Posted on by kenferriesblog

Small mercies — all we can hope for …

Happy one-eighth!

As of June 30, 2025, one-eighth of the term of our bombastic narcissist-in-chief is over!!! Yes, this means a mere seven-eighths of this not-so-magical carpet ride is still to come but thank heaven for small mercies.

Small mercies are all we can hope for from a Supreme Court that continues to be complicit in the disassembling of what used to be called the “United” States of America.

In a recent installment, the Supremes took up the issue of birthright citizenship –and then ducked it, by focusing instead on whether a single federal district court, or a combination of lower district courts, could put a nationwide stay on an executive order that most legal scholars – and the district courts where the question has been considered on its merits – have agreed is blatantly unconstitutional on its face.

Without wandering off into the legal weeds, which is where six of nine Supreme Court justices seem to be most comfortable operating, we now have a situation where each state can have a different definition of the meaning of the Fourteenth Amendment to the U.S. Constitution – a subject upon which prior Supreme Courts have ruled in the past – and each state’s definition can be acted upon unless, or until, the issue “percolates” back up the federal judicial system for a nationwide ruling at some indeterminate point in the future, should four justices ever agree to again take up the case they could have ruled upon, but didn’t.

In the meanwhile (and this is where “disassembly” comes into play), thanks to the cover provided by the executive order upheld by the Supreme Court, the issue of birthright citizenship will be treated on a state-by-state basis, rather than governed by a national standard that is the same from sea to shining sea, and all the flyover states in between. Should that happen, a baby born in one state might be considered a citizen by birth, but a baby born in another state might not be considered a citizen at all.

If a baby born in a state that recognizes birthright citizenship is then moved to a state that does not, will that baby still be a citizen of the United States? Can the baby be a citizen of the United States in one state but not in the other?

As near as can be made out, our president’s position is that Fourteenth Amendment Birthright Citizenship, a post-Civil War action ratified in 1868, was intended to apply only to the children of former slaves – and no one else. This includes the offspring of undocumented parents or “birth tourists,” people who come the United States temporarily just to give birth and provide their offspring with U.S. citizenship (something that was once highly prized, but increasingly maybe not so much).

Again, the president’s position, no matter how much support it might currently attract in an increasingly nativist America, has been consistently rejected in prior Supreme Court decisions dating back to 1898. It is not his call to change it by executive fiat, but that of the Congress acting through the constitutional amendment process. His executive meddling introduces an element of uncertainty into what has been a settled point of law for generations. That doubt creates an environment that invites chaos, which is a state this administration seems to believe is most conducive to its plans for the remaining seven-eighths of this term and (shudder) perhaps beyond.

This is not just about babies. The logic of the court’s decision can be applied to the effect of any of this administration’s questionable edicts. The president issues an executive order, however anti-democratic on its face, but no single federal lower court, or combination of lower courts across the nation, can issue a stay of that order. The order, no matter how anti-democratic or unconstitutional, will stand until the matter works its way up through the district and appellate courts and is taken up (maybe) by a Supreme Court predisposed to cater to the executive’s wishes.

This process will take a huge financial investment and years, if ever, until we have a decision on the merits of the issue.

Meanwhile, the executive branch, ruling through executive orders, successfully sidesteps the other two formerly co-equal branches of government. Added to the broad immunity granted to the president by the Supreme Court in 2024, we are well on our way to this administration’s apparent goal, the autocracy so feared by the founders of the Republic and so cherished by our current president.

But again, small mercies.

Happy one-eighth!!!

Posted on by kenferriesblog

Judicial review? Yes? No? Maybe?

Recently, Chief Justice John Roberts offered his thoughts on the role of the Supreme Court: “In our Constitution, the judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president.”

Justice Roberts is talking about a concept called “judicial review.” The idea is that the Supreme Court, and the federal judiciary generally, have the power to review the acts of the other co-equal branches, executive and legislative, and rule upon the constitutionality of their acts. Should the court find unconstitutionality, the presumption is that the other branch is blocked from continuing to act “unconstitutionally.”

