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The federal judiciary still works

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You’ll recall that a federal judge in California ruled against Trump in the dispute over his use of the National Guard to protect federal buildings in Los Angeles from rioters who demand a permanent open border.

That judge happened to be the 83-year-old semi-retired little brother of 86-year-old liberal retired Supreme Court Justice Stephen Breyer.

Big Brother must have been so proud.

First, a word about federal judges that most people are not aware of. Federal judges can go on “Senior Status” as they get old. That means they get full pay and benefits including perks such as secretaries, beautiful offices, and young and attractive law school graduates to do their research and listen to their genuflections.

Oh, and a palatial courtroom for their exclusive use (though it sits empty 90% of the time), a fancy black robe, and a guy to shout “ALL RISE” when they walk in. (You’re supposed to remain standing until the judge mutters, “Be seated.” That’s one of many, many things they don’t teach in law school, but you quickly learn it on the job.)

These Senior Status judges are expected to do a bit of work. But only as much work as they feel like doing. They can work 35 hours a week, or 15.  Unlike ordinary judges, they can turn down any case. The cases they turn down go back into the hopper to be assigned randomly to another judge.

It shouldn’t come as a surprise to you that most federal cases are very boring matters. Senior Status judges turn them down left and right.

Did I mention that they get full pay, benefits and perks fit for a king including a guy to shout “ALL RISE”?

It’s a good gig. So much so that in the federal district covering Colorado, for example, 9 of the 17 judges have elected “Senior Status.” In other words, over half of the federal District Court judges in Colorado are part-time but receiving full pay, benefits and perks.

There was a day when federal District Court judges didn’t exploit Senior Status. After all, they had to share the elevator and lunchroom with full-time colleagues who were tasked with the boring cases that the Seniors had turned down. And they were cognizant of the financial burden they and their entourage and appurtenances imposed on taxpayers.

That day seems to have passed.

Back to California. The Little Brother who ruled against Trump in the federal District Court there has been on “Senior Status” for the last 14 years. As a Senior Status judge, Little Brother could have turned down this case. He didn’t. He took it, heard it, and issued a decision against Trump.

Ah, but not all is lost. Even this case is not lost. The Trump administration appealed Little Brother’s order. Unfortunately, the appeals court covering Little Brother’s district court is the liberal Ninth Circuit. But fortunately, the liberal Ninth Circuit overturned Little Brother’s order. Trump won his appeal.

Appeals are heard by a three-judge panel of appellate judges selected at random from the sitting judges of that circuit. Trump was very lucky in that two of the three were Trump appointees. Before you conclude that the fix was in for Trump, be aware that the third was a Biden appointee and he, too, ruled in favor of Trump.

The decision was not a close call. The appellate judges noted that the President does not have wholly unfettered authority to call out the National Guard – there are statutes limiting that – but in general the President is entitled to some deference.

In this particular case, there was rioting in the streets. That’s enough.

The case now could be re-heard by the Ninth Circuit in an “en banc” hearing of 11 appellate judges randomly selected from the 29 active appellate judges in the Circuit.

Then, or even before then, the losing party can appeal to the Supreme Court where six of the nine Justices are Republican appointees. It’s likely that Trump will win there.

Apart from the merits or demerits of this particular case, here’s the point I want to make. The American federal judiciary still works.

It’s true that some of the judges don’t work as well, or as hard, as they could, or they should, but as a general rule they do indeed work in every sense of the word. Virtually all of them are very bright men and women with outstanding credentials, though some are too old for the job.

One more related point. The inflammatory allegation that federal court judges are “bought off” or otherwise corrupt is utterly unsubstantiated and, in my personal experience, unfounded. Despite the abuse of Senior Status, and despite the age-related limitations of some judges, never once in my career did I see the slightest evidence of corruption in any of them.

Justice Breyer’s Little Brother may be an ideologue, and that’s bad, but there’s no evidence that he’s corrupt. There’s a remedy when a judge is an ideologue. It’s called an appeal. It works.

Glenn Beaton practiced law in the federal courts, including the Supreme Court.

Trump is not a fascist . . . but . . .

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At the outset, let me state my bona fides. I voted for Trump three times. I publicly supported his candidacy back when the media deemed him and his supporters like me stupid racists.

