One of my favorite moments in the Star Trek movie franchise occurs near the end of Star Trek III: The Search for Spock. The details of the plot aren’t important here, other than that the Klingon villain, Kruge, played by Christopher Lloyd, is holding Kirk, Spock, and an Enterprise landing party hostage on a planet that is in the process of destroying itself. Kruge threatens to doom himself and his hostages if Kirk doesn’t surrender something called, “the Genesis Device.”
Spock, who had died in the previous film, has been brought back to life by the Genesis device but is aging rapidly because of it and must get off the planet immediately or die. When Kruge has the rest of the landing party beamed up to his ship as prisoners, the following exchange occurs between Kirk and Kruge:
Kirk: Take the Vulcan, too.
Kruge: No!
Kirk: But, why?
Kruge: Because you wish it.
Kruge doesn’t know what is happening to Spock or why Kirk has an interest in getting Spock off the planet, especially considering he’d be Kruge’s prisoner. He only knows Kirk wishes it and anything Kirk desires is likely against his own interests.
What a wonderful analogy for so many of the figures who have stood up to oppose the Washington, D.C. empire over the past several years. I don’t agree on much with Donald Trump, Lauren Boebert, Marjorie Taylor Green, Matt Taibbi, Glenn Greenwald, or Bari Weiss. But it is apparent the empire fears and loathes these people and will do anything it can to destroy them.
Therefore, I am inclined to do whatever I can to defend them against the empire’s attacks. Should the empire deign to ask why I wouldn’t allow this collection of mercantilists, socialists, and statists (but I repeat myself) to be crushed, my answer is the same as Kruge’s:
“Because you wish it.”
The latest in this cast of opposition characters is self-described socialist Elon Musk. Musk claims to have purchased Twitter primarily to change its content moderation policies to allow for freer speech, something he claims is essential to “democracy.”
That all sounds wonderful to the average, miseducated American and there is good reason to believe Musk is sincere. He spent $44 billion on a company that currently makes $5 billion in gross revenues – and loses money. No likely combination of revenue growth or cost cutting will make this a wise business investment anytime soon.
Taking Musk at his word, it is worthwhile to unpack just what Musk is championing. On one hand, anything the empire is opposing this strenuously is on its face a good for the rest of us. But we should have open eyes about what Musk is offering in its place. There are several assumptions most people take for granted that need to be challenged. They include free speech, democracy, and liberty.
Musk evidently shares the empire’s stated ideal of democracy as an end in itself. In deciding whether to allow former President Trump to return to Twitter, Musk held a Twitter poll. When it came out in favor of allowing Trump’s return, Musk tweeted the results with the Latin phrase, “Vox Populi Vox Dei (“the voice of the people is the voice of God”).
Of course, the American system has never assumed democracy is an end in itself. On the contrary, it includes many anti-democratic elements alongside the democratic ones. The reason for having a bicameral legislature, presidential veto, independent judiciary, and Bill of Rights is to protect individuals and constituent polities from democracy.
That’s what makes Musk’s Trump poll so ironic. He suggests a majority vote has something to do with free speech when the First Amendment was written to defend free speech against democracy. The 2nd Amendment was written to protect the right to keep and bear arms against democracy. And so on with all ten amendments in the Bill of Rights, the last to protect individuals from the accumulation of power even in one, central government, however democratically elected its representatives.
The biggest news coming out of the midterm elections is the failure of the Republican Party to win a more decisive victory. They had predicted a “red wave” since well back into 2021 (an immediate reason to be skeptical) but will at best have a modest advantage in the House and a razor thin majority in the Senate.
Not only were the Republicans denied a resounding victory, but the Democrats did better in a first term midterm election than either party has while holding the White House in decades. There is no denying this was a good night for the Democrats.
This has many scratching their heads. This election was supposed to be, at least in large part, a referendum on the massive damage done to the American economy and society in general by Covid tyranny imposed by Democrats. “Never forget what they did to you” said many a meme on social media in the days before the election, especially after Emily Oster’s infamous plea for amnesty.
There is only one problem with that narrative. Covid lockdowns and other mandates were, with a few notable exceptions, largely bipartisan.
Where resistance won
Where it was possible for Covid lockdowns to be put on the ballot, they were. Governor Kristi Noem, who never locked down her state a single day in 2020, improved upon her three-point victory in 2018 with a thirty-point trouncing of her Democratic rival on Tuesday.
During her victory speech, she said, “Here in South Dakota, we protected your constitutional rights. I trusted in you to use personal responsibility and take care of each other.” The vote totals speak for themselves.
