OPINION:
“Those who have sown the wind shall reap the whirlwind.” — Hosea 8:7
The federal antipathy to compliance with the Constitution is well known and well documented. Presidents have declared war in contravention of the constitutional command that only Congress may do so. Congress itself has enacted legislation in areas that the drafters of the Constitution reserved to the states — and it has done so using some absurd linguistic contortions.
In one infamous case where the feds sought to regulate the amount of wheat a farmer grew — all of which his wife ground into flour from which she made baked goods that were all consumed by their family — the feds claimed that his wheat field constituted interstate commerce. They made this argument because by eating his own product instead of selling it, he and others similarly situated commercially increased the demand for wheat, and the water that this Ohio farmer used emanated from Pennsylvania; thus, the wheat was part of a continuous interstate movement and so was congressionally regulable. Supreme Court Justice Antonin Scalia called these arguments, which the court accepted, “hogwash.”
There are many of these. As deep into our pocketbooks as is the Federal Reserve, which is the economically disastrous and liberty-crushing central planner of the U.S. economy, and as invasive of personal freedom as is the Patriot Act, which permits one FBI agent to authorize another to search for private data in the custody of a third party, the Supreme Court has never ruled on the constitutionality of either.
Now, one of these chickens is coming home to roost. Here is the backstory.
Last week, two Democrats in Congress who were members of the House Select Committee on Jan. 6 revealed that during and after their tenure on the committee, the Department of Justice obtained their email, text messages and records of cellphone use. The Justice Department did the same to committee investigators and, in one instance, to a minor child of an investigator. This spying on these people by the Justice Department under then-President Donald Trump apparently continued under President Biden until Attorney General Merrick Garland learned of it and put a stop to it.
Nevertheless, the Justice Department refuses to reveal the records of the spying or even the alleged lawful means for doing so. I say allegedly because domestic spying can be a gray area where the actual spying may be legal under laws that Congress enacted but at the same time unconstitutional as violative of the separation of powers and the Fourth Amendment.
Can government behavior be both lawful and unconstitutional at the same time? In a word, yes.
When Congress enacts legislation that enables the executive branch to violate rights protected by the Constitution and the Justice Department follows the legislation, it is knowingly following a law that is unconstitutional in its face. A law is unconstitutional in its face when it permits direct contravention of the Constitution, such as government suppression of speech because of its content or invasion of privacy without a search warrant.
In a series of statutes and amendments known collectively as the Right to Financial Privacy Act, Congress permitted the feds to go to a grand jury and seek a subpoena for banking records without informing the people whose records were sought. Prior to these dreadful laws, if the feds wanted to see your banking records, they would serve a subpoena on your bank and the bank would copy you, and you’d have 10 days to challenge the subpoena before a federal judge.
Frustrated at losing too many of these challenges, the Justice Department under President Ronald Reagan persuaded Congress to change the law so as to prohibit customer notification. Under what legal standard would a grand jury issue a subpoena? Ha. Most will give prosecutors whatever they want.
Fast-forward to the Patriot Act of 2001, and the feds can now bypass even a grand jury and issue a national security letter. That’s Orwellian for one federal agent authorizing another to search through any records held by a lawful custodian — medical, legal, financial, telephonic or computer.
Today, the feds routinely capture every keystroke — even those deleted — on every device in the U.S. and all telephone conversations transmitted on fiber-optic cable. Scalia told me that he knew the Supreme Court was under federal surveillance.
What about Congress?
The Fourth Amendment violations here are obvious. That amendment prohibits searches and seizures without a warrant issued by a judge based on probable cause of crime and specifically describing the place to be searched and the person or thing to be seized.
The courts have long characterized surveillance as a search and the examination of its fruits as a seizure. Was that followed in the case of the Jan. 6 committee surveillance? Certainly not. It is almost inconceivable that there was probable cause for crimes committed by these members of Congress and their investigators since they can communicate with whomever they please.
Moreover, the three branches of government — legislative, executive and judicial — are equal, but each has an area of governance delegated to it. That primacy in the use of delegated powers is called the separation of powers. The powers are separated to prevent any one branch from accumulating too much power.
Thus, when Congress votes to investigate an event, the Justice Department cannot constitutionally interfere with that investigation without violating the separation of powers, unless a judge authorizes it to do so, which did not happen here. Scalia called the separation of powers the sheet anchor of our liberties.
Will members of Congress, all too eager to fund and authorize mass surveillance, think differently now that they are the targets? Don’t hold your breath. The federal spies have dirt on enough of them to ensure their continued spying, oblivious of the Constitution they have all sworn to uphold.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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