Kindergarten Konstitutional Law Comes To The Southern District Of New York

February 08, 2025 Francis Menton @ Manhattan Contrarian

In yesterday’s post, reviewing a Washington Post op-ed by Ruth Marcus that called efforts by the duly-elected President to direct the bureaucracy to implement his policies a “power grab” and an “onslaught against the government itself,” I described the piece as reflecting “kindergarten-level constitutional analysis.” After all, my 6 year old first-grader grandson is fully capable of reading the first sentence of Article II of the Constitution (“The executive Power shall be vested in a President of the United States of America”) and figuring out that this guy is given the sole and full power to direct the executive branch of the federal government. Nothing about the elected President exercising such powers is or can be a “power grab.” If you are somehow unable to grasp that simple proposition, you therefore must be at sub-first grade level of comprehension, and thus kindergarten level, at the highest.

Well, today Kindergarten Konstitutional Law came to the Southern District of New York. In response to a motion made by some 19 states (all Democrat-led), a Southern District Judge named Paul Engelmayer issued a Temporary Restraining Order preventing President Trump and Treasury Secretary Bessent from “granting access” to Treasury Department payment systems to anyone other than “civil servants with a need for access to perform their job duties.” Here is a copy of Judge Engelmayer’s Order. Looking at the language of the Order that I just quoted, it seems to mean quite clearly that even President Trump and Secretary Bessent themselves are enjoined from looking at the line-by-line details of who is getting paid by the Treasury. Why? Because the information is “sensitive.” I’m not making this up.

So who is this Engelmayer guy? You will not be surprised to learn that he is someone with the highest of the high credentials of the super-elite who claim the prerogative to run the federal government outside of any democratic control. Here is a Wikipedia biography of Engelmayer. (The bio contains a prominent caveat that “a major contributor” to the bio “appears to have a close connection” to the subject. I take that to mean that Engelmayer probably wrote the thing himself, so you can take it for what it’s worth.). 

The bio says that Engelmayer is a summa cum laude graduate of Harvard College, and a magna cum laude graduate of Harvard Law School. He clerked on the D.C. Circuit, and then for Thurgood Marshall at the Supreme Court. He served as a prosecutor in the Southern District of New York, and did a term with the Solicitor General’s office in Washington during the Clinton administration. And at some point he slid seamlessly into the job of Managing Partner of the New York office of Wilmer Hale. He was named to the Southern District bench by President Obama in 2011.

Now there is a guy who is indisputably really, really smart. For a few of my prior pieces on rule by people who are really, really smart, try here, here and here.

Engelmayer is so smart that he has figured out that the elected President and his designates cannot be allowed get access to the details of where the government’s money is going, because that information is too “sensitive.” Here is the key line of reasoning (if you want to call it that) from Engelmayer’s Order:

The Court’s firm assessment is that . . . the States . . . will face irreparable harm in the absence of injunctive relief . . . both because of the risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking.

But of course Engelmayer’s Order specifically exempts from its restraints “civil servants with a need for access to perform their job duties.” Those people somehow have a higher standing to know whom the government is paying than the elected President and his designees? By what constitutional provision? Engelmayer fails to mention that.

A bit farther down in Article II of the Constitution is the line that describes the President’s main job: “[H]e shall take Care that the Laws be faithfully executed.” Now, how exactly is the President supposed to do that if the courts think they can prevent him from getting access to the details of where the government’s money is being spent?

At her blog today, ex-law professor Ann Althouse was quickly on top of this issue:

Is the federal judge taking the position that in the name of enforcing the Take Care Clause, it is the role of the judiciary to oversee whatever the President does with the executive power that the Constitution vests in him? Is there some extra-legal notion that the federal judge should seize the power to put on the brakes when a President with questionable judgment is moving too fast?

Excellent questions. But sorry, Ann, Judge Engelmayer is way, way too “smart” to ask himself such insightful questions. He knows that his main duty here is to his team to prevent the duly elected President from changing the preferred policies of the permanent bureaucracy. The role of his super-brainpower is to come up with some devious logic that can make that result seem somehow plausible under the Constitution.

