Newsletter | March 2, 2023
With deepening polarization between “Red and Blue” crushing the fabric of our great nation, is there any wonder that a social media post about a “national divorce” in America rose to the top of the news cycle earlier this week?
Georgia Congresswoman Marjorie Taylor Greene stirred the controversy when she wrote on her social media platforms that it may be time for the two Americas, Red and Blue, to part ways. A look back at American history tells us that she is not the first to call for a national divorce, a phrase that goes down a little easier than secession. In fact, as we continue our exploration of the Federalist Papers in our weekly newsletters, the proposition dates back to the origins of our nation.
Some of the Founding Fathers looked at the original thirteen colonies and saw a wide range of different peoples and cultures. Different industries, for instance, gave rise to different cultures. A Georgia planter spoke the same language as a New York merchant, and they worshipped the same God, though they were likely of different denominations. But given the difference in their industries, their cultures were different. Sometimes their financial interests were in opposition, as well. Accordingly, there were many who believed that the thirteen newly independent states should stay separate entities.
In today’s discussion, the reasoning goes that entirely different value systems have emerged, with the blue cities and areas promoting unrestrained progressivism, while the red states are rooted in traditional, conservative values. How can they co-exist? Do they share enough to call their common ground a country?
The authors of the Federalist Papers — Alexander Hamilton, James Madison, and John Jay — made the case for union. And the Constitution they urged Americans to ratify in their collection of 85 essays and articles published between October 1787 and May 1788, was the contract under which the inhabitants of the new states would join together as one country.
In Federalist No. 2, John Jay, who was the first Chief Justice of the Supreme Court of the United States, argues that the new country has a special mission in the world. “This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient . . . should never be split into a number of unsocial, jealous and alien sovereignties.”
Jay argued that beyond instrumental reasons of security and economics, there were also, and more importantly, cultural and historic reasons why the thirteen states should unite as one. We share, according to Jay, ancestors, language, philosophy, and customs. And our shared inheritance is the foundation on which Americans have built the greatest nation in world history, a beacon of freedom, and a source of industry, innovation, and inspiration.
And yet it’s impossible to ignore the disastrous conflict less than a century after the Constitution was ratified that pitted men against each other. America’s Civil War stands as powerful evidence that the anti-Federalists had reason on their side, too. Maybe we are not suited for each other.
And so the question before us is the same one our Founding Fathers wrestled with. Are we, to elaborate on our great heritage, one nation drawn from many people? Or are we two nations — one determined to defend the Constitution and revere the Republic, and another with its eyes on a different dispensation, a more dangerous form of political life that appears to be leaning toward tyranny?
In this week’s Reader’s Survey, we ask for your thoughts and perspective on these questions. Please participate and on Monday at 9 a.m., tune in to watch America’s Future Executive Director, Mary O’Neill, during her live show America’s Mondays With Mary when she will share some of our fellow Americans’ insights and comments.
Federal Court Dismisses “ERA Case” While Senate Sets Hearing on Resolution to Renew
This week (Feb.28, 2023), the United States Court of Appeals for the District of Columbia affirmed the dismissal by the lower court in the case, State of Illinois and State of Nevada v David Ferriero, USCA-DC Dkt. No. 21-5096 – one in which America’s Future had filed an Amicus brief applauding the lower court’s dismissal and urging the Appeals Court to do likewise. Generally, the two states filed the suit to compel the Archivist of the United States to certify and publish the 1972 Equal Rights Amendment (ERA) as an Amendment to the Constitution. To read the USCA-DC decision, click here. To read America’s Future brief, click here.
The District Court dismissed the lawsuit for lack of jurisdictions, explaining:
(1) The plaintiffs had not suffered any particular injury, and therefore could not demonstrate a clear and indisputable right to relief – a required element of a civil lawsuit. In the District Court’s words, the plaintiffs failed to establish any existence of “a concrete injury that could be remedied by ordering [the Archivist] to act;” and
(2) The plaintiffs failed to establish that the Archivist had a clear duty to certify and publish the ERA which had not been duly ratified. Keeping in mind that, at no time, during the seven-year ratification period starting in 1972 (when Congress voted to pass it) and ending in 1981 (the deadline for three-fourths of the states to ratify it), the Court reasoned that the Archivist was under no clear duty to act because the legal validity of the ERA as an Amendment to our Constitution was not certain. The plaintiffs argued that the seven-year ratification deadline had no legal relevance to the Archivist’s certification and publication duties.