The less libertarian but more well-known Governor Ron DeSantis of Florida also won in a landslide in traditionally purple Florida. Desantis was elected by a razor thin margin in 2018. As governor, he famously convened a panel of non-government epidemiologists in September 2020 and dropped all Covid restrictions based on their televised recommendations.
Governors Gregg Abbot of Texas and Kim Reynolds of Iowa, both of whom dropped Covid restrictions in early 2021, were re-elected by comfortable margins. Senator Rand Paul, who grilled Fauci during multiple congressional appearances, also won easily.
By contrast, Republican Lee Zeldin, whom some polling indicated had a real chance to defeat incumbent Democrat Kathy Hochul in deep blue New York, didn’t really compete on Tuesday. He was forced to campaign mostly on traditional Republican tough-on-crime talking points because that’s all he could do. He certainly couldn’t run a strident anti-lockdown campaign after failing to question lockdowns at all during 2020.
It is one week until the U.S. mid-term elections and some members of the Regime seem worried that, for once, elections might actually have consequences. The smart money still says that if there is a “red wave” on November 8, Republicans will enter Congress next January and do precisely nothing about what has happened to the American people over the past 32 months. Criticism of the Ukraine War is as likely to be of the “Biden is not tough enough on Putin” variety as it is cutting off the Ukraine Gravy Train to Lockheed Martin and Raytheon.
Still, there are some signs insiders are worried something different may be afoot, as demonstrated by the plea for “amnesty” in The Atlantic by Covid Regime propagandist Emily Oster. According to this alternative reality take, “We need to forgive one another for what we did and said when we were in the dark about COVID.”
No, “we” need do no such thing. The lies, tyranny, and aggression all ran one way during the pandemic – towards those who, it turns out, were never “in the dark.” Whether those mandating lockdowns, masks, and later vaccines were honestly mistaken – “mistaken” seems wholly inadequate here – or acting in bad faith and with malice aforethought should be the subject of a formal investigation.
We have been subjected to six straight years of investigations into hoaxes and hobgoblins, from the nonexistent “Russa collusion” to the inconsequential Ukrainian “quid quo pro” to the farcical “insurrection.” It is past time for an investigation into the real crimes against humanity perpetrated against the American people under the pretense of fighting Covid-19.
Such an investigation would include sworn testimony as to the origins of the virus itself, whether or not data supporting lockdowns and vaccine mandates were knowingly corrupted and/or whether data contraindicating same were knowingly suppressed.
The existence of alternative treatments for Covid would have legally prohibited the issuance of any Emergency Use Authorization (EUA) for the Covid vaccines, developed in record time under the government program known as “Operation Warp Speed.” Were alternative treatments prohibited and their proponents deplatformed to ensure these EUAs could be issued? Did people die who otherwise could have been successfully treated had these alternative treatments been made available?
These questions need to be answered. Both Anthony Fauci and his co-conspirators along with deplatformed experts like Robert Malone, M.D. and Peter MCullough, M.D. must be put under oath and questioned, preferably on live television so the American public can judge for themselves who is telling the truth and who is not.
Throughout 2021, Rep. Thomas Massie publicly asked the CDC to change information on its website indicating the Pfizer mRNA vaccine was effective for those previously infected with Covid-19 because the FDA’s review of Pfizer’s clinical trial data clearly showed it wasn’t (pg. 30). To this writer’s knowledge CDC website was never corrected. The Pfizer vaccine was among those later mandated by President Biden for large swaths of the U.S. workforce.
Massie, those he spoke with at the CDC, and the person(s) responsible for refusing to correct the false claims must be put under oath and questioned. If fraud was committed, charges should follow.
These are just a few of the egregious lies, distortions, and obfuscations perpetrated against the public in support of the Covid Regime. Studies in support of the government mandates were intentionally flawed. Even the integrity of the data has been called into question. Both freedom and the future of science itself depend upon these issues being settled once and for all via an adversarial process with penalties for lying.
The government response to Covid-19 was the most egregious assault on liberty in modern history. Hundreds of thousands of businesses closed forever. The U.S. economy is approximately 5 million jobs short of the number that would have been created to employ its growing population had the lockdowns never occurred.
An as yet unknown number of people died as a direct result of lockdowns and vaccine mandates. That number must be established and those responsible for the deaths held accountable if the investigation shows they acted in bad faith.
We are constantly regaled with the vapid, “we must ensure this never happens again” after a mass shooting or other tragedy, always in support of new government power that will punish the innocent and do nothing to achieve the stated goal.
For once, that hackneyed appeal is appropriate. What must never happen again is the dystopian nightmare visited upon Americans by their federal, state, and local governments over the past two years. The only way to ensure that is to hold those responsible for it accountable. It is time for due process, not amnesty.