This one is really too crazy to last long. The only issue is how much left-wing judges like Engelmayer will be able to slow Trump down from fulfilling his promises to the electorate.

UPDATE: A couple of comments from Glenn Reynolds of Instapundit. (1) “It’s a previously unknown clause in Article II: The executive power shall be vested in a President of the United States, unless he threatens the establishment’s feedlot.” (2) “[Englemayer] is angling for Attorney General in the next Democratic administration.”

Really, ridicule is the only appropriate response to this kind of thing.

The Ongoing Erosion Of Welfare Reform In New York

October 20, 2024 By Francis Menton @ Manhattan Contrarian

When I started this blog back in 2012, we were just coming to the end of 20 years of Republican, or quasi-Republican, New York City mayors (Giuliani and Bloomberg), who also had support from a newly-Republican Congress elected in 1994. One of the great triumphs of that era was welfare reform. The new Republican Congress made reform of welfare a priority, and after their first efforts were vetoed by President Clinton, in August 1996 he signed a compromise bill called the Personal Responsibility and Work Reconciliation Act. Among the reforms contained in that Act were time limits and work requirements for welfare recipients.

With the combination of the federal welfare reform and the Giuliani mayoralty, the ranks of welfare recipients in New York City started to fall rapidly; and the decline continued during Bloomberg’s three terms from 2002-2013. In this post from April 2019, I collected statistics on various metrics of New York City’s progress during the 20 years under Giuliani and Bloomberg, from 1994 to 2013. The decline in crime was certainly impressive (murders went from 1946 in 1993 to 332 in 2013), but the decline in the welfare rolls was a close second: from “nearly 1.2 million” in 1993 (out of a population of 7.3 million) to 357,000 in 2013 (out of a greatly increased population of 8.5 million). As a proportion of the population, those receiving welfare had gone from nearly 1 out of 6 to barely 1 out of 25. It was a remarkable transformation.

It’s now nearly 11 years since Bloomberg left office, and the goal of minimizing welfare dependency is long gone and forgotten. As the number of welfare recipients creeps ever upward, somehow this issue rarely makes the news. However, the New York Post has an important article on the subject today. The headline is “Nearly 800,000 New Yorkers collected welfare checks last fiscal year — most in decades.”

The Post provides this helpful graphic of mileposts along the road to welfare reform and its subsequent undoing:

The Post queries the City bureaucrats on the reasons for the increase, and particularly the recent surge. The bureaucrats deny that the recent influx of illegal immigrants has much to do with it:

[T]he city claims only “a very small percentage” [of the new welfare recipients] are illegal border crossers who’ve arrived since spring 2022. In March, the agency estimated 1.3% of that month’s 535,184 recipients were non-citizens, or nearly 7,000.

So what then accounts for the sudden surge? The City’s spokesperson quoted by the Post tries to put the blame on the pandemic:

The city’s Department of Social Services attributes the huge hike to an “unprecedented” challenge of trying to help New Yorkers get back on their feet after many — especially people of color — were hit hard in the pocket during the pandemic.

That’s rather lame, especially considering that most of the recent surge has taken place after the pandemic was already basically over in 2022.

A far more likely explanation is that as soon as nobody is looking the functionaries revert to their natural state of encouraging dependency. After all, the more people who are dependent on the programs, the more will be the budget and staff of the agencies administering the programs. Increasing budget and staff is the inexorable goal of all bureaucracies.

Likely the functionaries who are facilitating the increases in welfare rolls think of themselves as doing good. They are “helping struggling families,” or something like that. They don’t see how it is demeaning to make dependents out of people capable of self-sufficiency.

While Mayor Adams currently faces corruption charges (about which I have expressed my doubts), a more important criticism of the Mayor is that he is detached from the details of the City’s governance. He enjoys going to clubs and getting treated like a bigshot, while letting the bureaucracy substantially run itself. A bureaucracy left to run itself just keeps finding new ways to grow its mission and increase its budget and staff. And thus we have the return of mushrooming welfare dependency.