Interestingly, and perhaps significantly, there is nothing in the Constitution about “judicial review”.

It isn’t there.

There is no legislative action that codifies the concept of “judicial review” into law.

It isn’t there.

“Judicial review” traces its pedigree back to a single legal case decided by the Supreme Court in 1803, Marbury v. Madison.

Without getting sidetracked into the weeds, the Marbury decision held that the federal courts could not enforce provisions adopted by Congress that violated the Constitution. In denying itself the power to enforce an unconstitutional provision, the Supreme Court claimed the power to render decisions concerning the constitutionality of the actions of a co-equal branch. A review of the matter at issue – by the court – was necessary to determine the question of constitutionality in the first place, i.e. Judicial Review.

It had always been presumed that the federal courts could review state actions. If an action by a state was determined to be contrary to the provisions of the federal Constitution, the court could nullify the state action as being “unconstitutional.”

The Marbury case was different. What the court was reviewing was not a state action, but the action of a co-equal branch of the federal government.

Again, there was not then, nor is there now, any statutory or constitutional basis for such a power.

Nevertheless, over time, the outcome in Marbury v. Madison became accepted case law. Judge Roberts’ statement accurately states the current understanding of what is “judicial review.” For more than 220 years, this landmark decision crafted by the legendary Chief Justice John Marshall has defined the balance between the judicial branch and the other two co-equal branches,

But is that the end of the matter?

When asked recently if he was responsible for upholding the Constitution, our current president pleaded ignorance (never mind that oath he swore on Jan. 20, 2025) and passed off the question of “whose” responsibility it was to his “brilliant lawyers.”

Brilliant lawyers are still capable of coming up with less than brilliant answers, especially if the prime qualification for their job is unwavering loyalty to a single individual.

If, as Roberts claims, the federal courts have the “authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president,” in the absence of specific constitutional or statutory authorization, from whence does this “authority” come?

Is “judicial review” simply a power created by the federal judiciary by itself, for itself? If this is the case, are the other two branches bound by the pronouncements of this co-equal branch?

In other words, if the courts find something to be unconstitutional, is that finding merely advisory, or is it binding, on the other branches? Can the other branches come up with their own findings and act upon them?

Recently, presidential advisor Stephen Miller commented that the “Constitution was the supreme law of the land.” Note that he did not say that the Constitution,   “as interpreted by the Supreme Court” was the supreme law of the land.

Can a president, relying on the advice of his “brilliant lawyers” and convinced in his own mind that he has the power to do so, come up with his own interpretation of the Constitution and act upon it in defiance of the court’s interpretation?

Andrew Jackson, our president’s favorite president, came very close to doing precisely that in the forced removal of the Cherokee nation from Georgia to what later became Oklahoma.

Should our president defy the judiciary, what power does the judiciary have to block him? Alexander Hamilton called the judiciary the “least dangerous” branch of government because it had neither the “power of the sword” (the law enforcement powers controlled by the executive) nor the “power of the purse” (access to funds controlled by Congress) to enforce it decisions.

The power of the court rests on nothing more substantial than the willingness of the other branches to follow a more than 220-year-old tradition of deference to the court’s interpretation of the law and public support for its decisions, in other words, public pressure. If public opinion of the Roberts court is nearing the basement at about a 40 percent approval rating, it might not be wise to bet the farm on the public’s rallying to the court’s defense in the case of a showdown between the executive and judicial branches. The third branch, the legislative branch, has been broken for years as too many of its members care more about keeping their jobs than doing their jobs. It would likely be a non-factor in any presidential powerplay.

If acceptance of the ruling in Marbury v. Madison were to be aggressively challenged, the outcome could be far from certain.  A result putting Marbury v. Madison into question could lead to major chaos by kicking away one of the foundational supports of the entire judicial system to satisfy the druthers of a president who has demonstrated his predilection to operate in a chaotic atmosphere.