** FILE ** In this Sept. 18, 2001 file photo, a red crane looms over the smoldering wreckage of World Trade Center Building 7 in New York. Federal investigators said Thursday they have solved one of the undying mysteries of the Sept. 11, 2001 attacks: the collapse of World Trade Center building 7, a source of long-running conspiracy theories.(AP Photo/Roberto Borea, File) ORG XMIT: WX104
There are two camps in the 9/11 war. Both are wrong. As a result, almost no one learns anything from the tragedy that occurred on and after September 11, 2001.
One camp is the “never forget” crowd. These are the proponents of Washington, D.C.s’ imperial, worldwide standing army. They insist people never forget the terrorist attacks because…well, it’s not entirely clear why we shouldn’t forget. Something about being vigilant, because “freedom isn’t free.” Or something.
It’s just a lot of fuzzy baloney used to justify massive military spending, the empire’s war or intervention du jour, and convince the gullible who join the military they are defending freedom, as if Americans would be less free if the empire didn’t invade Iraq, or Afghanistan, or Syria, or…
The other camp is the “truther” camp, convinced that because the government lied about a lot of things regarding 9/11, that those lies prove the attack was “an inside job,” perpetrated by the Bush administration and/or the Deep State to justify the decades of aggressive war abroad and totalitarianism at home that followed it.
Both camps conjure up villains people can blame for ills they ultimately brought upon themselves, at least in the aggregate.
First, the “never forgetters.” Are there any who aren’t somehow connected to the bloated, $800 billion/year and growing cancer called the U.S. military? Or at least believe the myth perpetuated in this nauseating Lee Greenwood song:
“And I’m proud to be an American, where at least I know I’m free
And I won’t forget the men who died, who gave that right to me
And I’d gladly stand up next to you and defend her still today
‘Cause there ain’t no doubt I love this land! God bless the U.S.A.”
It’s hard to get more wrong about “America” than those lyrics. First, the American principle is that freedom is a natural right, “endowed by our Creator.” It is not given by anyone, least of all soldiers consuming taxes in an unnecessary war. Not only was the freedom of Americans not in jeopardy during any war in my lifetime (born 1965), none were even “defensive” wars.
Goebbels couldn’t have penned better propaganda nor a bigger lie than this million-selling drivel.
Americans would have been far better off if the entire Cold War national security state were dismantled in 1991, including the global standing army – as Americans were promised it would be – and no wars fought in the past thirty years.
They would have been better off still staying out of WWII and letting the Nazis and Soviets destroy each other, instead of handing one evil empire half of Europe in its zeal to destroy the other.
Instead, the Cold War apparatus was redirected towards terrorism, its military and economic interventions in the Middle East provoking the 9/11 attack.
That brings us to camp #2, the “truthers.” A lot of these people are well-intentioned and have what the never forgetter crowd lacks: a healthy skepticism of their government and of government in general. But their zeal to prove government is evil (which it is) leads them to make improbable conclusions and ignore other explanations that fit the available facts much better.
The recent SCOTUS decisions on vaccine mandates, gun regulation, abortion, and the EPA are flawed from a strict constructionist perspective. Rather than striking down 20th century theories underpinning decisions which unconstitutionally expanded the powers of the executive branch and the federal government in general, respectively, the Court instead tried to set limits to the ways in which those doctrines could be applied.
Still, insofar as these decisions represent a change in direction, rather than the last word on these issues, they may provide a roadmap out of the political acrimony that is tearing American society apart.
The legislative power
In ruling against President Biden’s vaccine mandates and the EPA’s “Clean Power Plan,” the Court makes reference to a long-ignored principle called the “nondelegation doctrine,” which posits that Congress has no authority under the Constitution to delegate its legislative power to the executive.
In other words, when the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” it means no legislative powers are vested in the executive.
Strictly applied, this principle would mean striking down the New Deal, root and branch. Although there were examples of limited rulemaking by executive branch regulatory agencies prior to the 1930s, it was FDR’s coup that created and empowered to legislate the myriad “alphabet soup agencies” within the federal government.
Rather than such a radical change, the Court merely set limits to how far beyond legislation passed by Congress and signed into law by the president regulatory agencies can go in making legally enforceable rules themselves.
The “glass half empty” way to look at this is that the Court has further established that the executive branch can legislate – just “not too much.” The opposite view, as expressed by constitutional scholar Kevin Gutzman, is that these precedents represent the first indications of the Court turning away from 84 years of bad precedent and back towards a constitutionally limited government.
(For my discussions on this subject with Gutzman, see Episodes 1, 28, and 94 of Tom Mullen Talks Freedom).