That was back when “Trump is literally Hitler” was the meme of the moment amongst the kind of people who don’t know the meaning of Hitler and don’t know the meaning of “literally.” Which is to say, most of the current mainstream media.

For the record, Trump is not Hitler, not literally or metaphorically, nor is he a fascist.

Contrary to popular belief engendered by the lamestream media, the word “fascist” does not mean “Republican.” Nor does it mean “very conservative.” In fact, Republicans and other politically conservative people are nothing like fascists at all.

Fascism is notoriously difficult to define, perhaps because it is used as an epithet by the ignorant more than as a descriptor by the educated. But most would say it involves a tendency toward, or actual exercise of, strong autocratic or dictatorial control. It also frequently involves forcible suppression of opposition, belief in a natural social hierarchy, subordination of individual interests for the perceived interest of the nation or race, and strong regimentation of society and the economy.

OK, let’s look at President Trump.

He’s missing the race component. Indeed, many of his political appointments have been racial or ethnic minorities.

Some people would say, “Oh, but those minorities don’t count because they’re conservatives.” To those people, I have a question: So, who’s the bigot here when you’re the one willing to deny the color of a person’s skin because he lacks the “correct” viewpoints?

The nationalistic component is a closer call. Trump shows little interest in invading Poland or France, but does seem to hanker for a little elbow room up north in Greenland and Canada. Still, forcible conquest doesn’t appear to be on his radar. (But what exactly is the purpose of his conquistador callings?)

As for a belief in a natural social hierarchy . . . gimme a break, the guy’s a real estate developer. If there were a natural social hierarchy, real estate developers would be at the bottom.

Here’s the component that worries me: He doesn’t suffer disagreement lightly.

It would be one thing if Trump shot down disagreement with brilliant argument and nuanced analysis. In doing that, my favorite commentator on the conservative side – or any side, for that matter – was William F. Buckley. He won arguments in such eloquent, understated style that the people he persuaded to his side left thinking they had agreed with him all along.

Trump, not so much. If you agree with him at the outset, he’ll draw cheers from you. But that’s not a persuader; that’s a cheerleader.

As for those who disagree with him, he quickly escalates – or, rather, gutter-stoops – to name-calling, arm-twisting and outright bullying.

There’s a place for that tactic, to be sure. Army boot camp comes to mind.

In politics and people, however, such an approach tends to backfire. You can bully people only so far, and you can’t bully strong people at all.

Moreover, the bullying itself can backfire. For example, how is Vladimir Putin supposed to back down once Trump tells him to? Even the girly-men at Harvard have stood their ground (sort of) once Trump publicly told them to take a knee. The first rule of effective bullying is to do it in private where the object of your bullying doesn’t need to save face.

But this self-pleasing bullying, this autocratic nature, is in Donald Trump’s DNA. Recall that this man took time away from making billions in order to be on a stupid TV reality show where he gloried in screaming “You’re fired!”

The most recent “You’re fired” moment came this week when Trump lashed out at some judges – one of which he appointed – for striking down his tariff program as non-enabled by the laws he’s citing. The judges may or may not be right, but it’s a matter that will be decided by the Supreme Court on appeal, as it should be, not by playground bullies. Meanwhile, calling the judge names is not an effective strategy for a litigant.

The judges that disagree with him are reinforced in their disagreement when he tries to bully them. They have lifetime tenure and no fear of Trump. And the judges who agree with him, give pause. What self-respecting judge (and judges have a lot of self-respect) wants to be known as a Trump toady?

Oh yeah, the Supreme Court. He lashes out at them, too, though he appointed three of the nine. And he lashes out at the conservative Federalist Society for helping him choose the judges he lashes out at. I’m sure he’s just one lash away from lashing out at the people who helped him choose the Federalist Society to help him choose the judges.

Maybe all this plays well with a certain component of the base, and so it’s all clever triangulation by Trump. More likely, it seems to me, he just has the nature of an authoritarian bully.

It’s his greatest weakness. And I will not be voting for him a fourth time.

But he’s not Hitler!

To generate book sales, the former Director of the FBI advocates 86’ing the President

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James Comey has a book coming out, so he’s looking for attention. He got it.

