The Worst Candidate for Civil Liberties Just Entered the Race

The impeachment process is taking a break, but the news never stops. Donald Trump is pardoning men convicted and accused of heinous war crimes. I’ve got thoughts. We’ve also got a new Democratic presidential contender. Michael Bloomberg is officially in, and he’s got $50 billion burning hole in his pocket. A formidable challenger? I hope not. It’s hard to think of a modern presidential candidate who’s worse on civil liberties than the former mayor of New York. 

We’ll discuss Bloomberg and pardons, but I’ll also highlight a significant moment at the Supreme Court, one of those tell-tale opinions that doesn’t make headlines but rather sets  constitutional conservative’s heart a-flutter with delight. Today’s French Press:

1. Don’t confuse the law of armed conflict with rules of engagement.

2. Michael Bloomberg is a radical opponent of equal access.

3. SCOTUS just put Congress and the presidency on notice—the times might be changing.

Getting wonky about war crimes.

As the Twitter saying goes, two things can be true at once. First, for many years (especially during Obama’s Afghanistan surge) American warfighters were excessively handcuffed by onerous rules of engagement. Second, while onerous rules of engagement have generated justifiable sympathy for American soldiers, Trump’s pardons have nothing to do with handcuffed American troops and everything to do with excusing actual war crimes. 

Here’s the basic legal background. American soldiers in every war are governed by the Law of Armed Conflict (LOAC). This is the fundamental law of war, a complex web of statutes and treaties that attempt to govern the way nation-states fight. LOAC sets the lines that no American commander—and even no American president—can lawfully cross. 

Rules of engagement are something else. They represent rules imposed by commanders that place additional restrictions on the use of force that go beyond the requirements of the LOAC. For example, to take a real-world example, the law of war would permit American artillery to target a civilian structure if American forces are receiving fire from that structure. Yet during the Battle of Ganjgal, Afghanistan—a famous Afghan fight where Dakota Meyer earned the Medal of Honor for his heroic attempts to rescue a small team of Marines—American forces operated under a different standard. They could not employ air strikes or artillery fire against “residential compounds, defined as any structure or building known or likely to contain civilians, unless the ground force commander has verified that no civilians are present.” 

That’s not the law of armed conflict; that’s a rule of engagement, and it likely cost American lives.

Rules of engagement like the misguided and dangerous rule above have built up an enormous amount of (justified) frustration in the ranks. I served in Iraq during the surge, and while our rules of engagement were looser and more forgiving, they still cost lives, including the life of a dear friend. As a result, particularly in Red America, there exists a very real sense that senior leadership doesn’t back the men on the ground. 

But, and this is very important, the rules of engagement have virtually nothing to do with Trump’s recent pardons and his recent intervention into the military justice and administrative process. Let’s briefly look at each of the men he’s helped.

Trump pardoned 1st Lieut. Clint Lorance after Lorance was convicted of murder for ordering his men to open fire on three Afghans who were not presenting any threat to his platoon. He was also convicted of firing his rifle at random into a village and falsifying a report of receiving incoming fire. 

Trump also pardoned Maj. Matthew Golsteyn before the Green Beret stood trial on murder charges. He “allegedly told CIA interviewers during a polygraph test that he had killed an alleged Afghan bomb-maker and later conspired with others to destroy the body.” The bomb-maker was in Golsteyn’s custody, and Golsteyn allegedly summarily executed him.

Trump reversed the demotion of Navy SEAL Eddie Gallagher and directed the Navy to preserve his Trident pin, maintaining Gallagher’s membership in the SEALs. A court-martial had acquitted Gallagher of murder charges but convicted him of posing for a picture with an enemy corpse. As a result of Trump’s action, Gallagher faced no lasting consequence for the crime (though he did endure substantial pre-trial detention.) 

Each of these cases involved true war crimes. They were not about American forces handcuffed or hamstrung by politically correct generals or weak-willed Washington politicians. Murder, for example, is a crime no matter the rules of engagement. Posing with an enemy corpse has nothing to do with the stress of restraining American forces in combat. 

That’s why so many Pentagon officials are troubled by Trump’s actions. It’s one thing to unshackle troops from onerous rules of engagement that are defined by the command. It’s another thing entirely to unshackle them from the law. 

When Bloomberg battled the Bronx Household of Faith.

Ask a progressive civil libertarian about former New York Mayor Michael Bloomberg, and they’ll snort derisively and respond with a single phrase, “stop-and-frisk.” For years, Bloomberg maintained and defended an aggressive policy of street searches that frequently targeted black and Hispanic residents, yet turned up weapons only a small fraction of the time. 

Ask a conservative civil libertarian about Bloomberg, and they’ll snort derisively and respond with a different phrase, “gun control.” There is no more committed and powerful advocate for further restrictions on Second Amendment rights. 

And what about economic liberty? Well, “Nurse Bloomberg” would like a word with you about your sugary sodas. 

But I’ve got a different beef with Bloomberg, and it relates to the first freedom in the Bill of Rights, his years-long legal battle to keep churches from gaining equal access to New York City’s public schools. Throughout his tenure as New York mayor he fought long and hard to defend a policy that prevented churches from using New York City schools to host worship services, a common and accepted practice in schools across the length and breadth of the United States. 

