During the dark days before Heller, the rogue inferior courts, like the Ninth Circuit, came to the consensus that the phrase “a well regulated militia” was more indicative of who had the right to keep and bear arms than “the right of the people”.
The result of this piece of stupidity was that we, The People, could not challenge a law based on the Second Amendment. We had no standing.
The federal courts can only address active controversy for the people affected for which they can grant relief. You cannot go to the court and have them decide on which color is best. Nor can you challenge many government regulations, even if they are known to be bad. You have no bone in the fight. No skin in the fight.
The courts have long ruled that being a taxpayer does not grant you the right to challenge the government.
Heller says that the Second Amendment applies to the people
Yes, it does. The Court did a fantastic job of driving a spike through the heart of that bit of sophistry in Heller, but that doesn’t mean that the inferior courts haven’t found other things they can twist.
That idea, that the only “people” that had standing to make a Second Amendment challenge were the Militia. That private Militias are banned in many states. The only “legal” militia is the National Guard. The state controls the National Guard. The only people that can challenge state infringements on Second Amendment grounds was the state.
What Part of the Constitution Authorizes the Department of Education?
The civics and history lessons required to understand the federal government’s role in education are of course deeply intertwined and begin, as with so many things American, with the Constitution. That document makes no mention of education. It does state in the 10th Amendment that “the powers not delegated to the United States by the Constitution … are reserved to the States respectively.” This might seem to preclude any federal oversight of education, except that the 14th Amendment requires all states to provide “any person within its jurisdiction the equal protection of the laws.”
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When it Comes to Education, the Federal Government is in Charge of ... Um, What? | Harvard Graduate School of Education, (last visited Nov. 13, 2024)When the Supreme Court issued their opinion in —Brown V. Board of Education, 98 L. Ed. 2d 873 (1954) the Federal Government has used the 14th Amendment to justify prosecuting legally sanctioned discrimination.
The issue is that the Federal Government’s lust for power caused them to overstep “…to correct for persistently unequal access to resources…” —When it Comes to Education, the Federal Government is in Charge of ... Um, What?, supra. This is all the justification they really needed to create the Department of Education.
You and I can look at this and agree that the Department of Education is not authorized under our Constitution. What can you, or I, do about it.
You would think we could run to the courts and file a lawsuit to stop the law. It doesn’t work that way.
The “case or controversy” clause of Article III of the Constitution imposes a minimal constitutional standing requirement on all litigants attempting to bring suit in federal court. In order to invoke the court’s jurisdiction, the plaintiff must demonstrate, at an “irreducible minimum,” that: (1) he/she has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant; (2) the injury is fairly traceable to the challenged conduct; and (3) it is likely to be redressed if the requested relief is granted.
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Justice Manual | 35. Standing to Sue | United States Department of Justice, (last visited Nov. 13, 2024)You have not suffered a distinct and palpable injury. You would have paid taxes regardless of the law, and the only injury you, or I can point to is our tax dollars being miss-spent.
Most of the requirements that the DoE places on the state are stated in terms of getting or not getting money.
A few years ago, the school board was hearing a request to raise the price of school meals for students. There was no need to raise the price of the meals. The costs were still covered by what the students were paying.
They were required to raise prices to maintain compliance with a DoE “free lunches” program. Under the program, the schools are allowed to purchase food from the government at a significant savings.
If we had ditched the program, the cost of school meals would have gone up more than what the program required.
The board was forced to raise prices so that they could continue to offer lower priced school meals. You can’t make this stuff up.
Who has standing?
Let’s say that on day one, Trump uses Obama’s pen and phone methodology and shuts down the Department of Education. The DoE answers to the executive. He decides how the laws are enforced and carried out.
You are no longer having your money taken to give to failing schools, that will never succeed. You don’t get to keep any more of your money, that’s still going to be taken away.
But somebody is now being injured. All the people who are no longer getting the beautiful DoE money have been injured by the executive order.
This means that they have standing to file a lawsuit in federal court.
Which means the government can now argue that the DoE violates the Constitution. The plaintiffs (people wanting money from the federal government), have to argue how the Constitution authorizes the transfer of wealth to them.
Reading the plain text of the Constitution and the 14th Amendment, we can see that education is not mentioned in the Constitution, as amended.
At the first step, the plaintiffs lose. If we presume, without finding, that it is constitutionally authorized, the plaintiffs need to show a match to this Nation’s historical tradition of education regulations.
That fails as well.
In the question of Anchor Babies, the same is true. As soon as Trump says “no more anchor babies”, somebody will sue. Then it can go through the court system. During that process, they will find that the Supreme Court has already decided the question of Anchor Babies with —United States V. Wong Kim Ark, 169 U.S. 649 (1898)
That decision was placed upon the grounds, that the meaning of those words was, “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;” that by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce, not only “with foreign nations,” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes, and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will, without the action or assent of the United States; and that they were never deemed citizens, except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and, therefore, that “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more `born in the United States, and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.” And it was observed that the language used, in defining citizenship, in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 112 U.S. 99-103.
—id. at 680–81
In other words, if the child is not subject to the jurisdiction of the United States, it is not a citizen of the United States. Welping your child on American soil does not make your child a citizen of the United States.
Life is going to get interesting, in a good way.