He posted on Instagram a photo of shells on the beach arranged in the numbers “86 47,” the last two numbers being a little separate and bigger than the first two so as to differentiate them. His accompanying comment was:

“Cool shell formation on my beach walk.”

In case you were born yesterday, the number “86” is slang for terminating a person or thing. If a gangster talks about “86’ing” you, you’re toast. The number “47” of course corresponds to President Trump as the 47th President.

Comey got the attention he sought, and then some. Then he deleted the Instagram post, and put up a new post “explaining” that:

“I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”

Wait a minute. In his first post, Comey pretends that the numbers were merely a “cool shell formation” while they were obviously much more than that; they were the numbers “86” and “47.”

So why did he pretend they were just a shell formation in the first post?

In his second message, he contradicts his first in admitting that he was aware it was a “political message” but contends he was not aware that it was a violent one. Really? This is the former Director of the FBI.

Then what did he think it meant? He never says.

The Secret Service charged with protecting the President takes seriously threats to his safety. The latest reports are that they’ve interviewed Comey.

That presents a problem for Comey. It appears likely that Comey himself arranged the shells on the beach. If he maintained his story that he simply stumbled across them, he was probably lying.

Such a lie could be uncovered by the contents of his phone. Multiple pictures of his “shell formation” could be on his phone showing various iterations until he settled on the one he liked.

Such a lie to the Secret Service investigators would constitute perjury, as Comey well knows – since he put people in jail for that.

On the other hand, if he told the truth to investigators, he revealed himself for what he apparently is: A former Director of the FBI who is willing to encourage harm to the President in order to sell books.

In today’s sordid world, it will probably indeed work to sell books. Fellow travelers on the left will buy his book with no intention of reading it, just to support his advocacy of violence. After all, they’ve normalized calls for political assassination, as we saw when they lionized a maniac who murdered a health insurance CEO on the street.

And it may work to accomplish more, too. It may work to achieve its stated goal of 86’ing the President. These are dangerous times, and this sick former FBI Director isn’t helping matters.

The only hotness in Hogg is that he’ll soon be bacon

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The Democrat who goes by the initials AOC is the hottest Democrat in Congress. I know that’s a low bar, but still.

It’s the main reason Democrats like her. Be honest: Who would you like to share a voting booth with – AOC or Nancy Pelosi? And then there’s also the possibility of voting from home . . . .

I’ll admit it’s a bit creepy to see Her Hotness and 163-year-old Bernie Sanders together on a stage performing Dem-porn acts such as “the rich don’t pay taxes” and “Republicans are a threat to Democracy” before at least one of them gets driven to one of Bernie’s mansions.

But in creepy cradle-robbing and grave-robbing stunts, they have nothing on the Republicans. Have you seen Bill Belichick’s new 24-year-old girlfriend? (I thought the guy was just a great football coach. Turns out, he’s a god!)

And then there’s a new kid on the block named David Hogg. He’s a hero because he was at school one day when a nutcase went ballistic with a gun.

Hogg saved several students. Well, no, he didn’t.

Hogg disarmed the gunman. Well, no he didn’t.

Hogg went to confront the gunman. Well, no he didn’t.

Hogg hid in a closet. Yes, he did.

Hogg has made a living selling the day he hid in a closet. His pitch is that we should ban guns. Forget about police protection in the schools. Forget about mental health issues. Forget about arming the teachers. No, we should ban guns.

Because then, the gunmen couldn’t get a gun legally at a gun store, and they’d have to get them illegally instead. They’d have to get one or more of the 400 million that are in circulation in America.

Democrats love this pitch. Not because it would reduce gun violence – remember the 400 million guns already out there?

No, Dems love the pitch for two reasons. One, it punishes gun owners, and they hate gun owners. Or at least they think they do. They forget that most gun owners are not pickup-drivin’ beer-drinkin’ tobacky-chewin’ GOP-votin’ rednecks. Most don’t drop their drawers or even their g’s. Most are people like you and me. Well, at least me.

Two, banning guns makes Dems feel virtuous. It means they’re doing something and, more importantly, it means they can say they’re doing something. In the world of Democrats, it doesn’t matter if what you do is effective. It only matters that you do it and talk about doing it.

