How Judge Watson Blindfolded the President

Hawaiian Federal District Court Judge Derrik Watson has entered a temporary order restraining President Trump from enforcing his revised executive order dealing with immigration from six Muslim countries.

Judge Watson concedes that the "exercise of discretion" embodied in Mr. Trump's order was "admittedly neutral on its face." Normally, that would end the matter. Not so. To get where he wanted to go, Judge Watson had to find that the "primary purpose" of President Trump's order was animated by the president's hatred of Muslims, and not by the president's desire to keep the country safe from terrorists coming from Syria and five other war-torn countries.

To support his conclusion of "religious animus," the judge set out seven brief excerpts from hundreds of speeches President Trump has made on the stump and since becoming president.

From them, Judge Watson finds that "significant ... evidence of religious animus," was the true basis "driving the promulgation of the Executive Order." He concludes, "The stated purpose of the executive order was, at very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims."

Thereupon, he finds that the plaintiffs are "likely to prevail on the merits" of the case. Translation: President Trump doesn't give a damn about protecting our nation from Islamic terror; he was primarily animated by anti-Muslim religious animus.

The "primary purpose test" originates in First Amendment jurisprudence, which bars Congress from "establishing a religion." To protect First Amendment rights from "pretextual" abridgments, the courts examine the historical context and sequence of events preceding enactment of such laws -- seemingly neutral on their face -- to insure the laws truly were enacted for a "neutral secular purpose," rather than as a guise to advance or hinder a particular religion.

Judge Watson then addressed the question of "balancing the equities." He concludes, "National security is unquestionably important to the public at large. Plaintiffs and the public, on the other hand, have a vested interest in free flow of travel, in avoiding separation of families and freedom from discrimination." (Note that Watson's plaintiffs are not the would-be immigrants themselves; they have no Constitutional rights. They are a relative of a would-be Syrian refugee, the state of Hawaii and its university).

But if the plaintiffs are to be allowed to attack the "primary purpose" of the order by rummaging through the president's earlier speeches to find brief excerpts tending to show "intent to discriminate," why wasn't the president afforded the right to adduce his evidence of "historical context" and "sequence of events" to show that the threat of terrorists from those six countries was genuine, and that he was truly acting to prevent terrorists from entering and killing here? How can any judge determine that plaintiffs "are likely to prevail on the merits," and "the equities favor the plaintiff" from only one side's affidavits? The ruling makes reference to no counter-affidavits.

Nowhere in the ruling is there a single reference to recent Islamist bombings, suicide attacks or beheadings anywhere in the world. If it's fair to rummage through Mr. Trump's speeches to find animus, why did the judge not rummage through ISIS threats to "strike America at its heart" to support the reasonableness of the president's finding?

According to Associated Press reports, within a span of seven days, there were three barbaric ISIS affiliated attacks:

-- On April 9, in Egypt, Islamic State suicide bombers killed at least 45 people in Christian churches in two cities during Palm Sunday services.

-- On April 7, a Muslim terrorist from Uzbekistan hijacked a beer truck and "crashed into an upscale department store in central Stockholm on Friday, killing at least two people."


-- On April 3, a Muslim, from Kyrgyzstan, perpetrated mayhem in Russia. The suicide bomber's attack tore through a subway train, killed 11 people and wounded 40 more.

Attacks by Muslims against Muslims in Muslim countries get scant coverage in the American press. For example, the BBC report of an April 4 attack in Takrit, Iraq: "A doctor at the city's hospital told the BBC that 34 people had been killed and 46 others wounded, many of them civilians."

Have doubts? Google, "ISIS bomb attacks." Or, "List of terrorist incidents linked to ISIL -- Wikipedia." There were over 100 Islamist attacks during the last month alone.

In assessing the threat to America, must the president close his eyes to incessant Muslim terrorism worldwide?

Judge Watson's answer appears to be, "yes."


Posted: QCOline.com April 26, 2017

Copyright 2017, John Donald O'Shea

US Needs Jurists who Judge, not Legislate

Neil Gorsuch has now been confirmed as an associate justice of the U.S. Supreme Court over Sen. Chuck Schumer's bizarre objection that Judge Gorsuch was not a "mainstream" nominee.

The New York Democrat's complaint is that some of the judge's prior decisions "suggest a pattern of favoring corporate interests." Sen. Schumer, like Presidents Obama, wants judges who would "put themselves in the shoes of minorities, and the powerless of society."

As Stephen B. Press recently wrote in the Chicago Tribune, "Prior to the ... nomination of Robert Bork to the Supreme Court, there was a broad consensus that the job of judges was simply to follow the rules laid down and, if those rules were unjust, legal or constitutional change was thought better to come from the legislature or through constitutional amendments.

"Our proudest boast, as Americans, has always been that, ours is a government of laws and not men ... No one is above the law, not even judges."