But not in New York. The Big Apple allowed secular groups to access their schools. It even allowed religious groups to access the schools. But it stubbornly refused to allow churches—many of them majority-minority congregations that could not afford to build or buy their own buildings—to hold worship services in empty gyms or empty classrooms on Sunday morning. 

The genesis of the controversy lies in a decades-old, largely discredited progressive legal theory—that if public schools and other public institutions granted equal access to their facilities to secular and religious organizations, then the religious use would constitute a perceived endorsement of religion and violate the Establishment Clause. 

This was the core dispute at issue in a 1981 Supreme Court case called Widmar v. Vincent. In Widmar, the University of Missouri at Kansas City prohibited the use of university facilities “for purposes of religious worship or religious teaching.” It justified the ban by claiming that it had a “compelling interest in maintaining strict separation of church and state.” The Supreme Court disagreed, holding that the ban on religious use was “content-based discrimination” against the Christian group’s “religious speech.” 

This is an entirely sensible ruling. It’s hardly an “establishment” of religion to permit religious groups the same access to public buildings that the state provides to anyone else. In fact, denying access to religious groups actually relegates religious expression to second-class status—an idea utterly contrary to the letter and spirit of both the Free Exercise Clause and the Free Speech Clause of the First Amendment.

Widmar is the case that spawned a thousand lawsuits (and thousands of churches). For the next 30 years, religious liberty litigators executed a Sherman’s March to the Sea against anti-religious discrimination, laying legal waste to university policies, public school regulations, and other public policies that purported to block equal access. The result is that churches and religious groups operate with remarkable freedom on American campuses and in American schools. 

But there was resistance every step of the way. Universities and schools balked at complying with the law, their lawyers deployed ever-more-clever legal arguments to try to parse different forms of religious speech, and the final few holdouts settled on a last-ditch argument to justify their anti-religious discrimination. They argued that “worship” was distinctly different from other kinds of religious speech and presented unique Establishment Clause issues. It’s an argument that still has some purchase, particularly with progressive judges.

That’s the basis upon which the New York City schools blocked access to churches like the Bronx Household of Faith, and that’s the stance that Mayor Bloomberg stubbornly maintained when he took control over the city’s schools. I was serving as a senior counsel at the Alliance Defending Freedom as it represented the Bronx Household of Faith, and I distinctly remember being completely stumped by the allegedly “moderate” Bloomberg’s stubborn resistance to religious freedom.

My friends at ADF fought hard for years on behalf of New York churches. They won injunctions that granted access while the case went up and down the federal courts. Then, shortly after the Second Circuit ruled against religious liberty and against New York churches, Mayor Bloomberg left office. When Bill de Blasio took control, he lifted the ban, granted churches equal access, and New York’s churches have been enjoying equal access without substantial controversy ever since.

Why was that so hard?

Given Bloomberg’s position on the First Amendment (stifling religious freedom), the Second Amendment (limiting gun rights), the Fourth Amendment (implementing a program of unreasonable searches and seizures), and the 14th Amendment (violating core principles of equal protection), it’s worth asking – is there any worse candidate for civil liberties than the “moderate” former mayor of New York?

The Supreme Court might just make Congress do its job. 

How do you know if you’re a conservative constitutional nerd? If the phrase “nondelegation doctrine” fills you with sadness. It’s a lost constitutional doctrine that essentially holds that Congress is profoundly limited in its ability to delegate its lawmaking functions to the executive branch. 

The doctrine was largely discarded during the New Deal, and the result has been decades of congressional abdication of its lawmaking powers to the increasingly powerful presidency. Congress writes vague laws (or sometimes no law at all), and the administrative agencies use their rulemaking process to fill in the gaps. 

Presidents, then, make the law, enforce the law, and (through their administrative law judges, judicial officers who work for the executive branch and decide administrative disputes), even interpret the laws they’ve made and enforced. The result is an increasingly imperial presidency, a weakened Congress, and heightened national polarization as the stakes of each presidential contest seem to only increase. 

Well, there are signs the Supreme Court just might start restoring the constitutional order. In a case earlier this year, four justices—Alito, Roberts, Thomas, and Gorsuch (Justice Kavanaugh did not participate)—signaled a willingness to revive the nondelegation doctrine. In a dissenting opinion, Gorsuch wrote these important words:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

Then, Monday, Justice Kavanaugh authored a few short paragraphs indicating that there now might be five justices willing to revive American separation of powers. In a short concurrence from a denial of cert, Kavanaugh wrote this:

I write separately because JUSTICE GORSUCH’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases. JUSTICE GORSUCH’s opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 685–686 (1980) (Rehnquist, J., concurring in judgment). In that case, Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.

Does this mean the administrative state is now on life support? Hardly. Reviving the doctrine does not mean sweeping aside America’s executive agencies. It would, however, mean that executive actions would face greater judicial scrutiny, Congress would have less ability to abdicate difficult policy questions to regulators, and democratic accountability would start to make a comeback in American lawmaking. In other words, the constitutional vision of the Founders would start to peek back out from its New Deal grave. 

One last thing … 

No GOAT today. No Grizzlies. But this is what it looks like to come back from five down in eight short seconds. Enjoy: