“When conservatives reject constitutional limits on executive power and foment civil conflict, what exactly are they conserving?
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“There was a time when the American right was conservative: appreciative of inherited wisdom, skeptical of rationalism, wary of excessive government power, and against radical change.
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The New Right is not interested in defending these distinctively American ideals. Drawing instead on collectivist, nationalist, and even monarchist traditions from continental Europe, this New Right seeks to wield the tools of government to advance its own social, cultural, and religious priorities. For years, the New Right, by its own admission, has rejected the tenets of classical liberalism, including individual liberty, mutual toleration, and limited government.
“Over the last eight months, the Trump administration has run roughshod over Congress and its constitutional prerogatives. Trump’s decision to ignore the TikTok ban on his first day in office may seem minor in the grand scheme of things, but it foreshadowed a series of far more aggressive moves to usurp much of lawmakers’ constitutional authority: dismantling congressionally-created agencies, redirecting congressionally appropriated funds and implementing a massive tax hike on the American public in the form of Trump’s chaotic tariff regime.
The vast majority of this was made possible by congressional Republicans, who have largely turned a blind eye to all of Trump’s gambits, and by the Republican appointees on the Supreme Court, who have handed Trump a series of victories this year in his wide-ranging efforts to both unilaterally slash the federal government while dramatically expanding the powers of the presidency.
The acquiescence to Trump’s TikTok reprieve this year has been a far more bipartisan affair, but it has been a constitutional farce all the same, and it is not over yet.”
Why have a Congress if the president can just ignore its laws? Why have a Constitution if the president can just ignore it? The power to spend is clearly given to Congress. The President is supposed to execute that spending. This is the president refusing to faithfully execute those laws, clearly violating the division of powers spelled out in the Constitution.
“The Supreme Court on Friday extended an order that allows President Donald Trump’s administration to keep frozen nearly $5 billion in foreign aid, handing him another victory in a dispute over presidential power.
With the three liberal justices in dissent, the court’s conservative majority granted the Republican administration’s emergency appeal in a case involving billions of dollars in congressionally approved aid. Trump said last month that he would not spend the money, invoking disputed authority that was last used by a president roughly 50 years ago.
The Justice Department sought the high court’s intervention after U.S. District Judge Amir Ali ruled that Trump’s action was likely illegal and that Congress would have to approve the decision to withhold the funding.”
“Her key example of this alleged judicial malfeasance is the case of Lochner v. New York (1905), in which the Supreme Court struck down a state economic regulation on the grounds that it violated the right to economic liberty that was secured by the Fourteenth Amendment. “Courts owe deference to legislative majorities in determining how to handle economic and social problems,” Barrett writes in opposition to Lochner. The Supreme Court “must not infringe on the democratic process by entrenching issues that the Constitution leaves open.”
Barrett thus favorably invokes, and cites, the Lochner dissent written by Justice Oliver Wendell Holmes Jr., who thought the Supreme Court had no business second-guessing the decisions of state regulators and should instead adopt a thoroughgoing posture of judicial deference.
For an originalist, the central question raised by Lochner is whether or not the Fourteenth Amendment, as originally understood, protects an unenumerated right to economic liberty.
According to the Holmes-Barrett view, the Fourteenth Amendment does not.
But the historical evidence says otherwise. According to the principal author of section one of the Fourteenth Amendment, Rep. John Bingham (R–Ohio), “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”
Furthermore, as I’ve previously noted, “even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation—indeed, that was a big reason why they opposed the amendment in the first place.” When both the friends and foes of a constitutional provision agree in real time about what it meant, their agreement counts as important historical evidence for the provision’s original public meaning. In this case, such evidence supports the position of the Lochner majority and undermines the position of the Lochner dissent.
Alas, Barrett’s book doesn’t mention any of this relevant historical material. Instead, she basically just echoes Holmes’s ahistorical dissent and leaves it at that.