Hogg rode this pitch all the way to the Democrat National Committee Vice Chairmanship. (I won’t make a comment about the Chairman of Vice, not with Belichick on the page.) Hogg became a male AOC. White smoke rose from the DNC office, and it wasn’t because they were burning emails. They all but christened him “His Hotness.”

Then he started saying some things apart from his DNC-approved gun-taking pitch. He suggested that the old Democrats should retire to make way for young ones. He himself, coincidentally, happens to be a young one.

But not all old Democrats should retire, he said. Only the powerless ones he thought he could risk offending. That wouldn’t include 85-year-old Nancy. She’s fine, he assured us. Really not even old!

He miscalculated. Turns out, the old powerless ones he said should retire do, in fact, have some power.

Hogg is now being ousted from his Chairman of Vice position. He’s cooked. He’s fried. He’s bacon.

But he’s still got his gun-taking schtick. Expect more books and speeches.

Joe, don’t go!

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On those rare occasions when I’m in need of an emetic, I’d rather have a finger stuck down my throat than have the image of Joe Biden stuck through my retina.

But he’s baaaaaack anyway. Democrats hate that he’s back.

What my enemy hates, I should like.  And so, I do. Even though it hurts my eyes and turns my stomach.

Democrats hate it for the same reasons that I like it. Every Joe sighting reminds people of why they voted against him. He demonstrates that he’s a creaky, corrupt, cardboard cutout that is incapable of thought and practically incapable of reading a teleprompter containing the thoughts of people who do his thinking for him.

Every appearance reminds people that the Democrats lied that he was “sharp as a tack” right up to the minute that he proved beyond a reasonable doubt that he was dull as a dullard, at which time they dumped him like a stained, plaid Laz-Z-Boy from the 70s and declared that their hand-picked replacement (why bother with primaries to ascertain the people’s preference when you have Nancy, Chuck and Barack?) was

. . . wait for it . . .

. . . “sharp as a tack.”

And joyous, to boot. And no known hair plugs, capped teeth, or criminal family.

I almost feel bad for Joe that the Democrats are not even pretending to welcome him. Almost.

“Joe, please go” Is their typical greeting. Guffaws are their typical reaction to his tiresome contention that he would have won the election (if only he’d had the courage not to quit). Yawns are elicited by his warnings that the Republicans want to end Social Security, end motherhood, and end the world.

Rage is the emotion generated by him reminding Democrats of his truculent, selfish refusal to quit when the quitting was good – back when the primaries were playing out and a competent new candidate could be chosen in the way they’re supposed to be. Embarrassment is what they feel when they see him stumbling, bumbling, humbling and crumbling on a stage.

Mind you, I don’t blame Joe for being semi-senile. Lots of people wind up there. Supreme Court Justice Ruth Bader Ginsburg in her final years comes to mind.

Ginsburg is another person whom I adore because she screwed the Democrats by quitting long after the quitting was good. Ginsburg’s encroaching senility so clouded her judgment that she could not see it encroaching, and so she failed to quit in time for Barack Obama to name her replacement.

She died at age 87 while still on the bench (when she was not in the hospital). After decades of reliably liberal votes, the legacy she left is that her replacement is Amy Coney Barrett, nominated by Republican President Trump and confirmed by a Republican Senate.  

Back to Joe being back. Surely, he can still distinguish between friends and enemies. Given that his friends wish he’d go away for good, and his enemies are happy he doesn’t, one might ask, why doesn’t he go away?

This might shock you, but politicians have big egos. They crave attention. It’s not exactly a monastic profession.

I don’t hold that against them. The need for attention is fundamental to mankind (and, to a slightly lesser extent, womenkind). Some people achieve it by being loved, others achieve it by being hated, and still others achieve it by writing stupid blogs where they weave themselves into the narrative.

What I hold against Joe is not his basic need for attention. What I hold against him is his terrible policies, his family corruption, his gross incompetence, and his shameless lies.

I’m glad he’s back to remind Americans of those things. As he continues to decline, I hope he sticks around. Cement that legacy, Joe.

Is the American Pope a case of follow-the-money?