The significance of this question cannot be understated. Garet Garret called the New Deal a “revolution” for good reason – it effectively transformed the U.S. government from its previous republican form to a new, soft form of fascism, with an executive branch issuing fiat commands instead of a legislature representing a diverse constituency writing laws.
Roe vs. Wade came as a shock, even to people who believe the power to regulate abortion is reserved to the states. Lost in the triumphant celebrations of the decision on one side and the abject horror and hysteria on the other is the fact states like my own (New York) are now less restricted in liberalization of their abortion laws.
The 1973 decision didn’t just strike down state laws prohibiting abortion. It wrote new ones, something no court, state or federal, has any legitimate power to do. This is the other edge of the sword in allowing federal judges to override state law. They have taken the power away from the states forever.
The Court did two things in its Roe decision. First, it implicitly affirmed the Incorporation Doctrine, the legal theory that the Fourteenth Amendment “incorporated” most of the first ten amendments to the Constitution to apply against the states. I recently had the opportunity to discuss this with constitutional scholar and historian Kevin Gutzman on an episode of my podcast (neither of us believe the doctrine is valid).
The Incorporation Doctrine was necessary to arrive at the original Roe decision. It provides the basis for a federal court to strike down state laws. Without this doctrine, the Bill of Rights is only applicable to the federal government, leaving protection of individual rights to the bills of rights in the state constitutions.
Second, the Court narrowed interpretation of the Incorporation Doctrine to those rights specifically enumerated in the Constitution or “rooted in the Nation’s history and tradition.” The Court did not find any evidence of an American tradition of a right to abortion, but rather a tradition of precisely the opposite: the longstanding tradition of states prohibiting abortion before Roe.
Note that this is not a finding that no right to abortion should exist. It is merely a finding that protecting this right, if it does exist, is not a power delegated to the federal government.
Neither is regulating immigration, according to James Madison, the man who wrote the words of the Constitution. In his Virginia Resolution of 1798, in opposition to the Alien and Sedition Acts, he wrote,
That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government;
Like Roe vs. Wade, the federal government’s power to regulate immigration was simply “discovered” by the Supreme Court in a decision at least as spurious as Roe. There are no words in the Constitution indicating this power is delegated to the federal government.
Proponents sometimes point to the naturalization power as somehow implying a power to regulate immigration. But this is ridiculous. Naturalization concerns only the power to determine who becomes a citizen of the United States. It has nothing to do with regulating who can or cannot cross the borders of any of the states.
Others point to the 1808 clause as meaning the federal government was delegated the power after 1808. While this argument is slightly more plausible, both it and the naturalization clause were written by Madison himself, who nevertheless stated regulating immigration was a power “no where delegated.”
Jefferson added in his own Kentucky Resolution of the same year that the 1808 clause was added merely out of “abundant caution,” not a grant of this new power after 1808.
As there has been no subsequent amendment to the Constitution delegating this power to the federal government, it must remain with the states.
While the Incorporation Doctrine would not apply as this is not a dispute regarding the federal Bill of Rights, it is noteworthy that at the time of the decision, there was no tradition or history of the federal government regulating immigration. On the contrary, the case in which the Court concluded this was a federal power concerned a dispute over the way the California State immigration officers were regulating immigration.
If there has been a federal power as contentious as regulating abortion, it has been regulation of immigration. Cities run by liberal politicians have declared themselves “sanctuary cities” in defiance of federal immigration laws. States like Florida and Texas, run by conservative politicians, have taken to shipping “undocumented immigrants” sent to their states either back to their point of entry or to Washington, D.C. in protest.
This is no way to conduct civil society.
The rancor over immigration is the predictable result of the federal government exercising authority never delegated to it by the states. The Post Office may be abysmal, but it doesn’t inspire the hatred federal immigration enforcement does because it is recognized as a power the states agreed to delegate to the federal government.
If either Democrats or Republicans brought a case on immigration, it would test the Court’s conviction to its constitutional principles. Immigration checks all the boxes of the Court’s own reasoning for a power improperly usurped by the federal government through a previous SCOTUS decision. In Dobbs, the Court wrote, “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
In the cases of both abortion and immigration, that is precisely what the Court did. Overturning Chy Lung vs. Freeman would right precisely the same wrong.
It is not as if federal regulation of immigration is working now. Under both liberal and conservative presidents, the process to immigrate legally has been woefully deficient, resulting in millions of immigrants entering the country illegally or (more often) staying long past their visas expire. There is every reason to believe the states would do a better job at this and could also tailor their immigration laws to be as strict or lenient as they wish.
To those who find the consequentialist arguments of Chy Lung vs. Freeman compelling, there is an opportunity to offer an amendment to the Constitution to properly delegate this power to the federal government. This would not simply be a dead-on-arrival letter. It would give Americans across the political spectrum a chance for input on the language of such an amendment and the limits, or lack thereof, on the power.
