2016/11/15

Can seditious libel be made a crime under the U.S. Constitution?

Professor James G. Wilson asks whether it is constitutional to make seditious libel a crime. As a consistent originalist I can answer that. The answer is no.

Sedition and seditious libel are common law crimes, and it was correctly ruled in U.S. v. Hudson that there are no common law crimes under the U.S. Constitution, even in federal enclaves or incorporated U.S. soil outside a state. Common law crimes are intrinsically ex post facto, since the crime is not defined until the judgment is announced, and that is after the fact.

There is no power delegated to Congress to make it a crime. The only delegated criminal powers are: counterfeiting, offenses against the laws of nations, and felony on the high seas. Piracy is an offense against the law of nations. Treason is defined in the Constitution, but there is no authority delegated to actually punish it.

Arguably subsequent amendments expanded the list of offenses that could be punished as crimes: enslavement, violation of rights by a state actor (but not a federal actor), or deprivation of the privilege of voting on several grounds.

So what about all the federal criminal statutes outside the above list? All unconstitutional. Perjury? No. Fraud? No. Contumacy? No. Interfering with the enforcement of laws? No. Conspiracy? No. High crimes and misdemeanors? Only removal from office.

So, a consistent application of originalism makes some determinations easy, if distasteful.

2016/11/13

Trump's first 100 day agenda

President-elect Trump has proposed a list of initiatives he intends to make during his first 100 days in office. The list can be found here. My commentary under each.

* FIRST, propose a Constitutional Amendment to impose term limits on all members of Congress;

Limits on the number of terms in Congress is a bad idea. It takes most members at least 12 years to learn enough to be marginally effective. A limit on number of consecutive terms might make some sense. But a limit on consecutive years for professional staff is more important. They hold the real power, and have the knowledge and connections to get anything done. Most members are only experts on getting elected. They don't acquire policy expertise by serving, not even enough to identify who the experts are.

* SECOND, a hiring freeze on all federal employees to reduce federal workforce through attrition (exempting military, public safety, and public health);

Attrition rates are not very high. Better would be focused cuts.

* THIRD, a requirement that for every new federal regulation, two existing regulations must be eliminated;

The proper measure of regulations is not their number, but their length in words.

* FOURTH, a 5 year-ban on White House and Congressional officials becoming lobbyists after they leave government service;

Restricting lobbying would violate the First Amendment. Better would be to ban members from fundraising while Congress is in session.

* FIFTH, a lifetime ban on White House officials lobbying on behalf of a foreign government;

Again, violates First Amendment.

* SIXTH, a complete ban on foreign lobbyists raising money for American elections.

Again, violates First Amendment.

On the same day, I will begin taking the following 7 actions to protect American workers:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

This misunderstands the problems with NAFTA, which reduced the tariffs of Mexico on our goods, which made it cheaper to ship parts to Mexico to build things.


* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

It's not really in effect yet.


* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator


Useless. We all know they are. Labeling them won't change anything.


* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately


Aspirational. Need to be more  specific


* FIFTH, I will lift the restrictions on the production of $50 trillion dollars' worth of job-producing American energy reserves, including shale, oil, natural gas and clean coal.

There aren't that many restrictions now


* SIXTH, lift the Obama-Clinton roadblocks and allow vital energy infrastructure projects, like the Keystone Pipeline, to move forward

This one would be useful, but not mainly for U.S. benefit, but for Canada.

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America's water and environmental infrastructure

This one would be useful, but most of that money not spent yet.

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

Need to cancel all executive orders, which are properly only directives from an executive to those under his supervision, which are supposed to expire when he leaves office.

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

Presumably already under weigh.

* THIRD, cancel all federal funding to Sanctuary Cities

"All" is a tad broad, as some represent long-term commitments.


* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won't take them back

What would do the most good would be to make it a crime, not just a "deportable offense", to enter the country illegally. It is not now. Cancelling visas won't work.

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

Some groups can be considered safe without much more vetting, such as victims of terror, those who helped us in war.


Next, I will work with Congress to introduce the following broader legislative measures and fight for their passage within the first 100 days of my Administration:

Middle Class Tax Relief And Simplification Act. An economic plan designed to grow the economy 4% per year and create at least 25 million new jobs through massive tax reduction and simplification, in combination with trade reform, regulatory relief, and lifting the restrictions on American energy. The largest tax reductions are for the middle class. A middle-class family with 2 children will get a 35% tax cut. The current number of brackets will be reduced from 7 to 3, and tax forms will likewise be greatly simplified. The business rate will be lowered from 35 to 15 percent, and the trillions of dollars of American corporate money overseas can now be brought back at a 10 percent rate.

Is this going to be paid for with more borrowing?


End The Offshoring Act. Establishes tariffs to discourage companies from laying off their workers in order to relocate in other countries and ship their products back to the U.S. tax-free.

Won't work. Bilateral tariffs don't work in a multinational trading system.Tax and trade policy is not going to bring good jobs back. The good news is that work is coming back. The bad news is that when it does it will be done by machines.

American Energy & Infrastructure Act. Leverages public-private partnerships, and private investments through tax incentives, to spur $1 trillion in infrastructure investment over 10 years. It is revenue neutral.

Picking winners and losers.

School Choice And Education Opportunity Act. Redirects education dollars to give parents the right to send their kid to the public, private, charter, magnet, religious or home school of their choice. Ends common core, brings education supervision to local communities. It expands vocational and technical education, and make 2 and 4-year college more affordable.

How is this paid for?.


Repeal and Replace Obamacare Act. Fully repeals Obamacare and replaces it with Health Savings Accounts, the ability to purchase health insurance across state lines, and lets states manage Medicaid funds. Reforms will also include cutting the red tape at the FDA: there are over 4,000 drugs awaiting approval, and we especially want to speed the approval of life-saving medications.

Okay if done right.


Affordable Childcare and Eldercare Act. Allows Americans to deduct childcare and elder care from their taxes, incentivizes employers to provide on-side childcare services, and creates tax-free Dependent Care Savings Accounts for both young and elderly dependents, with matching contributions for low-income families.

Doesn't work to create savings accounts for people not getting enough money to save.

End Illegal Immigration Act Fully-funds the construction of a wall on our southern border with the full understanding that the country Mexico will be reimbursing the United States for the full cost of such wall; establishes a 2-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a 5-year mandatory minimum for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.

Need to make it a crime to enter illegally

Restoring Community Safety Act. Reduces surging crime, drugs and violence by creating a Task Force On Violent Crime and increasing funding for programs that train and assist local police; increases resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.

Already trying to do that. Not so easy.


Restoring National Security Act. Rebuilds our military by eliminating the defense sequester and expanding military investment; provides Veterans with the ability to receive public VA treatment or attend the private doctor of their choice; protects our vital infrastructure from cyber-attack; establishes new screening procedures for immigration to ensure those who are admitted to our country support our people and our values

Okay if done right.

Clean up Corruption in Washington Act. Enacts new ethics reforms to Drain the Swamp and reduce the corrupting influence of special interests on our politics.

Aspirational. Need to be more  specific.


A start, but more attention needed for constitutional compliance.

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