Hopefully, none of this will ever happen.

But what if it does?

Posted on by kenferriesblog

Small yipping dogs and the future of the world

Have you ever noticed that it is usually the smallest, scrawniest rat dog that yips the loudest and quickly becomes an annoyance?

Which brings us to our recently minted vice president, J.D. Vance, and his incendiary role in February 28’s debacle of a photo-op gone disastrously off the rails.

When in a photo-op with your boss present, the traditional role of a vice president is to sit quietly and listen to the immortal words of the top dog. The vice president should speak only if spoken to. It is expected they will always look worshipfully at the guy in charge. Fawning, while optional, is highly recommended. More lap dog than attack dog.

But not our recently minted vice president.

Sitting on a couch with an uncomfortable looking Marco Rubio (who, allegedly, is in charge of our relations with foreign heads of state and all things diplomatic), our bearded former freshman senator from Ohio interrupted the flow of a tense, but nonetheless diplomatically acceptable, dialog between his boss and the president of a foreign state supposedly allied to the United States, and began to yip vociferously

After making it abundantly clear that he disrespected our ally, the newly minted vice president angrily charged that our ally had disrespected us. He yipped about how our ally hadn’t thanked us enough for what in reality is the boost his country has given to the American armaments industry. (After all, his country used the monetary grants from the United States to buy weapons and ammunition from American manufacturers.)

Then the beleaguered and blind-sided foreign head of state made a boo-boo.

He pointed out that while the country invading his country was just next door, we in the United States have an ocean moat, a moat that has protected us in the past but may not offer such security in the future.

This roused our real-estate-agent-in-chief and deal-maker-non-pariel from a state of glowering, but largely silent, intensity and set him off on a trip down memory lane. In a barrage of indignation, he revisited the various injuries done to him in the past, with special emphasis on those wounds suffered jointly with his good friend Comrade Putin.

We’ve heard it all before ad nauseam ad infinitum ad mortem.

His role completed in this likely ambush; our recently minted vice president mercifully ceased his yipping.

Silent as the tomb, Marco Rubio lived down to his nickname, “Little Marco.”

Our chief deal maker tossed our ally out of the White House with orders that he not be readmitted until he was ready to do a deal no matter how costly, unfair or disastrous that deal may be to the country he leads.

As I write this, I am painfully aware that a good chunk of my fellow citizens (probably not a majority, but a good chunk, nevertheless) think all this is wonderful stuff.

Our big boss was strong and put this supplicant in his place. He told it like it is, and if it isn’t pretty – tough. It’s the way of the world. Get on the bus or get run over by it.

That goes for our so-called allies as well. Who needs or wants the allies who have stood with us for generations? We have new friends: Russia, China, Cuba, North Korea, Iran, or any other strong-man regime elsewhere on the planet.

And all this is apparently good enough for the cabal of invertebrates posing as Republican senators and representatives who appear willing to sell their souls, their constituents – and their country – down the tubes so long as they avoid primary opposition that might threaten their jobs.

Shakespeare couldn’t have plotted a better tragedy.

If we squander trust, if we squander honor, if we squander truth – those attributes that America has enjoyed in some measure as leader of the Free World order that has existed since World War II, we will find they are extremely hard to regain. If ever.

February 28, 2025, will go down as a dark day in American diplomacy. It is the day we told our friends to go their own way without us and cozied up to those who wish for this nation nothing but ill.

As for our recently minted vice president? Hopefully at the next photo-op his role will be limited to going to get the diet cola. No yipping allowed.   

Posted on by kenferriesblog

As the mind wanders …

Funny the associations the mind can make when it wanders.

As this is written, I am listening to the sound of feet stomping around on my roof. No, this is not the patter of tiny reindeer, but rather, the clomping and hammering of a crew of roofers. Our 135-year-old slate had given up the ghost, and if we want to have insurance, well, the slate had to go over the rainbow bridge, or whatever might be the slate equivalent.