If no amendment agreeable to the requisite number of states can be written, then the process of trying will have proven this is a power which must be reserved to the states. If an amendment can be ratified, then the federal government can go on sucking at regulating immigration, just as it does at delivering the mail, without risking a civil war.
…There has been a lot of speculation in the media about how I will direct the various regulatory agencies as far as lifting burdensome regulations or imposing new ones. I have here in my hand a copy of the U.S. Constitution – the only “deal” ever made between the people of the various states regarding a federal government with any constitutional validity – and it says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Now, for many decades, there have been various agencies in the executive branch of the government exercising this legislative power in defiance of the Constitution. We call it “regulation” instead of “legislation” so as to deceive ourselves and others that what the EPA, SEC, or FDA does is not legislating and therefore constitutional. But any government agent writing rules that either prohibit or compel behavior with the force of law is legislating.
If we truly believe government only draws it just powers from the consent of the governed, then surely, we can see that this is a problem. The only place anyone ever consented to the federal government having any power at all was in ratification of the Constitution and its various amendments. And that consent was only obtained with great effort and solemn assurances that the government would not exceed the powers delegated to it.
Nowhere in the Constitution is the president or any member of the executive branch delegated power to legislate. Neither can the Congress simply delegate this power to the executive through legislation. Any alteration in the distribution of powers in the Constitution must be made by constitutional amendment. The sole power granted the executive concerning the legislative process is the veto, which itself can be overridden by Congress with sufficient support among its members.
Therefore, any regulation written by an employee of the executive branch, or anyone else, that is not subsequently passed by the House of Representatives and the Senate, and signed into law by the president, represents rule without the consent of the governed.
A leaked draft of an opinion written by Justice Alito of the U.S. Supreme Court suggests the Court is prepared to strike down the 1973 Roe v. Wade decision that found unconstitutional state laws prohibiting abortion. The ruling would also strike down modifications made in the Planned Parenthood of Southeastern Pa. vs. Casey decision of 1992.
If the final decision is substantively the same as the draft, it will continue a process of “re-federalization” that has been gaining momentum since the 2016 election cycle. Many viewed the Donald Trump presidency as divisive, but Trump’s election was more revelatory of existing divisions than divisive itself.
Long before Trump declared his candidacy, many states had already effectively nullified federal marijuana regulations and immigration laws. Talk of Texas seceding from the union had resumed during the Obama administration; similar rumblings in California began soon after Trump was inaugurated.
What has inspired the most rancor on both sides are cultural issues: abortion, what is taught in schools, who is allowed to get married, who is and is not required to bake the wedding cake, and who is and is not allowed to cross the borders, immigration being both a cultural issue and an economic one.
There is also an underlying dissatisfaction with economic outcomes, which are most affected by the monetary system and the New Deal regulatory structure, although neither conservatives nor liberals seem anxious to address either.
None of the federal powers above, including regulating immigration, are expressly delegated to the federal government in the Constitution. They were all “discovered” by the Supreme Court using reasoning arguably as dubious as that employed in Roe v. Wade.
The whole idea of judicial review for constitutionality is a suspect one. The reason for having a written Constitution in the first place is to ensure there is no confusion about what powers the federal government has been delegated and not delegated. It should not be necessary to hold a legal proceeding, followed by a lengthy written decision by the “finest legal minds in the land” to determine whether or not a given power is delegated to the federal government in a five-page document.
If there is any doubt at all, an amendment should be offered. That is the only honest way to obtain consent of the governed for a new power. Acquiring power through the court system is a transparent attempt to do so without the consent of the governed, with knowledge aforethought that you are imposing authority that would not be granted voluntarily.
Article V of the Constitution provides the means by which consent of the governed is obtained by the federal government. It is not obtained through federal elections. They merely determine who exercises power, not what power is exercised.
Neither are amendments ratified by a simple majority of United States citizens. They are ratified by a supermajority of the states, who are the parties to the Constitution. They formed a federal government, not a national one, for the express and stated purpose of preventing a simple majority of all U.S. citizens from ruling over a unitary nation.
This is clear from notes on the constitutional convention taken by James Madison and Robert Yates. Forming a national government with the states as mere subdivisions was thoroughly discussed and rejected. The union would be a federation of states with limited powers delegated to the federal government and all others retained by the states or the people.
This is more than just academic pedantry. The United States is a boiling cauldron of political hatred about to boil over. Once the abortion decision is official, we can expect a repeat of the rioting we saw in 2020 over George Floyd. We saw even the typically orderly right give into similar behavior last January. There is no reason to believe things will simmer down anytime soon.