The Founding Fathers intended that the Constitution they had just created vested all legislative power in Congress. If all legislative power is vested in Congress, then no legislative power is vested in judges.

The Founders vested judges with only judicial power. They never dreamed judges would dare to rewrite laws passed by the legislature, much less the Constitution -- to empower the poor, minorities, or anyone else.

What Sen. Schumer and President Obama are really asking for, are judges who say we don't care that our oath requires us to support "this Constitution" as Madison, Franklin and Hamilton meant it to be understood when they wrote it; we want judges who will construe it in a "more enlightened way" -- as we ourselves would construe it.

To argue that a judge who construes the Constitution consistently with the intent of Madison, Franklin and Hamilton is not in the mainstream, is bizarre.

Indeed worse, dishonest.

All federal and state judges take an oath to the Constitution as written by the Founders. There is, of course, an amendment process provided, but it does not include amendment by judges -- even Supreme Court Judges -- on a case by case basis. On the contrary, judges swear to construe this Constitution to insure that it is applied consistently with the spirit as intended by the Founders. That would not include hundreds of federal judges each construing it as they personally would have intended it to have been written.

Our Constitution is nothing more than a four-page document of approximately 7,500 words. Americans are ethnically, religiously and economically diverse. It is only in adherence to these words as understood by the Founders that Americans are and can be united. These 7,500 words are our common heritage.

When one group of judges construes those words consistently with the intent of the Founders, while hundreds of others construe them in ways they deem "more enlightened" to champion the cause of this or that minority, religious or economic group, we forswear our common heritage. When those 7,500 words take on sundry divergent constructions, we face the prospect of America breaking apart along partisan lines.


The right of a king to rule by decree, guarantees arbitrary rule and despotism. The right of judges to implement by decree their more enlightened notions is no less odious, and antithetical to democracy.

Our Constitution and Bill of Rights were meant to put our rights and liberties above the will of temporary legislative and judicial majorities.

Your rights and my rights, if construed as the founders intended, guarantee us, as against government, the same rights our fathers and grandfathers knew. If judges are free to redefine the extent of our rights, to the limits they deem more enlightened, we no longer have rule by law but rather rule by unelected despots in black robes.

Don't be misled. It is partisans like Sen. Schumer -- who want judges to favor elements of the political base -- who are not in the mainstream.

America needs judges who will faithfully construe our Constitution and laws as intended by the men who made them, and not rewrite them to benefit anybody's political base.


Posted: QCOline.com April 13, 2017
Copyright 2017, John Donald O'Shea

Service Credits: Welfare Reform or Pipe Dream?

Jim Nolan wrote glowingly here last Monday about an American Service Credits proposal.

At the outset, he touts the ASC because "The well-to-do who pay most of our income taxes hate to see their money go to people who don’t do anything for it."

That's the baited hook. He is fishing for suckers. From that lead-in, you would think that he is writing about a new money-saving welfare replacement program. Wrong!


Buried, at the end of his piece, are three paragraphs which candidly state that rather than cutting welfare cost, the ASC increases them.

"Roughly 20 percent of the 150 million in our workforce are un- or underemployed and making less than $25,000 a year. This would make 30 million eligible for at least some service credits.

"If the 30 million drew down an average of $15,000 in credits per year, that would be $450 billion in cost, plus administration.

"Federals spending on welfare, excepting Medicaid, is (presently) about $400 billion. This would include Supplemental Security Income, the Earned Income Tax Credit, food stamps, housing and about 80 more programs."

So, if we are presently spending $400 billion on "welfare," how will implementing the ASC which will cost $450 billion -- exclusive of administrative costs -- save "those who pay most of our income taxes" a nickel? $450 billion is greater than $400 billion.

Under the ASC the unemployed and the underemployed won't be given money. Instead, "This would be a locally administered, federally funded program of credits -- redeemable in money, in return for approved services rendered to others, to one’s community and even to one’s self."

This is nothing more -- nothing less -- than an old-fashioned carnival shell game. The government doesn't pay out cash. Instead it gives a credit redeemable for cash? What difference does it make?

And what "approved services" would allow the unemployed or under-employed to earn such "credits?" Here's his list:

1. Service on a volunteer fire department. (If you are a volunteer firefighter, how would you feel when a new one comes aboard and is paid the equivalent of minimum wage for "volunteering?)

2. Park and highway cleanup;

3. Nursing home visits to the lonely;

4. Growing urban gardens to feed the poor;

5. Playing in a municipal band;

6. Assisting with recreation programs;

7. Smoking cessation;


8. Getting off drugs;

9. Ceasing to be fat. (Who supervises 2-9?]

Mr. Nowlan's ASC is going to be federally funded" but "locally administered at the county level." He opines that a model for the new "administrative units" might be the "local draft boards." That would imply program administration by unpaid volunteers. Or would the county revert to habit, and pay its new administrative board members and provide them with health insurance and pension benefits. What's your best guess?

