:

    and ONLY the US government can abridge the the privileges or immunities of Americans and ONLY the US government can make that determination of whether a state law is merely abridging everyone's rights by happenstance or abridging those rights to create some special privileges for those they deem citizens of their particular state.

  • IceTrey||

    That's because the Constitution doesn't apply to people it applies the the government.

  • loveconstitution1789||

    The constiution limits government and protects the persons under its jurisdiction.

  • Homple||

    "As for people not legally in the US, I don't see the Constitution as applying to them."

    I have to agree with you. The first words of the Constitution are "We the People of the United States", not "We are the world we are the children."

  • LarryA||

    Be careful what you wish for. If the Constitution doesn't apply to a person, he or she can't be held responsible for violating the laws written under its authority.

  • Modus Pwnens||

    I think he means the Bill of Rights doesn't apply to them, not the entire constitution.

  • Leo Kovalensky II||

    I don't know what's worse, you claiming basically that rights come from a piece of paper, or essentially endorsing the Dred Scott decision.

  • loveconstitution1789||

    Some rights come from a piece of paper.

    The right to vote comes from state constitutions. Pieces of paper.

  • IceTrey||

    The Constitution only applies to the government.

  • loveconstitution1789||

    The constitution applies to all under its jrisdiction. Govenrment and people in US territory.

  • Weigel's Cock Ring||

    Dipshit Dave Weigel and Mary Stack are having a super extra butthurt weekend, and it's awesome.

    No big surprise either, considering they're getting their asses kicked on every front.

  • OpenBordersLiberal-tarian||

    Extremely important news from possible Democratic presidential candidate Kamala Harris: Lynching is a dark, despicable part of our history​. Passing an anti-lynching law is long overdue.

    With the enormous increase in hate crimes against black and brown bodies that has occurred since Drumpf's election, this legislation is urgently needed. I sincerely hope it passes, although with the white supremacist party currently controlling the Senate and Presidency it's hard to be optimistic.

    By the way, if any of you right-wing wiseguys want to say "Isn't lynching murder, and isn't murder already illegal?" Then congratulations, you're completely missing the point. It's not nearly enough for it to be treated like any other murder. It must be a federal hate crime.

    #BlackLivesMatter

  • Modus Pwnens||

    The only group that is likely to lynch someone these days is antifa.

  • JFree||

    Oh really? Can't link to all these - but try Brandon McClelland, Srinivas Kuchibhotla, Ian Grillot, Alok Madasani, Benjamin Nathaniel Smith, Balbir Singh Sodhi, Kevin Harpham, Stephen Tyrone Johns, Satwant Singh Kaleka, Ricky John Best, Anthony Sawina, Timothy Caughman, Heather Heyer. Dozens of others (hundreds if you want to include injuries) who I could also name.

    It takes a particularly evil sort of blindness to believe that the other side is always the perpetrator and your side is always the victim

  • Fats of Fury||

    Get real. Lynching is a mob action against an alleged criminal and the mob generally goes unpunished and there have many whites who've been lynched . Inter-racial murders aren't lynchings. Looking at your list of victims, the perpetrators have been charged or convicted of the crimes generally with hate crime charges thrown in.

  • Rock Lobster||

    Don't look now, but you've triggered one of the resident progs.

  • Rock Lobster||

    We have other priorities at the moment.

    Congress must pass a bill deploring the impressment of American sailors on the high seas by the British Royal Navy. Why, this could lead to a second war with the British if not firmly dealt with now!

    We also have to confront the pressing issue of the Barbary Coast pirates hijacking and holding to ransom crews of American merchantmen. This aggression must not stand!

  • Number 2||

    We need a federal law making horse thievery a hate crime!

  • Rock Lobster||

    I'm down with that. I hate horse thieves.

  • Rock Lobster||

    I'm down with that. I hate horse thieves.

  • Rock Lobster||

    And I'm not very fond of squirrels, either.