Article V provides a way out of this. Offering amendments to grant the federal government those powers it has illegitimately acquired in the past through the courts will result in one of three outcomes for each disputed issue: 1) the amendment will be ratified as offered, 2) the amendment will be revised through negotiation into something a supermajority of states accept and then ratified, or 3) the amendment will fail completely, making clear to all this is a power that must be reserved to the states.
Perfection is unattainable in any political process. But any of the three outcomes above would provide a pressure valve on the issue in question. Amendments should be offered for all powers obtained by the federal government through the courts in the past, no matter how long ago the acquisition occurred: regulation of abortion, immigration, healthcare, education, and marriage included.
While we’re at it, why not settle the very first constitutional crisis the way it should have been settled: an amendment granting the government the power to incorporate a bank.
Given the exponential growth of the federal government over the past one hundred years, dozens of amendments should have been offered during that period. Yet, since 1933 only six have been ratified, one of those being what would have been the Second Amendment if ratified when originally proposed in 1789.
Both conservatives and liberals are reluctant to pursue the constitutional amendment process because it is difficult by design. But there are only two ways to exercise power: with the consent of the governed and without it. Americans have chosen the latter over the past century, taking the relatively easy, dishonest route to power through the court system. That has led us to where we are now: at each other’s throats.
We would be wise to retrace our steps and determine the federal government’s powers legitimately before we have a real insurrection on our hands.
I watched with interest the debate on immigration between Dave Smith and Spike Cohen. I encourage everyone, libertarian or not, to watch it as well. Neither participant called the other a fake libertarian, a racist, a communist, or (insert pejorative here). On the contrary, Smith hurt himself by spending too much time praising Spike during his opening.
Instead of dumb name calling, the debate included thoughtful and thought-provoking arguments for both positions, which were “open borders” and “not open borders.” As to who won the debate, I’ll leave that to the judgment of the viewer. There were no knockdowns.
Like Dave, Spike, and host Marc Clair, I am an ancap. So, my ideal solution would be privatizing everything. And as for my personal feelings about all three, I can only say:
However, especially since it was largely representative of most libertarian discussions on immigration, I am compelled to point out a startling omission in the debate. That was the apparent false assumption by both Dave and Spike that the only options were between the federal government regulating immigration and open borders. Neither even mentioned the constitutional, historical argument: state regulation of immigration.
I was waiting for the conversation to get there until Spike made a statement (about the 43:43 mark), unrefuted by Dave, that since there was no Ellis Island or similar federal immigration enforcement operation for the republic’s first one hundred years, the United States had “straight up open borders” during that time.
No, they didn’t. It is true the federal government wasn’t regulating immigration because the states were regulating it. As I explained in more detail here, the federal government only got involved in immigration as a result of Supreme Court decisions dealing with state immigration enforcement, particularly Chy Lung vs. Freeman, arguably the most spurious decision the Court ever issued on the constitutionality of a federal power.
Without rehashing the linked article above, they didn’t really make an argument the power was delegated. Their decision was based solely on the reasoning that it would be disastrous if the federal government didn’t have the power to regulate immigration, so therefore it must have it. They explained why the federal government should be delegated the power, not that it had already been delegated the power.
It wasn’t the first time the federal government attempted this usurpation. Most people remember the Alien and Sedition Acts for their suppression of free speech, but that was only half the problem. The other half, emphatically argued by both Jefferson and Madison in the Kentucky and Virginia Resolutions in 1798, was that the Alien Act was unconstitutional because it exercised a power (regulating immigration) reserved to the states. Their argument for state nullification of the Alien Act amounted to the same argument made by “sanctuary cities,” only at the state level.
Conservatives often argue the power to regulate immigration is granted to the federal government because it is part and parcel of the power to regulate naturalization (becoming a citizen). This is ludicrous. The vast majority of people who cross the border have no intention of becoming citizens and the two powers are completely distinct.
Others point to the 1808 clause, which has slightly more superficial merit, but you can read my arguments against that in the linked article as well.
For the record, Jefferson addressed the 1808 clause in the Kentucky Resolution and Madison, who wrote the words of both the Naturalization and 1808 clauses, nevertheless stated regulating immigration was a power “no where delegated to the federal government.”
Since there hasn’t been an amendment to delegate this power since then, it must still reside with the states or the people.
The constitutional approach provides two alternative solutions to the immigration question that could work for both conservatives and liberals and be more tolerable to libertarians:
Acknowledge the federal government does not posses this power and propose an amendment to delegate it to the feds.
Acknowledge the federal government does not posses this power and allow the states to resume their authority as protected under the Tenth Amendment.
