Justice Is Coming!

the borders. It enforces. All that and much more of Mike Davis later on in this hour of The Josh A. Hammer Show. But for now, I'm wanting to flag your attention. While we're on the topic of the law, while we're on the issue of the courts, a big and I mean big oral argument is happening today Tuesday, January twentieth, at the US Corps Appeals for the Fifth Circuit in New Orleans, Louisiana. I know this court very well. Why

because I clerked on it. Because I clerk for the Honorable Judge James C. Hoo, a Trump nominee to the Fifth Circuit. I was one of Judge hosts First four Law Clerks and the Fifth Circuit, which is historically and still is one of the more conservative constitutionalist originalists appellate courts in all of the federal juiciary. The Fifth Circuit, which covers three states, namely Texas, Louisiana, and Mississippi, they say, are hearing the consolidated oral argument out of two cases

with very similar fat patterns. That's why they've been consolidated out of the states of Louisiana and Texas. Two of the three states that the Fifth covers the basic fat pattern in question is the state of Louisiana and then the state of Texas, which did so just this past year. In their twenty twenty five legislative session, they each passed a law requiring some variation of the Ten Commandments the Ten Commandment to be displayed in classrooms all throughout the state.

Governor Jeff Landry of Louisiana signed that lawn to place in Louisiana in twenty twenty four, two years ago, and then Governor Greg Out of Texas signed a very similar statute into law just last year in twenty twenty five. Now, a lower court judge, a federal district court judge has no doubt you're familiar by now they blocked it. This notion of federal district judge is blocking these laws. We

discussed that at length. That's going to be an evergreen topic for god knows how long here on the show. But in this particular litigation, a federal district judge blocked the Louisiana and Texas laws, respectively from coming into place. Three judges on the Fifth Circuit because normally appeals court sits with three judges, So a three judge panel left

that flawed district court ruling in place. What followed then was the judges of the Fifth Circuit then voting to rehear this case in what is known as en banc fashion, meaning that all of the judges of the Fifth Circuit, which again is one of the more right of center courts in the country, they decided to hear all of them today this case. And sure enough, that is exactly what happened earlier today in New Orleans, Louisiana. Folks, this question gets to the very heart of who we are

as a people. It cuts to the very core of what it means to be part of the rule of law. Of whether American constitutionalism is ethereal, whether it is clouds in the sky, whether it is tethered, whether it's anchored in something deeper, something more transcendental, more natural, more biblical,

more godly. The argument that has been deployed by secularists and leftists for longer than I've been alive to object to public displays of things like the Ten Commandments is they say that is prohibited by so called separation of church and state. The problem, you will, no doubt notice, is that those of you who've read the First Amendment, no, and for those of who don't know, I will inform you know that particular verbiage is actually nowhere to be

found in the First Amendment to the Constitution. The First Ments. The Constitution reads in relevant parts as follows, quote Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Those two clauses, respectively, are typically referred to as the establishment clause and the free exercise clause. The establishing clause is where you have leftists and secularists who say that separation church and state is

codified as a principle, except it isn't. The actual text says Congress shall make no law respecting an establishment of religion. The actual history of the establishing clause, as just as Clarence Thomas has explained in numerous Supreme Court opinions, and as various constitutional law scholars such as Philip Hamburger have explained as well in compelling and paints to makingly detailed the meticulous legal scholarship, the Estallusian clause was actually a

federalism provision. In other words, it says that Congress shall make no law respecting the establishment of religions, that the states can do that, and sure enough they did. By the time of the American founding, many, perhaps most, of the colonies turned into nascent states, had established state churches. Think about it. Maryland was known as a place where Catholics go. Pennsylvania was known as a place where Quakers go,

and on and on. Think about the Commonwealth of Massachusetts, which today is a leftist Bastian Senator Elizabeth Warren and all that Massachusetts had an established church. It was the Congregationalist Church. Well into the nineteenth century. It was eighteen thirty three Massachusetts finally got rid of its established church. You see, America was a pluralistic society. No, it was

not a multicultural society. We'll get into the notion of Somali fraud in Minnesota and what it means for immigration. I'm sure we're against that with the Viceroy Mike Davis coming up shortly. But at the time of the founding America was pluralistic necessarily when it comes to Somali's when it comes to people from the Far East. Now, they're

pluralistic in the confines of the Biblical religions. Within the confines above all Protestantism and to a lesser extent of Judaism and Catholicism, and the various Protestant sects in particular had to make sure that they were able to flourish at a state level, Folks, this is a federalism provision. So where you might ask does the notion of separation of church and state come from, It comes actually from a letter written by Thomas Jefferson when he was President

of United States in eighteen oh two. Jefferson wrote a short, pithy letter two hundred and thirty three words in length, essentially the length of a long tweet, and he sent this letter to the Baptist convention in Danbury, Connecticut. Why

it's actually a political letter. He was trying to make political inroads for his party, the Democratic Republicans of Jefferson and Madison, either trying to make inroads into the New England clergy, which at that time were a political bastion for the opposing party, the Federalist Party of Alexander Hamilton, John Adams, George Washington, and so forth. And it was in this letter, this tweet of sorts, that Jefferson first used the phrase separation of church and state, a wall

of separation, he refers to it. But Jefferson wind no was in the First Amendment. He wasn't even there at the Consortors convention. He was gallavanting off in pre revolutionary France, palling around with the folks who soon will become the Jacobins,

engaging in the Garen and the reign of terror. As William Ranquist persuasively put it in a nineteen eighties case called Jeffrey Tamas, Jarrison is not someone whose thoughts in the First Amendments seemed like particularly persuasive or compelling authority, and the notion of so called separationism, separation church of state, was not actually codified as a matter of Supreme Court case saw as being the effective, if not literal, language

of the Assagian cause. It was not read into the clause until a somewhat obscure nineteen forty seven case called Everson, a case out of New Jersey. In an essay this past summer for the Harvard Journal lam Public Policy, my two co authors and I argued that Eversin must fall because Eversin versus Board of Education. This case that for the very first time read separated church of state as

being incorporated to the states via the fourteenth Amendment. This case was wrongly decided because there's no such thing actually as so called separation. Sure, of course there's free exercise. I'm gonn observant Jew. I care quite a bit actually about the free exercise of religion. But the two religion clauses are complementary. They're not at loggerheads with one another.

You could have various public facing forms of ecumenical geo Christian inheritance, biblical teachings, maxims, and so forth, and also protect private religion. They're not irreconcilable. They actually fit very nicely together articably. Even more importantly, though than the actual black letter law is this? What does it say about a country country like ours founded in the proposition that all men to create equal a Genesis one twenty seven principle.

A country that prints in God we trust on our coinage. A country that founded by religious Christians, whose first president, George Washington wrote so compellingly in his Thanksgiving proclamation that Thanksgiving X this to thank Almighty God. What does it say about a country that has litigated for four to five six however, many decades now the notions to whether the Ten Commandments, the original ten Commandments Moses is setting from SINAI, Thou shall not murder, Thou shall not steal

honor your parents. How do we get to a place where a nation as godly as ours is even debating whether or not a public display of the Ten Commandments violates a reading, or is the case that we hear a misreading of a certain constitutional amendment. It's absolutely grotesque. The case law on this, where it's worth, has been all over the map. There was a case from two thousand and five called Van Orden versus Perry, also out of Texas. The carry there in question is former Governor

Rick Perry there. The fat pattern involved a monument of the Ten Commandments. It's still there today. Actually, go to Austin, Texas, walk the state Capitol grounds. You'll see it. I've seen it many times in person. They're the Ten Commandments.

and hear this case. If it goes the wrong way, perhaps they'll find a way to take it, even if it goes the right way, because we have to make sure that generations hence know that this country stands for Godly values, Biblical values, and that our American Constitution is downstream of the Ten Commandments. Godspeed to the lawyer's argument that proposition in New Roleans today, I'm Josh Hammer. Stay with us to the break. Mike Davis on the other side. Well,

as promise, it's now time for the viceroy. Let's bring on founder and president of the Article three Project, where he's also my colleague. You can check us out at Article three project dot org. It's the one only. Mike Davis, friend of Josh Hammer Show, joins us yet again. Mike, thank you, as always my friend for joining us. There's always no shortage of legal controversies and news the day

happening there. I break it down when I can, but it's always fun to have a comrade in arms to join me in doing so as well.