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To everyone’s surprise, the new Pope is an American. Like almost everyone else in the world, I’d never heard of him before yesterday. But he looks like a straight shooter and a stand-up guy. And, as popes go, he looks pretty healthy.

For readers in my tribe who are dismayed that he once expressed some passing criticism of President Trump’s summary deportation of illegal aliens, I ask you: What’s a clergyman supposed to say – kick the SOBs out?

I did not expect to see this – an American Pope – now or ever. Reports are that the smoke-watchers crowding the Vatican grounds didn’t either, and were a bit disappointed.

That’s not because Europeans hate or even dislike Americans. The practice of scorning American tourists ended at least a generation ago. The days of ugly Americans are now replaced by the days of rich Americans – and everyone likes customers who are rich.  (That said, it doesn’t hurt to greet people in their language when you’re in their country. “Buenos dias” and “bonjour” fetch a lot more smiles than “Hey, howya doin?”)

So don’t be fooled by Americans who sanctimoniously advertise to fellow Americans that they identify themselves as Canadians, not Americans, when they go to Europe, ostensibly to trick the Europeans into liking them. Those Americans are revealing a dislike for Americans alright – by themselves. Those Americans hate America, and they project that hatred onto the world.

Although Europeans don’t hate Americans the way some Americans hate Americans, I still wouldn’t expect the sun-drunk, ecstasy-filled citizens of Rome milling about St. Peter’s Square this week to be whispering, “Let’s pray they elect an Americano!”

And they weren’t. So why did the Cardinals elect an Americano?

Here’s a relevant factoid: The Vatican has deep financial problems.

Here’s another relevant factoid: When the Notre Dame burned a few years ago, guess who donated the greatest amount for the rebuilding, apart from the French themselves (several of whom were extraordinarily generous). It was the Americanos.

Connect the dots. 

I hope the strategy pans out. We need the Catholic Church more than ever before – and I say that as a Protestant.

The fix is in to repeal Colorado’s Taxpayer Bill of Rights

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Back in 1992, the citizens of Colorado passed an amendment to the state constitution to limit tax increases. They called it the Taxpayer Bill of Rights, or TABOR.

TABOR did not eliminate taxes, nor did it prohibit tax increases. Instead, it merely limited tax increases to the rate of inflation plus the population growth of the state.

Even those limits can be exceeded by a mere majority of the voters of the jurisdiction seeking to exceed it. If the voters of Colorado want to raise the state income tax rate, for example, they can do so with a simple majority vote in the next election. Likewise, if the citizens of a municipality want to raise the city sales tax, they can do so by a simple majority vote in the next election.

The people of Colorado love TABOR. That’s true even now, when Colorado is a solid blue state with a Democrat governor, a Democrat majority in the state legislature, an all-Democrat state Supreme Court, and a population that voted for Kamala Harris by an 11-point margin.

But the Democrat establishment hates TABOR, and it’s not just because it has the dreaded “Bill of Rights” phrase in its name. They hate it because it accomplishes its objective – it limits tax increases that are not approved by the citizens being taxed. Democrats want taxes to go up far faster than inflation and population growth, and they want it to happen without the OK of the voters.

Democrats have tried to repeal TABOR, have tried to challenge TABOR in court, and have tried various work-arounds, all unsuccessfully.

But Democrats might succeed with their latest challenge. The Democrat-controlled legislature is passing a resolution calling for the legislature as an entity to sue the state for a court declaration that TABOR is a violation of the U.S. Constitution. The purported violation is that TABOR runs afoul of the Constitutional mandate that states be run by a “republican” form of government. That’s “republican” with a small “r.”

A “republican” form of government is one where the people elect representatives to pass laws, as distinguished from a direct “democracy” where the people themselves pass the laws. The Democrats contend that a system where people have the right to approve or disapprove tax increases by direct vote, is not a “republican” government, and therefore is in violation of the U.S. Constitution.

Note the irony. The Democrats are suing on the grounds that the Constitution prohibits a democratic form of government and mandates instead a republican one.

Whatever the semantics, the Democrats have a lousy argument. But the fix is in.

You see, the plaintiff in this lawsuit will be the state legislature which, as mentioned, is controlled by Democrats. Fair enough.