Three Big Blows

July 02, 2024/ Francis Menton @ Manhattan Contrarian

In the 235 or so years since our Republic was founded, until now, no ex-President has ever been prosecuted for allegedly criminal acts committed while in office. This has been a political norm of great consequence. Any such prosecution of an ex-President cannot avoid being inherently problematical, inevitably bringing to a head the conflict between, on the one hand, constraining the President in the exercise of his constitutional duties and, on the other hand, declaring him “above the law.” By far preferable would be for this conflict never to arise, and for the applicable legal rules never to get defined and to remain ambiguous.

So for all those 235 years, our predecessors in the government, whatever their political differences and contentious disputes, have largely refrained from the temptation to use the criminal justice system to bring down political adversaries, and entirely so in the case of ex-Presidents. That political norm came to an abrupt end with the massive “lawfare” campaign initiated during the past two years by Democratic Party prosecutors in multiple jurisdictions against ex-President (and current candidate) Trump.

You might think that people abrogating a political norm like this, so central to the proper functioning of the Republic, would only do so in the face of the most clear-cut circumstances of obvious and significant statutory violations, crying out for criminal redress. But of course that is not the MO of our current garbage political powers-that-be. Instead, we see broadly-worded criminal statutes that would never be so used against anyone else, twisted out of context in the effort to take down a hated political foe. Now, the Supreme Court has been forced to rule on several issues in these cases, and has come out in unsurprising ways.

During the past week, the lawfare campaign against Trump suffered three major blows from Supreme Court decisions. The first of those came in a decision called Fischer v. United States, issued on June 28, and the other two in Trump v. United States, issued yesterday (July 1).

Fischer v. United States involved a defendant who attended the protest at the Capitol on January 6, 2021, and who ended up entering the building. He was prosecuted under 18 U.S.C. Section 1512(c)(2), for “otherwise obstruct[ing], influenc[ing] or imped[ing] any official proceeding.” The feds prosecuted many January 6 protestors under 1512(c)(2), particularly because the charge came with penalties that were extraordinarily high compared to the nature of the wrongdoing (up to 20 years in prison). The language of 1512(c)(2) may seem at first blush to be plausibly applicable to the events of January 6; but there is a statutory construction issue in that Section 1512(c)(2) follows immediately after Section 1512(c)(1), which deals only with someone who “alters, destroys, mutilates, or conceals a record, document, or other object.” The Supreme Court held that Section 1512(c)(2) must be read in the context of Section 1512(c)(1), and only used in circumstances where the defendant “impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding. . . .”

Trump was not a party in Fischer, but it turns out that in special prosecutor Jack Smith’s D.C. prosecution of Trump over the events of January 6, one of the four counts of the indictment is for alleged violations of Section 1512(c)(2). And that count does not involve anything about impairing the availability of records, documents or objects for an official proceeding. Moreover, that count is very much the heart of the indictment. 

The other three counts of the indictment are even more problematical: 

1. Count 1 alleges that the January 6 events constituted a “conspiracy to defraud the United States” under 18 U.S.C. Section 371; 
2. Count 2 alleges that the alleged violation of Section 1512(c)(2) inherently also violated Section 1512(k); and 
3. Count 4 alleges a supposed “conspiracy to suppress exercise of rights,” under 18 U.S.C. Section 241. In short, beyond 1512(c)(2), it’s novel theories under vague statutes that would never be used in a similar way against anyone else.

Trump v. United States is mainly about the issue of presidential immunity from prosecution. As you have likely already read, the case deals a second major blow to the lawfare campaign by finding that the President has a broad swath of immunity for certain acts taken while in office: absolute immunity from criminal prosecution “for actions within his conclusive and preclusive constitutional authority,” and presumptive immunity from prosecution for “all his official acts.”

That leaves what could be a large area of acts not taken in the President’s official capacity. The line may not be easy to draw. But the case discusses certain of the factual allegations of the indictment, and specifically directs that Trump’s interactions with members of the Justice Department to try to get them to take certain actions are clearly within the category of “official acts.” Those interactions form a significant part of the indictment.

The case now goes back to the District Court to try to draw the lines set by the Supremes among the various acts alleged in the indictment. If the case should last that long, given the hostility of the District Judge and the D.C. Circuit to Trump, I would not be surprised to see the Supreme Court weigh in again on these issues.

