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Transgenders in the military – who decides: Congress, the president, or federal judges?


 By Publius Huldah

6 November 2017

In a case now pending before the US District Court for the District of Columbia,1 the trial judge recently granted a preliminary injunction which purports to temporarily stop the Trump Administration from banning so-called “transgender” persons from serving in the Military.

But we will look at the real issue: Does the Judicial Branch of the federal government have constitutional authority to require the Legislative and Executive Branches of the federal government to permit transgender persons to serve in the Military?
Instead of going along with what everybody says – or expounding on one’s personal views on the topic – let us consult and obey the U.S. Constitution:

  • Article I, Section 8, clauses 11–13 delegate to Congress the powers to declare War, grant Letters of Marque and Reprisal, make rules concerning Captures on Land and Water; raise and support Armies; and provide and maintain a Navy.
  • Article I, Section 8, clause 14 delegates to Congress the power “To make Rules for the Government and Regulation of the land and naval Forces;”
  • Article II, Section 2, clause 1 says, “The President shall be Commander in Chief of the Army and Navy of the United States….”

In Federalist Paper No. 69 (6th para), Alexander Hamilton says:
“…The President is to be commander-in-chief of the army and navy of the United States…. [H]is authority…would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy….”
So! All the powers over the military which have been delegated by the Constitution are vested in the Legislative and Executive Branches of the federal government.

The Judicial Branch has no role to play in the organizing and operation of the military forces.(emphasis mine-cat)

Pursuant to Article I, Section 8, clauses 11-14, Congress alone has the delegated authority to decide who may serve in the military. If Congress issues rules banning transgender persons from serving, then it is the President’s job, as Commander in Chief, to enforce those rules.
Accordingly, instead of participating in the litigation before the federal district court, the Trump Administration should instruct the federal judge on the long-forgotten concept of “Separation of Powers” and advise the court, “You have no jurisdiction over the military – we will not participate.”

1. Military courts and military lawyers in a nutshell

The Judicial Branch of the federal government was created by Article III, U.S. Constitution. That Article created the Supreme Court, and authorized Congress to ordain and establish, from time to time, such inferior courts as needed. Pursuant to that authority, Congress has established 94 federal district courts (where most federal trials are conducted), and 13 U.S. Circuit Courts of Appeals.

The U.S. military has its own court system which is not part of the Judicial Branch of the federal government. The military courts are “Article I Courts” created by Congress in the Uniform Code of Military Justice (UCMJ).2 They consist of trial courts where courts-martial are conducted; each Branch of Service has its own “Court of Criminal Appeals”; and the “U.S. Court of Appeals for the Armed Forces” hears appeals from the Services’ Courts of Criminal Appeals.

And when military commanders need legal advice, they get it from their own Service lawyers (this is one of the duties of lawyers in the Judge Advocate Generals’ Corps).
The Judicial Branch of the federal government has no constitutional authority over the U.S. military.

2. Federalist Paper No. 80 and the meaning of “arising under”

Some may assert that the Judicial Branch has authority to determine who may serve in the military because Article III, Section 2, clause 1 says,
“The judicial Power shall extend to all Cases…arising under this Constitution and the Laws of the United States….”

But they would be wrong. In Federalist No. 80, Alexander Hamilton explains the jurisdiction of the courts created by Article III: In the 2nd, 3rd, 4th, and 13th paragraphs, he shows that the purpose of the language quoted just above is to authorize the Judicial Branch to enforce the Constitution – not re-write it; and to enforce constitutional federal laws – not re-write them.(emphasis mine-cat)

Furthermore, in Federalist No. 81 (8th para), Hamilton addresses judicial encroachments on legislative authority, and reminds us that such encroachments need never be a problem because of the courts’ “total incapacity to support its usurpations by force”; and because Congress may protect the country from usurping federal judges by impeaching, trying, convicting, and removing them from office.

3. Political questions

Accordingly, when a power is vested by the Constitution in the Legislative or Executive Branches [the “political branches”], the federal courts [the “legal branch”] have traditionally refused to interfere.

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795, which authorized the President to call forth the militia when he judged it necessary to repel an invasion.3 The Court pointed out that the power had been confided [entrusted] by Congress to the President, and”We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

In Foster v. Neilson, 27 U.S. 253 (1829), which involved a dispute between the United States and Spain over territory, the Court held that once those departments [Executive and Legislative Branches] “which are entrusted with the foreign intercourse of the nation” have asserted rights of dominion over territory, “it is not in its own courts that this construction is to be denied.” “A question…respecting the boundaries of nations, is…more a political than a legal question; and…the courts of every country must respect the pronounced will of the legislature.”