The fatally flawed arguments advanced by the plaintiffs did not persuade the Court and, accordingly, the DC Court of Appeals affirmed the lower court’s dismissal.
However, next week the US Senate is scheduled to hold a hearing on renewing the ERA and all its flaws. They are set to debate a resolution that would extend the original ratification deadline of the ERA from seven years to over 50 years in order to enshrine their “gender-identity” ideologies into the Constitution, devolving and ravaging all the strides the women’s movement has made over many years. The reason the Left needs a deadline extension instead of reworking the legislation into a new bill is to grandfather in states that ratified the ERA back in the 1970s.
The Leftists are steadfast in their philosophy that men and women should share bathrooms, locker rooms, and even prison cells. The ERA was then and still is today, all about weaving their radical and unnerving social agenda into our lives without regard to the physical dangers or other irreparable harms that spring out of ideas like gender-neutral sports teams and same-sex homeless or domestic-violence shelters.
For whatever crazy reason, progressives are determined to dismantle all obstacles that restrict perverts from infiltrating spaces constructed for women’s comfort and safety. Unquestionably their reckless ideas, if implemented, will directly lead to a rise in the incidences of acts of violence against women, including sexual assault and rape.
We, at America’s Future, applaud the Court of Appeals for a sound decision upholding the dismissal. As for next week’s Senate hearing, we hope reasonableness and common sense prevail in Congress and the Leftists’ designs to fundamentally transform and, therefore, destroy this country are kicked to the curb once again.
Round-up of the First SCOTUS Decisions of its October 2022 Term
The Supreme Court of the United States (SCOTUS) is well on its way to concluding its October 2022 term. By the end of June 2023, the SCOTUS will resolve roughly 125 cases and publish its rulings on its website. SCOTUS rulings can impact our daily lives and certainly bind all other courts across the country to the holdings in the cases. To keep our readers up-to-date and well-informed, below you will find a round-up of several SCOTUS rulings in this term. To access the SCOTUS website for more information, please visit https://www.supremecourt.gov.
Arellano v McDonough (No. 21-432)
ISSUE: Whether entitlement to certain Veterans Affairs disability benefits is subject to equitable tolling permitting an untimely application or appeal for such benefits to be reviewed and adjudicated on the merits of the application or appeal.
RULING: No. Entitlement to certain Veterans Affairs disability benefits “is not subject to equitable tolling. Equitable tolling ‘effectively extends an otherwise discrete limitations period set by Congress’ when a litigant diligently pursues his rights but extraordinary circumstances prevent him from bringing a timely action.” – Affirmed the U.S. Court of Appeals for the Federal Circuit.
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/21-432_f2bh.pdf
In Re Grand Jury (No. 21-1397)
ISSUE: Not Applicaable
RULING: Dismissed as improvidently granted.
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/21-1397_ap6b.pdf
Cruz v Arizona (No. 21-864)
ISSUE: Whether the highest courts in states may dismiss an appeal involving a criminal defendant’s constitutionally protected post-conviction relief claim(s) based on a novel and unforeseeable application of binding precedence interpreting a state court procedural rule.
RULING: No. A holding out of the highest court in any state that is based on a novel and unforeseeable application of precedence and interpretation of state procedural law is not adequate to foreclose review of the constitutional claim – Vacated the Ariz Supreme Court dismissal and remanded to the same court for further proceedings.
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/21-846_lkgn.pdf
Helix Energy Solutions Group v Hewitt (No. 21-984)
ISSUE: Whether a “daily-rate worker,” of whatever income level, qualifies as a salaried employee and therefore exempt from Fair Labor Standards Act (FLSA’s) overtime pay guarantee.
RULING: Generally, no. “Daily-rate workers, of whatever income level, qualify as paid on a salary basis only if [certain] conditions [set out in §541.604(b)] are met.” – Affirmed the Fifth Circuit Court of Appeals
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/21-984_j426.pdf
Bartenwerfer v Buckley (No. 21-908)
ISSUE: Whether the Bankruptcy Code “precludes discharging, in bankruptcy, a debt obtained by fraud, regardless [of the debtor’s] own culpability.”