The Fani Willis prosecution in Georgia is also deeply impacted by the Supreme Court’s immunity ruling. Here is a copy of the indictment in that case. There are some 41 counts. The large majority appear to involve some aspect or another of official acts of the President.

The third major blow to the lawfare campaign is in Justice Thomas’s concurrence in Trump. Thomas questions the entire basis of Jack Smith’s standing to act as a prosecutor:

In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. . . . If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.

Justice Thomas’s question impacts both of Jack Smith’s prosecutions, the one in D.C. over the events of January 6, and also the classified documents trial in Florida. To date, the Justice Department and mainstream press commentators have pooh-poohed this issue; but now, with Thomas’s opinion, both District Judges will have to take it seriously.

With these three major blows, it is very hard to see how any of these cases should proceed further. They should all be dropped. But I can confidently predict that none of them will be. In their zeal, the prosecutors will soldier on, the Republic be damned.

Manhattan Justice: America's Judgement at Nuremberg

By Rich Kozlovich

“Judgment at Nuremberg remains a thought-provoking exploration of justice, morality, and the aftermath of one of the darkest periods in history".............."A court is more than a courtroom.  It is a process and a spirit. It is the House of Law!   They distorted, they perverted, they destroyed justice and law in Germany.  They withheld due process of law, eliminating the right to appeal.  They share with the leaders of the Third Reich responsibility for the most devastating crimes in the history of mankind.  Hopefully the day will come they will receive the justice they've deprived from others, based on evidence, truth, justice and the American way."

The rule of law is now and has always been foundational for a civil society.  Laws passed, enforced, and ruled on by people who swore oaths to do so without malice, bias, or prejudice. Truth, justice, and the American way.  That's always been foundational to American culture. That's changing rapidly, and rabidly so.

Naturally it's expected in any system there will be some who just won't follow the rule of law.  But it never occurred to Americans that would become the consensus in America's justice system, but now we know better.  The justice system in America has devoted itself to destroying Donald Trump in order to prevent him from becoming President once again, and there's no level of corruption they won't embrace.  It's justice by tyranny, and that's not anything new. 

First, let's take a look at this piece by Lee Cary that appeared in the Canada Free Press, Lawlessness can coexist, even thrive, with laws, lawyers, judges and courts.  The Third Reich

This is a picture that was taken on October 1936 of Berlin judges swearing an oath of allegiance to Adolf Hitler saying:

“I swear I will be true and obedient to the Fuhrer of the German Reich and people, Adolf Hitler, observe the law, and conscientiously fulfill the duties of my office, so help me God."

The problem is obedience to Hitler had nothing to do with the observance of justice.  Jews were found guilty simply because they were Jews, and many sentenced to death.  Some movies are so profound and so provocative they hang with you for the rest of your life, and for me Judgement at Nuremberg was one of them.  Spencer Tracy and Burt Lancaster starred in what I considered to be some of their finest work, and given what's going on in America's justice system today, every American needs to see this movie, which is streaming for free on TUBI. 

I think the underlying principles are applicable to the judicial corruption, commonly called Lawfare, that's happening right now in America.  The vile misuse of laws, the twisted logic, the clear corrupt political intent behind these actions, and the outrageous judgment against Trump in New York by Judge Engoron, and the prosecutorial misconduct of Letitia James exemplify that corruption.  

At the end of the trial Spenser Tracy portraying Judge Dan Haywood reads the rationale for his judgement against Nazi Judge Janning played by Burt Lancaster saying:

Judge Janning to be sure, is a tragic figure. We believe he *loathed* the evil he did. But compassion for the present torture of his soul must not beget forgetfulness of the torture and death of millions by the government of which he was a part. Janning's record and his fate illuminate the most shattering truth that has emerged from this trial. If he and the other defendants were all depraved perverts - if the leaders of the Third Reich were sadistic monsters and maniacs - these events would have no more moral significance than an earthquake or other natural catastrophes. But this trial has shown that under the stress of a national crisis, men - even able and extraordinary men - can delude themselves into the commission of crimes and atrocities so vast and heinous as to stagger the imagination. 