But the defendant in the lawsuit will be the State of Colorado – which is also controlled by Democrats.  In fact, the attorneys who will represent the state in a purported “defense” of TABOR are the Colorado Attorney General’s Office. That office is an elected position, and is currently held by a declared Democrat who ran as one.

In short, to get TABOR thrown out, the Democrats are bringing a collusive political lawsuit against other Democrats. One set of Democrats sues a second set of Democrats, and the second set pretends to defend the suit. Wink-wink.

It gets worse. The federal district court in Colorado where this case would be heard is comprised of mainly Democrat appointees. Five of the seven active judges were appointed by Joe Biden.

The final insult is that the taxpayers will pay the legal fees for both sides of this farcical suit. Because the plaintiff legislature is a state entity, the state will pay for its lawyers. Because the defendant state is also obviously a state entity, the state will also pay for its lawyers. Although the Colorado Attorney General’s Office which will pretend to “defend” the lawsuit may not do so vigorously, it will certainly run up a healthy legal bill.

Last time this happened, the state spent over half a million dollars on lawyers, just for representing one side of the case. This time, the state will pay for the lawyers on both sides, and lawyer rates are higher now.

Welcome to Cali-rado.

Should we kill all the alligators, or get out of the swamp?

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Lawyer advising client engaged in expensive litigation: The goal should be to get out of the swamp, not to kill all the alligators.

Dishonest media-alligators undermined President Trump’s first Presidency with bogus charges of Russian collusion. Corrupt deep state-alligators fabricated allegations to defeat his re-election in 2020. Partisan prosecutor-alligators in New York and Georgia brought bogus charges in trying to derail his election last year.

Overreaching judge-alligators in some of the federal district courts now seek to undermine his national security policies – an area that the Constitution largely reserves to the President. 

It’s a testament to Trump’s courage and stamina – and to the nation’s structure and people – that he has fought and mostly beaten the alligators over the last ten years. In his spare time, he got himself elected President twice and survived two assassin-alligators.

He’s been up to his elbows in alligators. I understand why he’s going after them now. I probably would, too.

It’s also important to note, in fairness to Trump, that we didn’t elect him to get us out of the swamp; we elected him to drain it. Draining the swamp is inevitably hard on the alligators who feed there.

But here’s the issue. Not all of Trump’s targets today are alligators and not all are even in the swamp. 

Such as Big Law.

I don’t expect you to feel sorry for girly men and manly girls pulling down seven-figures to say res ipsa loquitur. And it’s a fact that Big Law (which I’ll define as the several dozen American law firms with over 1,000 lawyers) is a mostly liberal crowd. That is evident from their political contributions which are largely to Democrats, and from their pro bono activities which are mostly for liberal causes.

But you could say the same thing about nuns. (Not the seven-figures part.)

In my practice, seldom did I see Big Law behaving like a political institution. In fact, the firms that comprise Big Law are rivals which rarely act concertedly or even cooperatively. Rather, they make a good living by fighting with one another on behalf of their opposing clients.

Those clients are notably moderate, since the executive ranks of the Fortune 500 include very few radicals. In their choice of lawyers to represent them in their next billion-dollar merger or bet-the-company antitrust case, they aren’t exactly looking for Che Guevara.

As for individual lawyers, the recipe for success in Big Law has nothing to do with political leanings. The recipe is: do great work, have great clients, and bill great hours. (I had at least one of those ingredients when I was in Big Law, and wound up doing OK.)

Big Law is simply not an alligator, and, even if it is, it’s not in the D.C. swamp (with the possible exception of the firm that was involved in the Steele Dossier, an involvement from which the firm has distanced itself after the departure of a key lawyer).

Even if Big Law firms are indeed Democrat institutions, notwithstanding what I’ve pointed out above, being a Democrat merely makes a person hypocritical, socialistic, loathsome, and halitotic. It doesn’t make them a criminal.

So, is it appropriate to bring the enormity of the U.S. Government to bear on private enterprises like Big Law for the sin of choosing one political doctrine over another?

If so, then why limit it to Big Law? Why not have the government go after Big Business for their political leanings? Why not go after Big Billionaires for theirs? Why not go after Big You and Big Me for ours?