I’m not here to write about slate, but, unbidden, the first association crossed my mind.

Most of this very hard-working crew are of the “brown” people ethnicity we heard so much about in the recent election, many of whom are marked for deportation according to our president-elect. While I don’t generally believe much of what you-know-who says, over the years I have come to accept he often makes good on his threats.

Then I wondered what the effect would be of such a reverse Exodus. Instead of Charlton Heston and the Israelites heading to the Promised Land, millions among us are slated (no pun intended) to be escorted from what has been their promised land and booted unceremoniously back to their place of birth. That’s assuming their place of birth is willing to take them in, a small but not insignificant detail which has not been part of the discussion. If we have the right to control our borders, which we undoubtedly have, so too have those nation states we cavalierly assume will run the risk of having their own economies, fragile as they may be, upended by the influx of this reverse flow.

Then came the second association.

In a recent issue of this award-winning newspaper, there was the headline “Ripple Effect” with the sub-head “Business Interests: Deportations could upend Indiana’s economy.” You might want to burrow into your Google machine, or better yet, buy a subscription to this award-winning newspaper while it’s still here, because the numbers are significant.

Granted, the source of the numbers is the American Immigration Council, which sounds like a cabal of left-wing liberal extremists, not to mention elitists. But for the sake of argument, they estimate there are 104,500 undocumented immigrants in our beloved state, 7,100 of whom are also entrepreneurs providing goods and services to the rest of us. These folks have household incomes totaling $3.1billion with total spending power of $2.4 billion, much of which is going to be spent in local economies around the state. The same group is estimated to contribute $247.3 million in state and local taxes, and a whopping $400.3 million in federal taxes.

For the mathematically inclined, according to numbers felt good enough to be printed on the front page of our local award-winning newspaper, the taxes alone amount to a grand total of $647.6 million dollars – not bad for a bunch of so-called “rapists and murderers” by any measure, and a number the absence of which would be felt, and probably would have to be replaced from somewhere, most likely from the wallets of those of us who remain after the great departure.

Remember, the folks whose panties are currently in a bunch over the possibility of losing these workers are the same business interests who a few weeks ago were trumpeting the need for, well, you-know-who.

Which brought me to my third association.

There is, of course, another side to almost everything. In a recent “Sound Off” column appearing in our award-winning journal, the author rhapsodized about the trouncing you-know-who gave Kamala Harris. You-know-who won with about 50 percent of the total vote and less than a 2 percent margin over his opponent (about 2.5 million votes out of a total of about 155 million cast). Not exactly a trouncing (except in an archaic Electoral College), but nevertheless a clear victory that must be admitted.

It should also be remembered that the number of votes cast for Harris, coupled with the fewer votes cast in 2024 than in 2020, means that a majority of eligible voters did not vote for you-know-who. Talk of a mandate should probably be taken with several grains of salt. A clear win certainly, a mandate? That remains to be seen.

Which brought me to my fourth association.

Since the infamous (to some) 2020 election, America has been force-fed a constant stream of inflammatory rhetoric about what was going to happen in 2024 as the result of a corrupt and quasi-criminal election system. Strangely enough, not a peep has been heard about this crisis since the election. Apparently winning cures all. It also makes you wonder if all the dire predictions were all froth and no beer in the first place. Just saying.

Which brought me to my fifth association.

The author of the Sound Off column piously recites that entering the promised land illegally is a crime, therefore, as the Red Queen said, “off with their heads!” Ironically, this call to action appears next to an editorial cartoon from the Chattanooga Times Free Press depicting a gentleman looking a lot like you-know-who is holding a book titled “Law” (right side up this time) and laughing uproariously. Pot calling the kettle black perhaps?