Mr. Nowlan compares his ASC to the Depression-era Civilian Conservation Corps. But did CCC workers get paid for visiting the poor in nursing homes? Smoking or drug use cessation? Losing 10 pounds? Self-supervising?

The CCC operated work camps. The typical CCC enrollee was a U.S. citizen, unmarried, unemployed male, 18-25 years of age. Reserve officers from the U.S. Army were in charge of the camps. Normally the enrollee's family was on local relief.

Each enrollee volunteered and, upon passing a physical exam and/or a period of conditioning, was required to serve a minimum six-month period, with the option to serve as many as four periods (or up to two years), but only if employment outside the Corps was not possible. Enrollees worked 40 hours a week over five days, sometimes including Saturdays, if poor weather dictated. In return they received food, clothing, and medical care and $30 a month; from that, a $22–25 compulsory allotment was sent to the enrollee's family. (From Wikipedia).

Will our ASC "workers" work in camps under military-like supervision? Or will it be largely a self-reporting honor system to an administrator ensconced in an office?

The intent may be pure. But without a camp under military-like supervision, this is no CCC. It's closer to a pipe-dream.

Posted: QCOline.com April 8, 2017
Copyright 2017, John Donald O'Shea

Will Gold Really Protect against Hyperinflation?

Incessant ads on radio and television tell us a "monetary crisis impends" and that "NOW is the time to buy gold!"

I don't purport to be an expert on gold. But even if a monetary crisis impends, is buying gold really the solution? I am enough of a skeptic to wonder if we're being flimflammed.

The rationale for buying gold is that U.S. government spending has caused our deficit to "balloon to $19.9 trillion with no end in sight," and while today's U.S. inflation rate is manageable, tomorrow the nation could slip into "unmanageable hyperinflation."



The "goldbugs" tell us that the line between manageable and unmanageable hyperinflation is "confidence." The people of the U.S., since the Great Depression, have accepted paper money, confident that the government will maintain the stability of the purchasing power of the dollar over the long haul, or at least, for the foreseeable future. Once that confidence is lost, the goldbugs argue, the people will act to rid themselves of that paper (currency), and acquire tangible items, instead (such as land, gold, etc.).

Gold promoters cite the example of the German Weimer Republic during the 1920s (in the aftermath of World War I). During that period, according to gold advocates Mikhan and Clark, German inflation morphed into ruinous hyperinflation:

"In January 1919, one ounce of gold traded for 170 marks; by November 1923, that same ounce was worth 87 trillion marks.

"Over this five-year period, the gold price increased 1.8 times more than the inflation rate."

Based on that data, the authors argue, "Hyperinflation wiped out most people's savings, turning wealthy citizens into poor ones literally overnight. Those who had ... gold experienced no loss in purchasing power."

But is it really that simple?

Let's assume Weimer Republic-like hyperinflation hits the U.S. a year from now, and that you had providentially bought 100 American Gold Eagles on March 1 from GovMint.com at $1,295 each (total cost, $129,500).

In June 1922, 320 German marks were equal in value to one U.S. dollar. The price of gold in June 1922 was about $20.67 (U.S. dollars) per ounce. An ounce of gold that June would have cost roughly 6,600 marks. Then hyperinflation set in. By December 1922, it took 7,400 marks to buy one U.S. dollar.

By November 1923, it took 4,210,500,000,000 marks to buy that one U.S. dollar. Therefore, by Nov. 1923, an ounce of gold was worth 87 trillion marks. Of course, no one would take marks by that time. By that time the savings of the middle class had been wiped out, and Germany had sunk into a barter economy.


As hyperinflation had set in, Germans began dumping their marks and buying anything from food to sweaters to shoes. You could eat food. You could keep warm in a sweater. You could trade extra sweaters for food or socks.

But what could you do with gold? You could sell the gold you bought for 6,600 marks in June 1922 for 87 trillion marks. But what good were 87 trillion marks? Were they suitable for toilet paper? You could sell them for one U.S. dollar -- if you could find someone stupid enough to trade dollars for "toilet paper." But if you were in Germany, what would you do with that U.S. dollar?

Of course, you might trade your gold or U.S. dollars for a 50-pound sack of potatoes on the black market. But if I have potatoes, while people are starving around me, do I trade for gold? Dollars?

In truth, I have no idea whether gold is a good investment as a guard against hyperinflation. I'd love to hear from a couple of experts with differing views.

By the way, the IRS says gold is "a capital asset" and any gain from the sale or exchange of such an asset generally is a capital gain. Gold is taxed as a "collectable" at a maximum 28 percent rate. (Exception: dealer "gain" is ordinary income).


Posted: QCOline.com April 4, 2017
Copyright 2017, John Donald O'Shea