The amendment suggestion is more than just a formality. If an amendment were proposed, it would require a supermajority of states to ratify it. Out of the dogfight that would naturally follow, something agreeable to both sides might emerge.
If not, alternative #2 would be the default position. While that may appear unthinkable at first glance, allow me to point out that states are already availing themselves of this option right in front of our eyes.
Blue states are declaring “sanctuary cities,” meaning they won’t expend their own resources to enforce federal immigration laws. The governor of Texas says his state is building its own border wall. Florida governor Ron DeSantis wants $8 million from his legislature to “create a new program that would allow the state to contract with private companies to transport ‘unauthorized aliens’ out of Florida.”
Just like marijuana laws, states are beginning to nullify federal immigration laws and any honest proponent of strict construction of the Constitution should admit they have the right to do so.
It’s a far cry from a private property system, but it’s much closer than either federal enforcement of immigration laws or federal subsidization of immigration into the states. If we can’t have a libertarian solution, we can at least have a constitutional one.
Supporting this position checks all the boxes brought up by the participants in the debate. No libertarian candidate would have to support the disastrous federal immigration system. Instead, they could tell voters in each state they support their right to determine the rules themselves, without interference from Washington.
It would also be eminently more practical. It would not mean routine interstate travel would be disrupted by authorities attempting to physically stop people from crossing state lines. The federal government has already shown that to be futile.
State government immigration departments could focus on those people establishing residence within the state rather than attempting to prevent anyone from merely driving through. Those arriving at airports or ports from foreign countries could be processed the same way by state officials as they are now by federal officials, at each state’s discretion.
Not every state would regulate immigration the same way. Those states that wanted open borders could have them. Those that wanted border walls could build them. Those that wanted something in the middle could have that, too.
Nothing governments do can be truly called a market solution but allowing up to fifty different immigration policies would much more closely approximate one than the current one-size-fits-all approach. And it would allow a more scientific way to answer not only whether more or less immigration is good for the current state populations but how much or little regulation is optimal. There may be up to fifty answers to the latter question.
No, the constitutional approach is not perfect, just as neither solution proposed in the debate was perfect. But it beats a civil war between the very unlibertarian factions currently seeking control at the federal level. And it has the potential to evolve into something closer to a private property system than could ever emerge with Washington in charge.
Everyone is worried about “our democracy.” The left believes Donald Trump is trying to destroy it by challenging the results of the 2020 presidential election, aided by state legislatures controlled by his party passing stricter voter identification and ballot verification laws.
The right believes the Democratic Party is trying to destroy democracy by stuffing ballot boxes with illegitimate votes and flooding the country with undocumented immigrants who will either vote illegally themselves or have children who will eventually vote Democrat.
They all agree on one thing. Our democracy is in peril, and it must be saved.
Certainly, if there was enough fraud to change the results of any election, that is a problem. But what is tearing our society apart is not destruction of our democracy, because we don’t live in a democracy. And it isn’t just a republic, either. All “republic” means is that the people elect representatives to perform the various functions of government. North Korea is a republic; China is a republic. Neither are countries in which most Americans would want to live.
No, what made the American system better was not its democratic elections or republican form but it’s anti-democratic safeguards. The Constitution allows for representatives to be elected democratically – although only the House of Representatives was originally by direct vote of the people – but the rest of its provisions are there to protect us from democracy.
The bicameral legislature, presidential veto, separation of powers, and strictly enumerated powers are all intended to protect individuals from what democratically elected representatives might do.
The Bill of Rights is completely anti-democratic. Its articles say the democratically elected Congress shall make no law regarding the establishment of religion, shall not infringe the rights of free speech, or to bear arms. They say the democratically elected executive shall not conduct unreasonable searches, punish you without due process, etc.
The key to all the so-called “checks and balances” in the Constitution is they set up adversarial processes that must occur before power is exercised.
Older readers may remember the Schoolhouse Rock cartoon, “I’m Just a Bill.” It attempts to educate youngsters on all the hoops a bill must jump through to become a law. While clever, the problem with its tone is the strong implication that the bill failing to become a law is regrettable, even tragic.
That the Constitution makes it difficult to pass a law is a feature, not a bug.
The popular sentiment that Congress “isn’t getting anything done” springs from the same misconception. When a bill is proposed and subsequently either dies in committee or fails to pass a general vote, Congress did indeed “get something done.” It vetted the proposition to require or prohibit some human activity by force and (usually wisely) declined to do so. That’s as much “getting something done” as passing the bill – and usually ages better.