Rather than incurring the cost of mass deportations, and the hit they will inflict on our local, state, and national economies, might it make more sense to first seal the southern border, which is a policy decision the president-elect has every right to make, subject to congressional and judicial clean bills of health that would be expected from a Congress and Supreme Court controlled by you-know-who. If it takes a wall, build the wall, but don’t expect anyone else to pay for it other than the good old American taxpayer.

And what about the millions of undocumented immigrants who are embedded in our society and contribute significantly to its strength and success? When the border is sealed to the new administration’s satisfaction, why not install a path to citizenship for those already here? Make it tough. Make it so that, after extending a due process procedure, those really found to be murderers and rapists (which is certainly a tiny minority by anyone’s standards, despite being you-know-who’s bete noire), then deport or incarcerate them in at least more manageable numbers.

Admittedly, for those who got in under the wire, it’s like being awarded one of Willie Wonka’s “golden tickets,” but that might be a preferable outcome rather than risking the destruction of the chocolate factory itself.

Posted on by kenferriesblog

Of fireworks and presidents

It occurs to me as I sit here listening to the battle between West Taylor Street and West Jackson Street as to which can more loudly celebrate the 248th anniversary of our Declaration of Independence, that when the 249th anniversary rolls around, while the explosives may be similar, the realities underlying the pyrotechnics may be much different – perhaps forever.

I refer, of course, to the fact that that there is a presidential election in November.

On the one hand, we have a guy who’s done not badly over the last three and a half years in the Oval Office, especially given an evenly split Senate and an openly adversarial House.

Lest we forget, after a lifetime of public service, he had an unmitigatedly disastrous 90 minutes of a debate a couple of weeks ago.

In fairness, the content of his remarks wasn’t all that bad, but the optics of their delivery were terrible.

And, oh yeah, he’s an old man.

On the other hand, we have a man who did visually better in the debate, even if some of his remarks were non-responsive, bordered on the incomprehensible, or were outright lies.

And, oh yeah, he’s another old man.

I know what follows is going to anger many of my fellow citizens, especially here in Kokomo, but if you wanted to be alliterative, an argument can be made that he is also a fraud, a felon, and a fascist.

The so-called university bearing his name was shut down as a fraudulent con. After going through the American criminal justice system, with all the presumptions of innocence that entails, he was unanimously found guilty as a felon. If you listen to his pronouncements on how he will proceed should he be re-elected, fascist is an apt description.

Harsh, but it is what it is.

I don’t expect to change any minds with this recitation of flaws in the candidates. But there is another recent development that means we should be making decisions with our eyes wide open.

Our Supreme Court has fallen into the trap its most honored jurist, John Marshall, feared the most, it has become political, bending over backwards to advance one political agenda at the expense of another.

In its most recent decision involving presidential immunity, a majority of the court has wandered far down the trail towards what is called, in the political science business, a “unitary presidency.”

Essentially, this means the idea of three co-equal branches of government, as set out in the Constitution, is consigned to the scrapheap of history. In its stead is established an imperial presidency wherein the actions of that branch are beyond challenge assuming the president is acting within their “official” duties – of which they are the “decider-in-chief” as to what is official, or unofficial.

The most contentious of the debates during the Constitutional Convention of 1787 involved the office of the chief executive officer, i.e. the president.

The question: How to give that officer enough power to effectively lead the new-born nation – but not so much power as to become, in all but name, a king.

And in the back of their minds, especially in that of James Madison, how to provide enough restraint on the office, for example, through the creation of a system of checks and balances, for the nation to survive a less than virtuous occupant at the head of the executive branch.

Such restraint is antithetical to the idea of a unitary president.

There “we the people” have it – a contest between a candidate who, while old, has done nothing to indicate a desire to upend the Constitution and 248 years of a government with three co-equal branches, and another, also old, who appears to desire to reimagine the office to his own personal benefit and has a Supreme Court apparently willing to run interference to allow such re-imaginings to become reality.

Think well about the choices. If current trends are carried to their likely conclusion, the people’s ability to make free choices in the future may be seriously circumscribed.