Tell us about this law and tell us why it is a fit or not a fit. But I think it's a fit for situations exactly like this.

statutory duty. Right, we had an election. We had an

election over immigration. We had two different paps. We had whether we were going to have come Paula Harris continued Joe Biden's path of the mass importation of third world trash into America, including Islamists who do not share our values and violent criminals, gangs MS thirteen, trendy Aragua, or we were going to go down the path that Trump proposed, which was securing our border and excelling illegal aliens starting with the worst of the worst, like Trendea arragua, like

MS thirteen, like these Islamists who want to destroy our country. The American people, we the people, we the sovereign citizens of America, shows Donald Trump's path right. He won three and twelve electoral votes all seven Spring states. The popular vote kept the House, won the Senate. He has a father electfaw mandate to lead, and he is doing that. He is doing the unthinkable. He's doing what he promised American voters he would do by enforcing our immigration laws,

his constitutional and statute forward duty. These Democrat activist pointiffs, attorneys, judges try to sabotage this immigration enforcement through the courts. They largely failed because the Supreme Court has largely stopped them, and now they are trying to sabotage the president on the streets, right, and that is completely unacceptable. You can protest, you can protest immigration enforcement, you can't obstruct it. You certainly cannot be violent. And if you look at the

Insurrection Act, it deals with this specifically. If you are organizing violence to stop the federal government from enforcing federal laws, that is text book insurrection. That is text book seditious conspiracy. That is text book assault on federal law enforcement. That is textbook harboring illegal aliens. That is textbook general conspiracy. And I would say this to these Democrats who are doing this, like Tim Waltz, the governor of Minnesota, Jacob Prye,

the Minneapolis mayor. You could very easily end up in prison, federal prison for these very serious federal crimes like insurrection, seditious conspiracy, assault, kidnapping, harboring, conspiracy, generally other very serious federal felonies. So tread lightly, guys, because I don't think President Trump and Attorney General Pambondi are messing around.

This clearly is a core bread and butter federal prerogative. And I think back in look at the recent lawsuit that was filed by the State of Minnesota and the Twin cities of Minneapolis and Saint Paul against DHSS. The whole Messecurity Department against the federal government generally. And Mike, I was watching Keith Ellison, the adel Brains, you know, you know, care connected attorney General of Minnesota, and he was reading the statements where he was like, it's our

tenth Amendment States rights position. And I was looking at this and I was like, I'm sorry, but I read this in a history book ones and it came under the name of John C. Calhoun. And I've been saying this for years now that this whole notion of these sanctuary jurisdictions, of just trying to not just protest, but

to obstruct and to undermine violate federal law. I mean this reeks of the anti Bellum Confederacy, to which Abraham Lincoln responded, among other things, with you guessed it the Insurrection Act, which he invoked just a few days after the Civil War began. So am I crazy? Or is this how you see it as well?

most violent people on the planets. That's why their nation is failed because there are Somali pirates in warlords and have the IQs of IQs of sixty five to to seventy and we want to mass import them into the United States. And I guess I would say this to the Minnesota liberals. You managed to get duped and defraud its by some of the dumbest people on the planets.

What the hell does that say about you as the people of Minnesota that you allowed this to happen, not just for a few weeks, not just for a few months, you allow this to happen for like twenty five years. You have been defrauded by the Somali warlords and pirates when they're driving around in their range ropers to their mansions and you have homeless US military veterans on your streets.