Likewise, the power to determine who may serve in the military has been delegated to the Legislative Branch of the federal government – i.e., Congress. The Judicial Branch may not substitute its judgment for the will of the Legislative Branch; and if it attempts to do so, Congress should employ the remedies suggested by Hamilton in Federalist No. 81.

4. The President’s “check” on the federal courts

Finally, let’s look at Federalist No. 78 (6th para) where Hamilton – unlike the pundits of today – tells us the truth about the powers of federal courts:
“…The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments

An informed President who is a manly man will ignore ultra vires orders of the Judicial Branch.

5. Conclusion

Let us put the federal courts in their proper place! Congress and the President have the recognized power to refuse to go along with unconstitutional or ultra vires acts of the Judicial Branch; and their oaths of office require them to do so. Congress also has the power to rid us of usurping federal judges via the impeachment process.

Endnotes:

1 The U.S. District Court for the District of Columbia was established by Congress pursuant to Art. III, §1, U.S. Constitution.
2 Congress’ authority to create the Military Courts is derived from Art. I, §8, cl. 14, U.S. Constitution.
3 Article I, §8, clause 15, delegates to Congress the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
4 I trust you see why Hamilton is viciously smeared. The relentless attacks on our Framers have a purpose: Take them down – and our Foundation is destroyed. Hamilton wrote most of the Federalist Papers, which Madison and Jefferson recognized as the best evidence of the genuine meaning of our Constitution. What effect do these constant attacks on Hamilton have on peoples’ respect for the Federalist Papers? Beware of false friends who undermine our foundation; and of jealous men whose claim to fame is that they attack Hamilton.

© Publius Huldah

My full apologies to the author since I do not have the knowledge to transfer the article to WordPress EXACTLY with her formatting. Please read her original (and other most worthy contributions)  http://www.renewamerica.com/columns/huldah/171106

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Just A Thought (or three)

In a time of stiff world-wide competition among a very few countries and global corporate conglomerates for total and absolute domination of technology, artificial intelligence, bio-engineering and its associated chip development, etc., etc., etc. when everything we read seems to be purloined from the pages of a classic Sci-fi thriller, this would seem to be the time to pay more attention to the atrocious problem of so much of our technological work product being siphoned away from our shores. Sometimes it is required in order to obtain a new market (should not be allowed), sometimes acquired in merger or acquisition (rare) and then sometimes it is stolen (bingo!) China has even stated through it’s media that it plans to rule the world (insert evil laughter here) through technology and STEM development and domination. 

Obviously, in the course of “growing up as a republic” we have allowed some institutions to become established with an insufficient amount of oversight. As a result these institutions have recently made it increasingly obvious that “We, the People” should shine the light of exposure on these highly secretive organizations so that they may either be cleaned up or abolished entirely. Proper controls and procedures could be put in place under President Trump, General Kelly, Senator Lee from Utah, Senator Cruz from Texas, or perhaps a few other select individuals HONEST, TRUSTWORTHY, UNPURCHASED and wholly committed to the Constitution in order to ensure Government security, defense of the homeland and intelligence is not compromised or released. However it is done, our president needs to set up some sort of review board or committee for:

  1.  Intelligence agencies
  2. DOJ
  3. IRS
  4. State Dept.

Our three branches of government no longer even blink when crossing the boundaries set by the Constitution. Federal appellate courts are blocking lawful Presidential Executive Orders on ideological grounds. The judicial branch has no knowledge, no familiarity and no authority over immigration yet, for example, a Maryland federal judge suspended President Trump’s executive order requiring more extensive vetting of refugees entering this country. We MUST return to the principles and the fundamentals set out for us in our founding document. We must get rid of the arbitrary administrative rules, regulations and requirements which have been attached to the people’s institutions in order to circumvent the purpose of those bodies or shift the responsibilities which each member bears as part of his duty to his/her constituents. Even more common it is used as a method to hide what he/she is voting for or against.