No one who has sat through this trial can ever forget. The sterilization of men because of their political beliefs... The murder of children... How *easily* that can happen! There are those in our country today, too, who speak of the "protection" of the country. Of "survival". The answer to that is: survival as what? A country isn't a rock. And it isn't an extension of one's self. 

It's what it stands for, when standing for something is the most difficult! Before the people of the world - let it now be noted in our decision here that this is what "we" stand for: justice, truth... and the value of a single human being!

Later in the movie Judge Janning attempts to explain to Judge Haywood why he did what he did in an attempt to ameliorate the vileness his actions saying:

“Judge Haywood… the reason I asked you to come. Those people, those millions of people… I never knew it would come to that. You must believe it!”

Judge Haywood responds:

“Herr Janning, it ‘came to that’ the first time you sentenced a man to death you knew to be innocent.”

We're seeing justice turned on it's head with corrupt prosecutors, for political gain.   And they're being supported by the media and powerful people who want to see the end of the Constitution, but in order to do that they need to destroy the only man in America capable of preventing that.  Donald Trump.  

Yeah, I know, shocks me too, but there it is, and it's a fact.  And he has nothing to gain from all this abuse he and his family are suffering except a keen desire to prevent America from being destroyed by leftist monsters wanting to impose a tyrannous worldwide system of governance, with China leading the way. 

In 2021 I published this piece,

A Stranger in Town, 1943, noting the dramatic difference between Hollywood, academia, sports, the media in general and the political "leaders" in the nation today, and much of which is worth reprinting now.

Morgan plays a Supreme Court Justice on vacation, and incognito, who gets involved in a small town's politics because of the corruption, hence the theme of this movie is the need to fight those in power who are "acting contrary to the interests of the country".  

At the end of the movie the corrupt mayor demands to know who this stranger is that comes to his town causing trouble.  After John Josephus Grant (Morgan), an Associate Justice of the Supreme Court identifies himself, to the chagrin of his detractors, he then answers:

It's only right that you should know why I, a stranger, have become involved in your affairs. Believe me, it's not because I am a Justice of the Supreme Court. It's because, like all of you here, I am a citizen of this country. That is no little honor. 

Men have fought revolutions, have died, to be called "citizen". And as citizens, we carry a burning responsibility. It means that when we elect men to public office, we, we cannot do it as lightly as we flip a coin. It means that after we've elected them we can't sit back and say: "Our job is done. What they do now doesn't concern us." That philosophy of indifference is what the enemies of decent government want. If we allow them to have their way to grow strong and vicious, then the heroic struggle which welded thousands of lovely towns like this into a great nation means nothing. Then we're not citizens, we're traitors. 

The great liberties by which we live have been bought with blood. The kind of government we get is the kind of government we want. Government of the people, by the people and for the people can mean any kind of government. It's our duty to make it mean only one kind - uncorrupted, free, united.

I believe Mayor Connison, that I’ve answered your question. 

What I believe is the foundational values that created America are being destroyed, and America is in crisis.  We've allowed those who hate the American identity, the American culture, the American economic system, and the Constitution to assume power at all levels of government, education, the media, and a judiciary filled with political hacks such as Judge Austin Harkley in this movie.  A judiciary that's completely lost any sense of balance or understanding, and in so many cases is stunningly corrupt, and I include the Supreme Court of the United States.  

We have failed to call to task the elected officials who are clearly enemies of America, enemies who claim conservatives are destroying "our" democracy.   What democracy are they talking about?  The one like the Democratic People's Republic of North Korea?  Because that's "their" Democracy, but that isn't American Democracy, and it isn't "our" democracy, hence the line:

"Government of the people, by the people, and for the people can mean any kind of government."   "It’s our duty to make it mean only one kind uncorrupted, free, united."

Let's try and get this right, at least once.  Their "Democracy" destroys our "Republic"!

We no longer know or understand history.  We substitute real history with leftist propaganda and call it history.  No one reads books any longer, especially history books.  We are an entire population that's been beguiled by the main stream media that's either too corrupt, or too lazy to find out the truth.  Yet because of the internet we have access to more information from more sources than any population in history.  Through a "philosophy of indifference" we've foolishly allowed these enemy citizens of America "to have their way [and] to grow strong and vicious"!  

And we wonder:  How did it all go wrong?