It's shameful what Minnesota has allowed to happen. And this is why immigration is a federal concern determined by Congress, so we don't have bulcanized American states like Minnesota, they don't get to decide our population. That is, we the people, the sovereign citizens of America, get to decide this. This this idea that we're going to let the Third world

come to Minnesota. We have to pay for it through federal medicaid, through federal grants that are being defrauded in the tune of tens of billions of dollars around the country, particularly in Minnesota. And then they're going to say, Okay, we we have we have We've created loogadishue in Minnesota, in Minneapolis, and if you try to stop the fraud, We're going to have a civil war with you. We're gonna We're going to encourage our law enforcement to arrest

ICE agents, Like are you kidding me? Are you trying to get state and local law enforcement officers killed further unlawful arrest of ICE agents. What what is the endgame for Governor Tim Waltz and may Or Fred They they do they want an armed conflict with the federal governments

so they can protect their fraud and corruption. How many campaign donations are these Somali warlords, pirates and other fraudsters giving to Tim Waltz to Jacob Pray, how many of their friends and allies are on this Somali fraud Peewell. I mean, this is shocking, it's sickening. It shows there's a lot at stake for these guys if they're willing to go to civil war with the federal government to protect these Somali warlords, pirates and other prodstras.

Calhoun style insurrections fashion. Stay with us with the break, folks. Mike Davis again is the founder and president of the ARG three Project. Follow us on the d Article three project dot org. We'll be right back after the break. With much more from the Viceroy himself. That's our friend Mike Davis. Welcome back. We're still joined by Mike Davis, who was the founder and president of the Article three projects. He's the Viceroy. Follow him on x at Mr d

d M I A Mike. Lots of other stuff happening in the legal world as well. When it comes to not not just ice in Minneapolis. I want to get your take on the recent Maduro raid in Venezuela. So this happened, Mike, I keep the Jewish Sabbath, as you know, this happened actually over the Jewish Sabbath, and I throw my phone back on. I had like a million messages like is this legal? How is it legal? How's justified?

And it makes a lot of sense to me. But I think there are a lot of folks, some even on our side on the right, who are struggling to see this for what it is. And to me, there's a lot of debate over the declare war clause and foreign affairs, but it's not a foreign affairs issue actually, properly speaking, it's really a law enforcement operation that happened in Caracas earlier this month, isn't it yeah.

he had the duty. There was an outstanding arrest warrant, and it's the president's job to take care that our laws are faithfully executed. And that is exactly what he did. It's similar to what happened with Noriega and pan of Bob. This was not a war. This was execution of an arrest warrant. And now Ladureau is in Justice Department custody.

He's in the Bureau of Federal Prisons, and you'll go through federal trial with a federal judge and the federal jury and the federal prosecution, and they'll decide his faith.

So this is a big question kind of about Donald Trump's Day one executive order that says that the fourteenth Amendment does not require birthright citizenship for the children of legal aliens. Now, I buy this argument, hook, climent and Sinker. I've been arguing this since I was a law student over over a decade ago. I guess the question for you, Mike. Many can kind of briefly explain what the rationale is, but more than that, I'm curious is this going to succeed.

I think a lot of folks look at the current court and they get very wildly trying to find five votes there. So do you think that that administration has a real chance of winning on this case?

After the Civil War, we had the Thirteenth Amendment to outlast slavery, the fourteenth amend by due process and equal protection to freed male slaves that was extended as women with the nineteenth Amendment of them voting rights under the fifteenth Amendment for the freed male slaves again extended under the nineteenth amendments. As part of the fourteenth Amendment, we had birthright citizenship for the freed slaves, for the children

of the freed slaves. In that Fourteenth Amendment, it talks about persons born in the US subject to the jurisdiction of the United States get birthright citizenship subject to the jurisdiction is the key subject to the jurisdiction means that you're loyal to the United States. The children born in the United States to foreign ambassadors do not have birthright citizenship because they're not subject to the jurisdiction of the United States. They're subject to the jurisdiction of the foreign

country from where they came. Americans Indians were not subject to the jurisdiction of the United States. Congress had to extend birth right citizenship to American Indians through statues. So ask this dispositive question, if American Indians do not have birthright citizenship under the fourteenth Amendment to the Constitution, how the hell would illegal aliens And the answer is clear,

It's easy. They do not right. If Congress wants to give the children of illegal aliens birthright citizenship, Congress can do that through statute like it did for American Indians.