Why not go after Big Nuns?

Before you moan “damned straight!” consider the fact that someday there will be another Democrat President, someday there will be another Democrat Congress, and someday there will be another Democrat Supreme Court.

If America is to continue, it will be as a nation of predictable laws and sound principles, not a series of regimes exacting revenge on their predecessor regimes.

That said, I can hardly wait for Trump and Musk to bring down the teachers’ unions.

Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.

Liberals imposed their racial discrimination by attaching strings to federal money. How’s that working out now?

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Executive orders and administrative agency rules going back to the 1960s required businesses contracting with the U.S. Government to engage in “affirmative action.”

That was the euphemism of the day for racial discrimination. They couldn’t just call it “racial discrimination” because that term had, naturally and appropriately, developed a negative connotation. It suggested a world where people were judged not by the content of their character, but the color of their skin. 

Over the ensuing decades, that euphemism “affirmative action” developed a similar negative connotation. By favoring people with certain skin colors, “affirmative action,” just like “racial discrimination” before it, suggested a world where people were judged not by the content of their character, but the color of their skin.

And so, the euphemism “affirmative action” was retired in favor of a new euphemism, “Diversity, Equity and Inclusion.” Capitalizing the words was evidently to make the term look grander.

Moreover, the capitalized words lent themselves to acronymizing into “DEI.” We thus doubly disguised “racial discrimination” with the use of an acronym for a euphemism.

But the double disguise was deliberately transparent. Everyone knew “DEI” meant “Diversity, Equity and Inclusion,” which meant “affirmative action,” which meant “racial discrimination,” which meant that people were judged not on the content of their character, but on the color of their skin. 

These farcical theatrics reached their comedic conclusion with “President” Joe Biden, who promulgated Executive Orders, probably signed by autopen while he was mindlessly eating ice cream cones, requiring that companies doing business with the government submit written statements certifying their commitment to judging their employees by the color of their skin and not by the content of their character.

The requisite commitment to racial discrimination was not limited to government contractors. Practically everyone receiving federal money – and that’s practically everyone – had to show they were committed to racial discrimination. Schools receiving DOE money, cities receiving HUD money, states receiving DOT money, anybody getting any money from any government alphabet – hell, the whole world – had to show its DEI commitment.

But alas, DEI, like its predecessor euphemisms, had already taken on a negative connotation of being what it was – an acronym for Diversity, Equity and Inclusion, which was a euphemism for affirmative action, which was a euphemism for racial discrimination.

It was time for a new euphemism. Conveniently, a new President had just been elected.

But the new President did something no President had done in generations. He effectively said, “No more racial discrimination, regardless of what acronym or euphemism you choose to call it by.”

He said he was reversing the Executive Orders and abolishing the federal regulations that required companies, schools, cities and states to certify their commitment to racial discrimination.

He even said he would require the opposite from them – he would require them to certify that they do not engage in racial discrimination. And he has threatened to withhold federal money from them if they continue their racial discrimination.

In all of this, he appears to have the Supreme Court on his side. Chief Justice John Roberts declared in a case some years ago that:

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

For that tautology, liberals of course called him a racist. But he and a majority of the Supreme Court finally followed through in a case two years ago outlawing racial discrimination at the liberal establishment’s headquarters, Harvard University.

Of course, some schools and companies will simply provide false certifications. They will certify that they don’t engage in racial discrimination, even as they continue to. People who employ acronyms and euphemisms to disguise their actions can be expected to similarly employ lies to conceal those same actions.

But this is a start. And to put teeth into it, the President has at his disposal an entire Department of Justice which appears newly devoted to real justice – not the social kind.

Is it productive for Trump to push legal limits?

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I won’t leave you in suspense. I’m a lawyer, so the answer is sometimes yes, sometimes no.

If you’re in the tribe that thinks whatever Trump does is wrong, or the opposite tribe that thinks whatever Trump does is right, then read no further. Just skip the analysis and instead warm up your cheers or your jeers for the Comments below, as your tribe dictates.

But if you’re in neither tribe, but are just a political partisan (which is different than being in a tribe) or a political neutral (are there any these days?) then read on.