I will no longer be tactful and polite about it. The Democratic Party appears to have launched a campaign to chip away at our Republic, pushing this radical idea that being born on U.S. Land makes you a citizen, advocating for the rights (?) of ILLEGAL IMMIGRANTS!, advocating for and passing laws to protect lobbying, advocating for the consideration and even the application of foreign law in our courts (including sharia law) and I am not even covering education or the entertainment industry. Why does the Democratic Party want to change America in such a radical way? 

If we want to keep our American culture and our Constitutional Republic we had better wake up and closely monitor our representatives and senators. If the people we elect to vote in our name do not vote with our voice, if they vote for big business, if they vote with the media, if they vote with non-citizens – then we can not afford to vote them back into office again.

An elected office is a service job. Those who are called to SERVE are obligated to fulfill the promises they make, to work for the goals and needs of the poorest as well as those who own small businesses and the largest corporations equally. Any elected office is hard work involving more problems than possible solutions, it requires being excruciatingly frugal with the taxpayer’s money while concurrently being generous of heart but armed with research on how to get the most bang out of every single buck. An honest Senator or Representative does not get rich in Washington or the state capital, does not vote for automatic pay increases, outrageous perks or unbelievable pensions. For an ideal in service we need to think back to the beginning when George Washington was asked to become King by a very sincere and thankful nation. Most generals, heck most men who had fought tooth and nail, sacrificed and been through so much would have accepted the offer to continue to lead and protect the fledgling nation through its formative first years with the power to ensure all was done correctly and all the states stayed in line.               
GEORGE. WASHINGTON. SAID. NO. 

Come, Let Us Reason Together..


Everyone has gotten so caught up in the minutiae of political correctness, the blood sport of team politics and an unbelievable and unshakable conviction that we are a permanently established society that can not be seriously threatened beyond our ability to neutralize or eliminate – do people no longer think for themselves? Even when shocking and terribly obvious horrible actions are brought to the public’s attention, citizens immediately run to their party talking points. 

In my opinion, the most serious, the most dangerous, the most foolish and apparently also the most criminal action to date which “We, the people” are being subtly told is not that much of an issue is the Uranium 1 Deal. Putting all extraneous considerations aside, this is NOT a partisan issue and will have an equal impact on every American regardless of economic situation, racial classification, job description, age or religious affiliation. This is a classic example of dressing up a wolf in sheep’s clothing and watching most of the public following the media who are rushing down the path to herd the sheep!

The last administration set up, co-ordinated and facilitated selling possession, command and control of 20% (1/5) of America’s uranium (an extremely valuable radioactive metal used to produce nuclear weapons) to one of our greatest enemies – Russia! Think about it again. Our leaders profited by selling the ore for nuclear bombs to Russia and gave them control of 1/5 of the total uranium production. Russia also was able to ship some of it out after processing which required some level of government arrangement…Russia had slipped it through our protections and border controls.

Rome would never have sold swords to the Visigoths or the Gauls! Barbarians would not have been allowed to control 1/5 of the sword production or chariot manufacturing in the Roman Empire. Common sense dictates that internal politics have to take a backseat to external threats! I have not heard that Washington offered to sell the English ammunition before or during the Revolutionary War, after all both countries were popularly using the “Bessie Musket”, even in the military. We did not trade weapons or ammo which could be used on citizens or soldiers. We were walking around with common sense and our leaders were Patriots and leaders. They would never have even considered such a thing! What happened?

Before uranium is processed into the final explosive, destructive and most evil weapon on this planet it is processed and handled in a form called “yellow cake”. If we still had some of that common sense our parents walked around with everyone would have expected that an exit path for the purchased uranium would be arranged also, and it was. “Yellow cake” has been cleverly slipped through our protections and borders into the physical clutches of Russia and Vlad Putin. We do not know where it went.

One of our enemies who actively works against us both inside and out of our borders, who has repeatedly tried to interfere with our Republic and its functioning, who does not respect the sovereignty of any other nation, who does not even treat his own citizens in a moral way now has control of a good portion of the American resource required to build a nuclear bomb. He has stolen away some of it already. 

If we do not investigate this, unravel it, set Justice on the right course and then clean out every person and process that allowed this travesty to occur, our serious incidents will become exponentially worse and more frequent. Only by shining light on the dealings of the former administration will we be able to sift out the deep state working against the Executive and the Legislative branches.

Are we going to keep trying to persecute a properly elected president, following a melodramatic media that keeps promising impeachable evidence around the next bend (9 months and still waiting while they are still frantically looking)? Perhaps we should focus on policies, problems and coming together on common ground before our divisions break this nation apart

See:  http://www.renewamerica.com/columns/dahlgren/171028

Regarding Tantrums..