  • loveconstitution1789||

    I hate squirrel thieves.

  • Mark22||

    The article makes no sense.

  • Leo Kovalensky II||

    Try imagining that Obama is president again

  • Ken Shultz||

    Merkel may be in big trouble.

    "Mr. Seehofer had handed Ms. Merkel an ultimatum two weeks ago: Find a European deal that stops migrants with asylum applications in other EU countries from entering Germany or he would instruct police to start turning back such migrants at the border.

    Ms. Merkel had signaled that she would see such a move, which she opposes, as insubordination. Her Christian Democratic Union party​ backed her position on migration late Sunday.

    The wide-ranging EU deal, which Ms. Merkel championed and which drew plaudits from some senior CSU politicians, had raised expectations in Germany that Ms. Merkel's Christian Democratic Union and the CSU could bury the hatchet on Sunday as leaders of the two parties met in the afternoon to review the agreement.

    But a CSU official told The Wall Street Journal that Mr. Seehofer, addressing senior party colleagues in Munich on Sunday, had labeled Friday's deal as insufficient and not meeting the conditions he had set to postpone his proposed closure of Germany's borders. Later, after hours more of meetings, Mr. Seehofer offered to resign as chairman of the CSU and as interior minister, a proposal that the party's board does not want to accept, the CSU official said.

    ----WSJ

    http://www.wsj.com/articles/ge.....1530452238

  • Ken Shultz||

    CSU is a party and a junior partner in the governing coalition to Merkel's CDU party. As part of the deal that made the governing coalition, the CSU guy got to be minister of the interior, overseeing immigration enforcement. It would be one thing if the CSU decided they'd rather get rid of Seehofer, their own interior minister, rather than pull the rug out from under Merkel and lose the coalition, but if the rand and file in the CSU decided today that they'd prefer to end the coalition rather than accept Seenhofer's resignation (or cave on his immigration demands), then Merkel may be out on her ass.

    Looks like they'll call her bluff maybe as soon as tomorrow.

    It should be noted that pretty much everywhere you go in the developed world, we're seeing voters and politicians become more populist on the issue of immigration. Donald Trump was not a fluke or an outlier. His positions are very much in the mainstream of public discourse in the developed world--regardless of whether you agree with him.

  • Rock Lobster||

    Maybe the voters realize that a country can sustain either open borders or a welfare state, not both, and are weighing in with their choice. The politicians? They just know which way the wind blows.

  • Ken Shultz||

    I think it's just about elitism and the reaction to elitists thinking they can set immigration policy however they want--and completely disregard democracy on that matter.

    What's driving European populism is immigration policy being set in Brussels without much of any regard for what people in London, Paris, Berlin, Rome, or Madrid think.

    Unaccountable elitists setting unpopular policies without any input from democratic government inspires populist reactions?

    Who knew?!

  • loveconstitution1789||

    Exactly Ken. The EU bureaucrats pushed open borders not the majority of Europeans.

    Same in the USA. The minority are pushing open borders not the majority of Americans.

  • Leo Kovalensky II||

    People want their governments back in the EU.

  • Leo Kovalensky II||

    Threading fail

  • JeremyR||

    How could 1919 be the height of anti-German hysteria during WW1 when it was after WW1?

    And regardless, doesn't it make some sense that when you have enemies countries, to maybe be careful letting "immigrants" from those countries in?

  • loveconstitution1789||

    Technically WWI did not end 7ntil the Paris Peace accords of 1919. There was an armistice in november 1918.

    North and south korea had an armistice agreement until north korea rejcted it multiple times over the last 65 years.

  • John Thacker||

    He also joined with the progressives and wrote Village of Euclid v. Ambler Realty, upholding the scourge that is zoning. (In that particular case the zoning in question was absolutely intended to get around Buchanan v. Warley, where Sutherland was on the good side, and effect segregation.)

  • Jacky888||

    The 8 best digital camera for the money the8best