It’s important to recognize at the outset that Presidents push legal limits all the time, and they often lose when the matter is adjudicated in the courts. The actions of Joe Biden’s administration were frequently struck down as being in violation of applicable laws or Constitutional provisions. That includes actions on important matters concerning the immigration laws, the environmental laws, the deference to administrative agencies, the wage laws, and student loan forgiveness.

Before you exclaim “Yeah, Biden was a crook,” be aware that this is something that just happens with Presidents, including Bush, Obama, Reagan and nearly every other one. Abraham Lincoln illegally suspended the Constitutional habeas corpus rules, thereby precluding wrongly imprisoned American citizens from seeking court reviews of their cases.

(All that said, Biden was indeed a crook.)

It would be a simpler world if the good guys and bad guys and all the rest of us always knew exactly what’s legal and what’s not. We’d just send the bad guys to jail when they did something that’s not. We wouldn’t need trials, courts, judges and juries.

But our world is complicated and fact-dependent, and so is the law.

That’s why I have no problem with President Trump testing the limits. If he didn’t, he wouldn’t be doing his job – a job I voted for him to do, three times (in three elections, I hasten to add).

A good example is the issue of birthright citizenship. The 14th Amendment appears to state that a person born in this country is automatically a citizen of the country, regardless of whether the mother is in the country legally.

But the Amendment contains a vague qualifier “subject to the jurisdiction thereof.” Trump’s argument is that this qualifying phrase excludes from citizenship a baby born in this country if its mother is here illegally. 

Although I hope Trump’s argument will succeed, I think it ultimately will not. But it’s a non-frivolous argument, and I would not be shocked if the Supreme Court ultimately buys it (though I would indeed be surprised).

In such a case, it’s fine for President Trump to make the argument. Let it go up to the Supreme Court, as Trump has requested, and let them decide the matter. That’s the way the system is supposed to work, and it nearly always does.

By the way, six of the nine Supreme Court Justices were appointed by Republicans who might lean toward Trump’s view of the matter.

(Here’s where you can complain that some of the Republican-appointed Justices are not “real conservatives.” Fine. But if that’s the case, then the blame lies with the Republican Presidents who appointed them – who was President Trump in his first term in the case of three of the six.)

Now here’s where things get dicey. What happens if Trump’s argument on birthright citizenship fails at the Supreme Court?

Trump himself has said he has no intention of violating court orders. That should end the matter. If it doesn’t, then we truly have a crisis, and I don’t mean that in a good way.

We had a hint of a crisis this week. The Department of Justice put Venezuelan immigrants alleged to be gang members on planes to deport them. There was apparently no contention that they were here legally, but there was also no due process finding that they were indeed members of the identified gang.

A judge ordered that they not be deported for another two weeks so that the matter could be given minimal due process. Meanwhile, the individuals were safely in the DOJ’s custody.

The judge at a hearing explicitly told the DOJ that they should instruct any planes already in the air to turn around. However, the judge’s subsequent written order did not include that instruction.  

Be aware that judges often issue orders orally. There’s no magic about reducing an order to writing.

But the White House has contended that the absence of the judge’s oral turn-around order in his written order meant that it was no longer in effect. Therefore, they say, they were free to let the planes proceed without intending any violation of the court’s order.

I find that argument dubious.

But I’m very glad they made that argument, rather than simply stating “We don’t follow court orders we don’t like from judges we don’t respect.”

That sort of belligerence would be unconstructive, and would cost Trump the support of most Americans. We’ve come too far to lose it all in an ill-advised cafeteria food fight.

Unfortunately, however, that’s the belligerence I’m seeing in some of the internet commentary from the tribe.

Let’s look at the big picture. In virtually all democracies (almost by definition), the final interpretation of laws is made by the judicial branch, not by an executive branch. The Constitution that we conservatives hold dear requires the executive to defer to the courts in interpreting the nation’s laws.

If the executive doesn’t like a law, his remedy is to get the law changed if the people’s representatives concur. It’s not to say “I can do whatever I want because the people elected me.”

That could be our system, but it clearly is not. If it were, then all the judges – and, for that matter, all the legislators – could just go home. But it would be to a very different home.

Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.