RULING: No. “Section 523(a)(2)(A) [of the Bankruptcy Code] precludes discharging, in bankruptcy, a debt obtained by fraud, regardless [of the debtor’s] own culpability” – Affirmed The Ninth Circuit Court of Appeals
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/21-908_n6io.pdf
Bittner v US (No. 21-1195)
ISSUE: Whether the Bank Secrecy Act (BSA) “$10,000 maximum penalty for the nonwillful failure to file a compliant report accrues on a per-account, basis.”
RULING: No. “The BSA’s $10,000 maximum penalty for the nonwillful failure to file a compliant report accrues on a per-report, not a per-account, basis” – Reversed the decision of the Fifth Circuit Court of Appeals and remanded back to the lower court for further proceedings.
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/21-1195_h3ci.pdf
Delaware v Pennsylvania (No. 21-145)
ISSUE: Whether “Agent Checks” and Teller’s Checks (collectively, “Disputed Instruments”) are sufficiently “similar” to a money and therefore can be escheated by states under the Federal Disposition Act (FDA).
RULING: Yes. “The Disputed Instruments are sufficiently ‘similar’ to a money order to fall within the FDA” – In this case, the SCOTUS directed, as follows: “Exceptions to Special Master’s First Interim Report overruled; First Interim Report and order adopted to the extent consistent with this opinion; and cases remanded.”
LINK TO OPINION: https://www.supremecourt.gov/opinions/22pdf/145orig_kjfl.pdf
Welcome back to our series surveying the 27 constitutional amendments ratified over the course of our history as a sovereign nation, a Constitutional Republic. Each amendment revises our Constitution, alters the course of history, and, in one way or another, advances America closer on her path to exceptionalism. Today, we review the Nineteenth Amendment. Readers can find our examination of the first ten Amendments of the Constitution – the Bill of Rights – in the online version of our book, Exploring America’s Founding Documents, by clicking here. If you would like to receive a free print copy, please do so by clicking here.
In America, it is not uncommon to hear sentiments that begin or end with “when women got the right to vote.” In fact, women didn’t get the right to vote in 1920, they fought for it.
Women, for centuries and throughout the world, have fought tirelessly to be treated equally under the laws. In many states, women were not acknowledged as citizens in their own right until well into the 20th century. State laws governed whether women held equal status to men or were merely recognized as property owned by a husband or father.
In fact, until the 1980 Supreme Court decision in Kirchberg v Feenstra, 450 U.S. 455 (1981), it was not unconstitutional for states to forbid married women from being sole owners of real property like a house or vacant land. Notwithstanding, 60 years before Kirchberg (1981), the Nineteenth Amendment was passed guaranteeing American women the right to vote. The text of this Amendment states,
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.
Congress passed the Nineteenth Amendment on June 4, 1919, and it was ratified by the states on August 18, 1920.
Perhaps the most prominent women who fought for voting rights for women were Susan B. Anthony and Elizabeth Cady Stanton. Together, these two women founded The National Women’s Suffrage Association – a stalwart organization that stood firm in the fight for women to have the right to vote in America.
DOJ Lawyers Lie Without Consequence
This is the ninth entry in our expanded IN FOCUS section addressing corruption in the U.S. Department of Justice and the self-destruction of the FBI. Readers will find the compilation of the complete series of articles at Unequal Justice Under Law.
Former veteran federal prosecutor and criminal defense attorney Sidney Powell created quite a stir in 2014 when she published her book Licensed to Lie exposing how federal prosecutors routinely lie and abuse their power. Her book addressed the prosecutions of U.S. Senator Ted Stevens (R-AK), Arthur Anderson, and Merrill Lynch executives, and others. Americans need to understand that there is real truth in the title, and that the problem continues.
While federal officials, including prosecutors, lie routinely, ordinary Americans dare not lie to the federal government. In 1948, Congress made it a federal crime, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,” to make “any materially false, fictitious, or fraudulent statement or representation.” 18 U.S. Code § 1001 (emphasis added). False statements carry up to a five-year prison term. While that statute could be read to apply to federal prosecutors as well, it should be no surprise that federal prosecutors do not prosecute other federal prosecutors who lie.