Yet, while still professing fidelity to the Constitution, federal legislators have passed many laws allowing the executive branch to bypass this entire process and effectively legislate by fiat. If you’re wondering how President Trump could levy a tariff (a tax) on imports without a law passed by Congress, it’s because Congress passed the Trade Act of 1974, effectively allowing the president to exercise this power exclusively delegated to Congress if, in his sole judgment, “any existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States.”
The National Emergencies Act similarly transfers legislative power to the president by his merely declaring an emergency to exist. Worse yet, the “state of emergency” doesn’t end until the president declares it is over or Congress passes a joint resolution to end it – which can be vetoed by the president!
As I’ve written before, the entire New Deal constitutes an unconstitutional transfer of power from the legislature to the executive by allowing regulatory agencies to not only write their own regulations (legislate) but often usurp the judicial power by deciding disputes in their own administrative courts.
That’s why President Biden can mandate vaccines for businesses with over one hundred employees without new legislation from Congress. He can simply have OSHA require it through “regulation” – a euphemism for the executive branch legislating.
Needless to say, Congress cannot assign powers exclusively delegated to itself to another branch of the government, no matter how many legal or logical acrobatics Supreme Court justices have performed saying they can. There would be no need for Article V of the Constitution if Congress could merely override the separation of powers or other constitutional constraints with legislation. And the Constitution certainly provides for emergencies. There is no emergency more serious than war, for which the Constitution clearly provides.
Yet, no one blinks an eye when a president decides to bomb Syria (name one that hasn’t lately) without a declaration of war and in violation of the War Powers Resolution which specifically limits the president’s power to “introduce the United States Armed Forces into hostilities” to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” [emphasis added]
The list of violations of the Constitution’s limitations on power and separation of those powers it does grant is too long to cover here. But they all have one thing in common: they eliminate adversarial processes capable of overriding the will of majority – of overriding democracy – to preserve liberty.
Everyone recognizes the political climate in the United States is toxic and many legitimately fear it will become violent. This isn’t because democracy is diminished. Rather, it is because the people of these states have tolerated the erosion or elimination of most restraints on democracy built into our Constitution.
My own view of the Constitution is much closer to Lysander Spooner’s than Madison’s or Jefferson’s. But as I said four years ago, the limits it places on federal power, especially in terms of the separation of powers between the federal and state governments, could prove useful in easing the pressure before the boiler explodes. While peaceful, full-scale secession from both the federal and state governments might be the philosophical ideal, it is much less likely than a “soft secession,” accomplished by simply enforcing the Constitution’s limits on federal government power.
That soft secession has already begun, although most of those seceding probably don’t realize they are doing so. Over half the states have nullified federal marijuana laws by passing state legislation legalizing their use for medical purposes, recreation, or both. Many blue state cities have declared themselves “sanctuary cities,” refusing to enforce federal immigration laws.
Most recently, Texas passed a law prohibiting abortion once a fetal heart rate is detectable, or more accurately clarifying laws prohibiting abortion never taken off the books after Roe v. Wade.
None of the federal laws or regulations in question are constitutional. They were all merely passed by Congress or enacted by executive edict and then, in some cases, “discovered” to be constitutional by the Supreme Court. Madison himself said regulating immigration was a power “no where delegated” to the federal government. And whether one considers abortion healthcare or homicide, the federal government isn’t given power over either.
Most people in red states have a visceral hatred for sanctuary cities, just as most in blue states hate the Texas abortion bill. And that’s just the point. These are matters that can only be dealt with locally. No supermajority of states ever has or ever will consent to the federal government imposing one policy in these areas over all the states.
The response to Covid-19 has followed the trend. In 2020, there was an increasingly diverse policy response as the pandemic progressed, with some states imposing severe lockdowns and mask mandates while others imposed less severe restrictions or none at all. South Dakota led the way in refusing from the start to close businesses or issue stay-at-home orders, followed by Florida in September 2020 and Iowa and Texas in early 2021.
As for President Biden’s vaccine mandate (announced but not yet written), Florida and Texas have already banned the mandates within their states, while South Dakota governor Kristi Noem took the most libertarian approach in neither mandating nor banning vaccine mandates for private businesses. Meanwhile, New York’s governor Kathy Hochul has ordered all healthcare workers in her state to get the vaccine and is prepared to call in National Guard personnel to replace those who don’t comply.
Many fear violent conflict resulting from state nullification of federal laws or regulations. But we haven’t seen that over nullification of marijuana prohibition and we wouldn’t likely see it when state governments take similar action on other issues.
Rather than a recipe for violence, more widespread soft secession from the present, unconstitutional system would allow the two dominant political tribes to stand down from their current, confrontational posture. And it would allow the rest of us to at least “pick our poison” in terms of which less-than-ideal system we would prefer.
Most important, it would save us all from what we have now: democracy run amok.
