whose rights are they? pre-emptive law challenge

a fundamental change is needed to close the loophole of judiciary timing arbitrage

imagine a world in which i could come to your house, take your car and refuse to give it back. “that’s illegal!” you would say. “that’s unconstitutional! it violates my right to property.” but how would you make and enforce this claim?

what if the police would not help you because they were told not to? what if there were a law allowing me to take your things or a government policy whereby the state asked, required, or threatened me into doing so?

now what?

well, you can go to court. you can challenge the actions. you can challenge the legality of the programs or legislation that enables it.

but what if by the time you can wind through 3-4 levels of courts, i’ve managed to put 300,000 miles on your car and there is really not even any point in getting it back and they removed the law anyway and so the courts never rule because the matter becomes moot?

and how are you to recover the years of having no car because you had had to pay for it and could not afford another?

are these issues even remediable?

lots of big questions here.

as many who have watched the last several years and decades are likely now seeing, this sort of issue is NOTHING like hypothetical. this has become the overt and deliberate strategy of lawmaker and governmental overreach.

they make an absurd and unconstitutional law that takes from the people their rights in flagrant fashion by granting vast new authority to those who have no just or even sane entitlement to it.

then they run roughshod over you and yours for years, even decades before you get your meaningful day in court because even if you win, it’s appealed, then appealed again, then again and we’re all going to be old and gray before the matter is finally settled and, because the perpetrators of these tactics are so often lawyers, they know exactly how to game this system such that the matter is never actually settled and instead just goes away after their multi-year legal abrogations have preyed upon you and altered the shape of commerce and of america.

the affordable care act made outlandish claims about the commerce clause being sufficiently broad to allow for forcing everyone to buy insurance but by the time this issue finally reached SCOTUS, the whole insurance industry had been bent around it and waffle king roberts sided with the liberal arm of the court using a set of truly tortured legal reasoning that “while the commerce clause does not allow the government to mandate commerce, the state can levy a tax and taxing people who fail to engage in commerce (a novel and extraordinarily abusable idea) seems to be OK” and so the law could be allowed to stand.

obviously, this twisted legal reasoning of difference without distinction could support nearly any outrage. is the “everyone has to buy a dog or pay a $1,000,000 fine act” really any different than a dog ownership mandate?

SCOTUS is never entirely scrutable, but the scuttlebutt was always that roberts caved and did what he knew to be legally absurd because “too much had already been put in place and changed, the exchanges were set up,” and while he did see them as illegal and sought to prevent such future outrage, he was simply too cowardly to overturn the applecart and free we the people from this and future depredations of similar nature.

such is the power of “what is.”

and this is why i refer to this as “judiciary timing arbitrage.” you simply put a practice in place and by the time that anyone can really mount an effective or binding challenge, it’s YEARS or even decades later and whatever it is you seek to terminate is now established practice and far more difficult to get people to overturn.

it’s how the overtly illegal becomes settled canon simply through long practice.

the even more nastily efficacious way to undertake such arbitrage is to be a bit smarter about what you allow to wind through the courts and to what stage. this was used to great effect all covid.

you use the CARES act to generate mortgage forbearance, allow health agencies to impose rent and eviction moratoriums, claim all manner or rights to forces masks and mandates upon travelers and employees, and generally step so outlandishly far over the lines that there is simply no plausible line of reasoning or rights structure whatsoever. then you step back when it might go against you and claim the matter is no longer relevant.

first congress and then the CDC told property owners that they could not demand rent or evict tenants from property. this is, to say the least, an extreme taking of property rights that would seem to lack foundation in the concept of limited government and enumerated powers.

but it won’t matter for years.

and even when you win, they seek to go back and unpick history because “now the emergency is over so this precedent is moot.”

this is a truly awful legal theory. it has nothing to do with law, legality, or justice. it’s a literal ask to remove the rule that would prevent this outrage from being perpetrated again because the outrage is over. for now.

this is nothing like “moot.” this is the beating heart of the issue:

can they do this again next time?

and the answer to this MUST be no if we the people are to regain and retain any semblance of our rights and agency and free ourselves from this judiciary arbitrage driven intrusion and oppression.

leviathan cannot be allowed to simply step back across the line and say, “well, it’s over now so no ruling needed.”

could there be any practice more assured of assuring that this will happen again?

and make no mistake, this is deliberate and planful practice undertaken with malice aforethought.

this is way past “2 weeks to flatten the curve” and into “2 years to do whatever we want before you have any hope of stopping us.”

the missouri v biden ruling with which many of you are likely familiar was an earthquake for these people. the judge was quite literally gobsmacked by what he saw and the level of intrusion, pressure, and manipulation brought to bear upon social media companies by the state. he was so stunned by the 10’s of thousands of pages of evidence of it that he asked the US government “can these emails and interactions possibly be real?” and the government stipulated that they were. they were proud of it.

it’s not every day you see a judge use the word “orwellian” in a ruling and his 155 page opus was a wonder of sagacity and clear eyed appraisal. on the fourth of july (apt) he said

“This is the most massive attack against free speech in United States’ history,” that the Biden administration has “blatantly ignored the First Amendment’s right to free speech,” and that the Biden administration “almost exclusively targeted conservative speech.” 

and he barred them from doing this any more. no more standing in front of the twitter or meta headquarters holding a brick and admiring their window while saying “nice section 230 exemption you got there. be a shame if someone came along and took it away because you didn’t want to take posts down” because apparently that liability shield is intended to protect them from everyone BUT the state.

it’s a massive and monstrous abuse of fundamentally unjust and inapposite regulatory fiat to force social media to act as a proxy to perpetrate that which the government could not itself do without clearly violating the first amendment.

but augments about “it’s a private company, they can do what they want” fall pretty flat when you’re standing in front of the store with a lit molotov cocktail and asking about what the “i agree not to burn this place to the ground” discount is.

judge doughty (big win for nominative determinism there) really knocked this one out of the park.