In 2016, Texas and other states sued the Obama Department of Homeland Security (DHS) over its handling of “Deferred Action for Childhood Arrivals (DACA)” immigration cases. For months, Department of Justice (DOJ) lawyers defending DHS lied to the court and to the plaintiff states, assuring them that the new DACA processing guidelines would not take effect until February 2015. However, by January 2015, DHS had already processed more than 100,000 aliens under the new guidelines. After catching DOJ lawyers repeatedly lying, District Court Judge Andrew Hanen was critical, but restrained, in response:
The … Department of Justice … has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements… These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed. [Texas v. United States, 2016 U.S. Dist. LEXIS 79546, at *9-10.]
If Judge Hanen really had thought lying by DOJ attorneys was a serious matter, surely he would have taken strong action. But he didn’t. In fact, Judge Hanen did not report the DOJ lawyers for ethics violations to the bar, or to those at the DOJ who are supposed to monitor lawyer ethics. Judge Hansen only ordered the lawyers to take ethics classes. Not surprisingly, the DOJ resisted even this minimal rebuke.
In 2020, DOJ lawyers admitted in emails “Yeah, we lied“ in refusing to disclose exculpatory evidence in a money-laundering prosecution against Ali Sadr Hashemi Nejad. One DOJ attorney suggested hiding the exculpatory evidence. “I’m wondering if we should wait until tomorrow [to turn it over to the defense] and bury it in some other documents,” the lawyer suggested. Having witnessed this malfeasance, District Court Judge Allison Nathan verbally castigated the DOJ attorneys. “The trial team’s failure to promptly investigate the origins of [the key document] and to communicate about discovery with other governmental agencies reflects a systematic disregard of their disclosure obligations,” she stated. “Prosecutors then compounded these missteps through a sustained pattern of refusing to fess up.” Even though they had already obtained a conviction, federal prosecutors dropped the case rather than being required to retry it in the wake of revelations of prosecutorial misconduct.
Justice Department attorneys rarely receive the severe discipline private attorneys would expect if caught committing similar misconduct. One review of DOJ lawyers has concluded:
[M]any federal prosecutors handling cases ranging from drug trafficking to white-collar crime walk away largely unscathed from misconduct charges, even after judges determine and describe in published opinions how they committed serious offenses, such as intentionally hiding evidence and allowing witnesses to lie to juries. But in their rulings, judges almost always omit the name of the prosecutor. And even if the prosecutor’s alleged misconduct is so grave that the [Justice Department Office of Professional Responsibility] ends up investigating, the agency goes to great lengths to conceal anything that could possibly identify them.
For decades, the DOJ’s Office of Professional Responsibility (OPR) has been accused of covering up — or at least failing to address — misconduct by DOJ attorneys. As far back as 1995, a report by the U.S. General Accounting Office (GAO) found numerous failures in OPR investigations, The GAO report “found several OPR monitored cases with instructions from OPR management to simply “open, count and close.”
Two decades later the problem had not improved. A December 2014 GAO report concluded: “DOJ has not implemented its plan to … ensure that discipline for professional misconduct is applied consistently and in a timely manner for all department attorneys. Aside from the Executive Office for United States Attorneys, “no other DOJ component has similar procedures or mechanisms in place to ensure that discipline for professional misconduct is implemented.”
Doubtless the most infamous case of the DOJ lying to courts is the saga of falsified affidavits submitted by DOJ attorneys to the FISA (Foreign Intelligence Surveillance Act) Court to obtain permission to spy on President Donald Trump’s 2016 campaign staffer Carter Page, despite the DOJ’s knowledge that the affidavits lacked probable cause. The FISA statute requires that “the Attorney General certif[y] in writing under oath that … the electronic surveillance is solely directed at … the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers….” 50 U.S. Code § 1802(a).
FISA Court Judge James Boasberg found that the affidavits contained “material misstatements and omissions.” Fellow FISA Court Judge Rosemary Collyer wrote in a scathing order that “[t]he FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor” required in ex parte surveillance applications. But the falsified affidavits were also signed off on by then-acting Attorney General Dana Boente and then-Deputy Attorney General Rod Rosenstein. The corruption at DOJ goes to the highest levels.
Nothing destroys the faith of the American people in their government more quickly than the realization that government officials are not our servants, but our rulers. All too many DOJ attorneys have shown again and again that they do not uphold the rule of law, but have contempt for the law. They operate based on the rule: “Perjury for thee, but not for me.”
To read the entire series of articles, please click here.
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