That’s too bad. As Barrett herself put it, “interpreting the Constitution today require[s] us to understand its historical meaning.” Yet Barrett neglects to do that very thing in one of the main cases she invokes to support her position.”
“Whether he is waging the drug war, imposing tariffs, deporting alleged gang members, or fighting crime, the president thinks he can do “anything I want to do.””
“The constitution doesn’t guarantee Kimmel a talk show, but it does guarantee that the government won’t quash his speech because of what he chooses to say.
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The basic facts of Kimmel’s suspension are straightforward. The late-night host has been accused of mischaracterizing the motives of the alleged assassin of conservative activist Charlie Kirk, suggesting he may have hailed from the political right. On Wednesday, the chair of the Federal Communications Commission, Brendan Carr, appeared on Benny Johnson’s podcast and described Kimmel’s remarks as part of a “concerted effort to lie to the American people.” The FCC, he said, has “remedies that we can look at.” He added: “We can do this the easy way or the hard way …. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”
After Carr’s threat, Nexstar, an owner of many ABC affiliate stations, said that it wouldn’t run Kimmel’s program “for the foreseeable future” because of his Kirk comments. (Notably, Nexstar is planning to acquire a rival company, Tegna, in a $6.2 billion deal that will require FCC approval.)
Mere hours later, ABC had removed Kimmel from the air.
When the Supreme Court dismissed the Covid-social media suit against the Biden administration, it held that the plaintiffs lacked a legal right to sue — called standing — because they could not link anything the federal government did to the suppression of their speech. As Justice Amy Coney Barrett put it, the flaw in the case was a “lack of specific causation findings with respect to any discrete instance of content moderation.”
Here, by contrast, the evidence of “specific causation” is plain to see: Carr threatens ABC unless it sanctions Kimmel. ABC does as Carr asks. The FCC, to be sure, does not have authority to police the alleged truth of statements made on television. But that doesn’t mean that the agency can’t use its investigative powers to raise costs for targeted media outlets and it can clearly exert its influence on any potential acquisitions. And for all his recent talk about supporting free speech, this isn’t Carr’s first pressure campaign against a perceived antagonist of President Donald Trump. In July, he issued threats against Comcast, demanding more favorable coverage of Republicans from its NBC affiliates.
The Trump administration also has a clear model when it comes to leaning on media firms to silence speech it dislikes: The president’s executive orders punishing law firms for their association with disfavored clients and advocacy of out-of-season causes likewise deployed regulatory tools to try to achieve plainly impermissible censorship. Like Carr’s action this week, those executive orders in part worked through the economic pressure firms experienced, even as their First Amendment rights were being violated.
Although the Supreme Court did not ultimately decide the merits in the social media case, no justice doubted the clear-as-day First Amendment principle that, as Alito explained, “government officials may not coerce private entities to suppress speech.” Indeed, less than a month beforehand, the unanimous court held in a different case that the First Amendment “prohibits government officials from relying on the ‘threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech.”
In a separate opinion, Justice Neil Gorsuch explained what a plaintiff needed to show to get into court: Could the government’s conduct, when “viewed in context,” be “reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech?”
This principle is both simple and sound: The government can’t do indirectly, through shadowy threats and mafia-like intimidation, what it is barred from doing directly. Indeed, this is a principle that even Trump apparently believes in: In July 2021, he filed civil actions against Facebook, Twitter and YouTube alleging that unconstitutional government jaw-boning of those firms led to the take-down and shadow banning of his and others’ speech.
Kimmel may have contractual remedies against ABC. But he also has a powerful constitutional claim for prospective relief and damages against the federal government much like the one that Trump sought to vindicate in 2021. A principled consistency would require those who objected to the Biden administration’s engagement with social media firms to support Kimmel. (To be clear, I am not holding my breath.)”
One reason that the Supreme Court gets so much power is that it’s the branch that gives reasoned explanations for why it makes the heavy decisions it does. With the shadow docket, which currently holds a majority of Supreme Court decisions, the court gives no explanations for its sometimes momentous decisions.