"The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Judge Terry A. Doughty MEMORANDUM RULING ON REQUEST FOR PRELIMINARY INJUNCTION

bravo, sir. bravo.

and the astonishing response of the government to this was “we need to keep doing it.”

one would expect them to be at least slightly abashed. nope. not a chance.

they immediately applied for a stay on the ruling while it was appealed. (this would prevent it from going into force for months or years.)

judge D denied it.

“always irreparable injury”

huzzah.

but rejoicing was premature. an unlucky draw for the 3 judge panel for the 5th circuit led to the disgraceful spectacle of a federal appeals court ignoring the “irreparable injury” of allowing this pernicious and predatory practice to persist and instead literally saying:

we must allow the state to keep taking your rights while we consider the issue of whether the state has the power to take these rights.

and that, mis amigos, is a truly despicable doctrine. you can read more about what happened HERE.

so, once more, judicial timing arbitrage rears its head.

we get to keep doing this for years (and hopefully across the election, just like we did last time) and we can keep data and hunter and corruption and who knows what else out of the media. this is not the american way. this is soviet, right down to the captured pet academics penning hilarities of fact-free justificational jingo in defense.

this is past nonsense and into outright inversion.

and it WILL continue until these rules and practices are changed.

and so, being a helpful gato, i have a proposal: this needs to be turned on its head.

and it’s really very simple once you look at it: tie does not go to the oppressor. questions or doubts over an issue do not justify continued practice, the benefit of doubt must be given to we the people.

at issue is the most fundamental of underpinnings for a free people and a sound republic:

“to whom does the primacy of prerogative accrue?”

and that answer is everything.

it is and can only be binary.

either your rights stand inalienable by and paramount to the state, or the state’s powers supersede yours and you have no rights at all, only permissions and privileges that may be taken from you at whim by the leviathan than stands above you.

there is no middle ground. cede even one for even one reason and you are lost. your rights are alienated from you. and the rest is just a negotiation about whether every new reason or pretext is sufficient to proscribe your liberty further.

and that is a fight they will always win, especially if even in outrageous cases, it takes years and decades and vast monies to even attempt to effect a cure.

so let’s move the legal system to respect our rights above their whims.

it’s pretty simple:

if the legality or constitutionality of a law or practice is called into question and such challenge is deemed worthy of hearing by a competent judiciary, then that law or practice is automatically and non-appealably stayed until the matter is decided.

ties do not go to the tyrant.

no more “oppress while we assess.”

it’s “liberty until you prove you have a just power to undertake this act.”

it’s really that easy. and it would change so, so much.

sure, it would make it MUCH harder to pass and retain sweeping laws and regulatory technocracy and this will doubtless elicit howling from the lawgivers and bureaucrats, but, um, good.

to my mind, this is a feature, not a bug.

it’s a foundational american principle.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

shall make no law.

this is not exactly ambiguous. it’s not “shall make piles of laws and hope we can keep them in force long enough to buffalo you before dropping the matter and moving on to the next one.”

if indeed the purpose of our constitution is to secure the blessings of liberty for ourselves and our posterity, then this notion of “oppress first and fight about it later” is not only incompatible with america but antithetical to it.

how can one square such encroachment with government deriving just power from the consent of the governed?

it’s nothing short of an attack on the very idea of the republic.

and so it must end and the easy way to end it is to make putting new laws into abeyance when they may lack sound foundation a trivial and automatic matter.

it would make each such idea subject to challenge BEFORE it could be implemented or sustained.

“OMG, but then it would take 5 years to pass a law!”

to this i have 2 responses:

1. so?

2. well, then make the system for challenges and hearings more streamlined so that you can get a rapid ruling. hell, for the big ones and big questions, how about you ask SCOTUS ahead of time?

the responsibility to appease and accommodate the aspirations of tyrants does not fall upon we the people.

it is the onus of government to demonstrate that powers sought by the state are just and consistent with the rights, liberty, and consent of those they propose to govern.

this is the base concept upon which the entirety of just government must set its foundation and we have strayed over-far from it and must find our way back.

this meme gets trotted out as some sort of extremism, but the fact of the matter is that it’s just a simple, literal encapsulation of the first two sections of the american bill of rights.

our founders would have seen this as nothing like controversial.

they would have just said “well yes, obviously.”

and so the question that arises is “what are we to make of those who seek to portray it as some sort of dangerous domestic insurrection for otherwise peaceful people to seek to retain the rights to speech, defense, and self determination?”

nothing good, let me tell you.

there is a word for those who would seek to leave you defenseless to claim your agency and your speech.

that word is not “just government.”