A PROTEST WITHOUT A PURPOSE ISNT A PROTEST, IT’S A TANTRUM                                                                                                                            The Birmingham News – October 13, 2017
By State Rep. Rich Wingo (R – Tuscaloosa), who serves House District 62                                                                                                                      in the Alabama Legislature. Wingo was a member of the University of                                                                                                                                         Alabama football team from 1974 to 1978, and played for the                                                                                                                                                                                        Green Bay Packers from 1979 to 1986.
As a former linebacker for the NFL’s Green Bay Packers and the University of Alabama, I had the opportunity to play for two of the finest men to ever serve as head coaches – Paul “Bear” Bryant and Bart Starr.
One of the most important lessons Coach Bryant and Coach Starr taught me was plain and simple respect — respect for ourselves, respect for our coaches and teammates, and respect for our great nation. They also stressed showing your class in every situation and being humble.

The current “protests” being staged against our nation’s flag and anthem by players throughout the NFL violate every principle of respect those two great men drilled into players like me during their careers. The NFL is currently suffering from a complete lack of good leadership and it hurts me to watch it happen. The two coaches under whom I played simply would not have allowed the current situation to come to pass, and, instead, would demand that their players show proper respect for the patriotic symbols of our nation and its people. Like many Americans, I do not view the act of NFL players “taking a knee” during the National Anthem as an acceptable form of protest.
Most of the players who have chosen to sit or kneel have not outlined a specific reason, stated a goal, or defined what constitutes a victory in their eyes. If they have no goals to achieve by kneeling, how can they know when to start standing again?

A protest without a purpose is not a protest – it’s a tantrum.

The sadness of the situation was only compounded when players for the Baltimore Ravens and Jacksonville Jaguars took a knee when the “Star Spangled Banner” was played before their recent game on foreign soil in London, but they stood at attention during “God Save The Queen.”

I do believe that every American has the right to protest or to have their voice heard, but they must be prepared to accept the consequences. Americans are likely to abandon the NFL by the millions if players continue to betray and insult our nation and its enduring symbols of freedom.
There are other, more effective and less offensive methods players may utilize to express their dissatisfaction with whatever is angering them. They could easily stage a rally, hold a press conference to protest, or, more importantly, invest or volunteer in their communities and do something constructive to change lives for the better.

We do not have to look too far into our nation’s past to see where the disrespect for American values and symbols took root. Activist judges and weak leadership in past generations forced the Pledge of Allegiance and prayer to be taken out of our children’s classrooms, and Hollywood has joined forces with the mainstream media to promote a radical social agenda that has turbocharged moral decay. Millions of brave men and women have fought, bled, and died on foreign battlefields across the globe in order to defend our nation and the symbols that define it.

In my opinion, the NFL players’ actions are one step away from burning an American flag on the 50-yard line, and the commissioner, team owners, and coaches need to do what Coach Bryant and Coach Starr would have done by demanding an end to the on-going sideline shenanigans immediately.
note: I would like to add that I remember “Bear” Bryant having a very low tolerance for disrespect, bad behavior or breaking team rules. His players were mostly proud to be held to tough standards and high expectations. It may have been old school, but many have continued on to have successfull and fulfilling careers. -cat-

Just Another Gun Duel

“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.”- Samuel Adams, Massachusetts Ratifying Convention, 1788

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It has been said millions of times…guns don’t kill people, people kill people. Evidently, to many who live for simplistic solutions this nice catch phrase sounds great but it has no meaning whatsoever. Their belief is that if you remove guns from honest people you will stop massacres, crime, and all random acts of violence. They are absolutely wrong.

As has been proven in other societies, criminals do not give up merely for lack of a gun. Tasers, physical violence (with bats, foreign objects like knives or daggers) or cunning can often be employed instead. Where only one person is required to waive a gun around, two or three criminals working together offer enough of a threatening presence to achieve the goal. Also, consider that today most crimes are not the type that utilize a gun, they just steal from people by con. Identity theft is on the rise yet congress does nothing to protect citizens against the most basic collection of information by large corporations choosing instead to focus on guns. Email scams, Internet rip-offs are all out there just waiting for stronger regulation….but that would be hard.

The most obvious of all, of course, is that any laws that are passed of whatever stringency will have absolutely no affect on criminals, only on honest citizens who buy guns legitimately. Criminals do not buy guns in stores or in gun shows, they get them on the black market. No laws or regulations and no taxes to bother with on the black market. There are black market guns everywhere. Criminals don’t care if we put harsher regulations on gun ownership, as a matter of fact, it would make their lives infinitely safer and easier if innocent people cannot defend themselves! After all, even the mass killings tend to hit “soft targets” which means those places where guns are not allowed! Doesn’t that tell anyone anything??

🇺🇸

“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”– Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787
🇺🇸

Chicago is a great example of what happens with the criminal element when you impose some of the strictest gun control in the US. The gang members and other criminals do not turn in their guns, honest citizens are left with no way to defend themselves and a city that was once wonderful now has a section that has one of the highest crime and murder rates in the nation! None of this is news, we all know it, so why are we not paying attention?
If government could protect us 100% of the time we would be 100% safe and no mass murders or crimes would ever occur.The government tells us that the police are there for our protection, but they are not everywhere all the time. As much as I respect and honor our warriors in blue, we were designed to be a country with guns and a brave people who could protect and defend themselves and their neighbors.

People, especially those in the government, tend to skip over the main reason that the founding fathers made sure that the citizens of this country would forever keep their God given right to bear arms. There was no guarantee that the new Constitution would stand the test of time. Many were very afraid that too much power had been given to the centralized federal government. They had experience with an oppressive British King and were wary of any form of it. We have our guns because a well armed populace is a bulwark against tyranny. It is true that our forefathers were closer to the land and hunted more. But make no mistake, if you read what they had to say on this issue, they were not ambivalent.

The liberals have chosen guns as an issue. However, if a disturbed, insane, evil person or a radical jihadi terrorist is determined to cause havoc and kill massive numbers of people – he does not have to use a gun! A gun is just a tool. I have friends who can shoot a bow as accurately as a gun, knives, bombs, cars, vans, eighteen wheelers, acid, poisons, etc. Jumping on the gun issue seems to be screaming at one of the symptoms when we ought to be looking at the genesis of the problem.

🇺🇸

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”– William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

Every One an Unsung Hero!

I have been off today and so have had the rare opportunity to keep one eye on the TV coverage of the horrendously evil shooting in Las Vegas. While listening to the reporters interview witnesses and concert attendee’s I noticed that there was a common element in many of the accounts of survival. Fortunately for many of those at the event there were a goodly number of veterans, off duty police and military also in attendance and they instinctively knew what to do!They helped shepherd people to safety, they yelled out what to do, they assisted the wounded and they did it over and over again all around the venue. So many people were very lucky our brave military, vets, off duty police, etc. were there in the thick of the crisis helping when most did not even realize where the help was coming from!

I wonder if we appreciate how valuable, how honorable and how much more these men and women contribute to society and their communities than is readily seen. How often are their heroic deeds overlooked in the rush to show appreciation for the first responders, who deserve all the accolades we give them. Vets especially tend to always instinctively step up in these situations yet never seem to be recognized for the risks they take in doing so or receive credit for the lives they save.

However, it does take something special to think of others while under fire. Training helps, using that training to save strangers by risking your own life is an example of the best of us. 

The Eyes Have It!

My eyes have been opened!

Up to now I had always assumed that much of the protesting against “white supremacy” as well as the rise of the BLM movement was because of perceived racial discrimination. Last night, while watching a segment on Tucker Carlson, I learned from one of his guests that my assumption was definitely passé. What is driving those accusations of racism and causing so much hate is an African American belief that Caucasians see themselves as better, smarter, classier, whatever. Most of the active discrimination has been legislated into illegal behavior, it should not be allowed and legislation has followed public opinion fairly well. Where the Legislature has not acted the courts have stepped in. So, now I am told that it is about Caucasian attitudes of natural superiority?

Who knew.. Or even thought such a thing?

I have red hair. However, I think that brunettes and blondes are the same as me and different in no significant manner. I don’t discriminate against either (makes about as much sense) or see myself as better than they are. As far as I know, hair pigment has no impact on intelligence, strength, common sense, creativity, etc.

My favorite color is royal blue, if I have to name just one, but I am not illogical enough to think that a royal blue 2018 truck is inherently better than any other 2018 truck merely because it is royal blue! This may sound silly, but it is exactly what is being assumed!

Would everyone just think?!?

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