But for this idea that the courts are just going to invent birthright citizenship for twenty million illegal alien aliens children is a It is the It is the biggest violation of our sovereign power, of our sovereign rights as we the people, the sovereign citizens of America that you can imagine that courts just hand out citizenship like this when it's not authorized by LAMB is a grave violation of we the people's sovereign power.

of those who legally are not even here. You know, they you know, they could be officially here, they could have residents, but legally illegal aliens are not actually here. So I have no idea, frankly, how this argument ever got accepted. God willing, the court will do the right thing. At least one final court case I want to get your take on, and that's the big tariff's case. I think a lot of folks are paying very close attention. What's the court going to do when it comes to

Donald Trump's tariffs. The big question here is the perceived disonance between Article one, Section eight congressional power to levy duties impost taxes versus this late nineteen seventy statute for emergency economic powers that the administrations relying upon. How do you see this one breaking up?

which is exactly what you have here. So if the Supreme Court follows precedents, if they follow the Youngstown Steel President President Trump should win. If they don't follow President because they want to be a political activist because it's Trump instead of Biden, you could see you could.

views trade as an economic emergency. So I think that on those grounds he's probably justified as well. Mike Bill could before I let you go again, follows folks at Article three project dot org. What is the number one priority that you would like to convey to this audience when it comes to what we at A three p are pushing right now? What is number one priority? And how can the listeners of viewers get involved.

judicial sabotage while he's in office. The judicial. We're winning in all these fronts again. Now Democrats are turning to violence on the street, so we need to push the Justice Department to start arresting these people for insurrection, for seditious conspiracy, for assault, kidnapping, conspiracy, harboring, many other federal felonies.

And you can go to article three Projects dot org, article number three project dot org take action, donate all of us on social media, and Josh Hammer, you have been a warrior for us for many years, so I really appreciate that all that you do. Congrats. I'm making it big time. Now it's hammer time. It's your prime time hammer time, So congrats on all you do.

the tariff case that Mike and I were discussing. So, the statutory basis that Donald Trump invoked to justify his reciprocal tariffs, which he first introduced in so called Liberation Day at the Rosegarn the White House last April, was this late nineteen seventies era emergency economic statue that comes from the Jimmy Carter presidency, and the argument that his administration has made is that the use of tariffs are in emergency power, that they can be justified here as

an emergency economic use. Mike made a very clever argument. It's really kind of out of a con law one oh one class during law school, which is this case from President Harry Truman in the early nineteen fifties called the steel Seizure case, where in the context of trying to get supplies for the Korean War, President Truman went ahead and, acting on congressionally delegated power that was debated, but acting nominally on that kind of power, went ahead

and seized some steel mass. And the court does have this famous reasoning where they say that the president sometimes acts at the lowest ebb of his power, the highest point. When Congress delegates power, that's when the president acts at its highest point. The real question here is whether or

not this is a clear enough delegation. The folks on the other side say they like to cite Anthony Scalia, who Longo said the Congress does not hide elephants in mouse houls, that when Congress wants to delegate a big thing, for instance, they would argue, like tariffs, then they have to articulate that a little more clearly and crisply. You can't just subsume tariffs into emergency. The other side that argument, as I said to Mike, is that at least for

this president, tariffs really are an emergency. Why. Because Donald Trump is a big mercantilist. He's a big balance of trade guy. You might love that, you might hate that. It might be a hardcore las a fair free trader, which typically means that you don't really care about the balance of trade. So it means that you you support in an export based economy, not an import based economy. So probably you hate you hate tariffs. Doesn't matter because

Donald Trump does not view it that way. Donald Trump views mercantilism bounces of trade as being sound economic theory. Again, I don't really care what you think, telling you how Donald Trum approaches this. So for him, the notion that America runs gargantuan trade deficits, or at least did for years and years and years, decades, decades, a decadees, especially as the post Cold War neoliberal order really took off. He views that as a big problem as dare I say,

an emergency, thereby requiring some sort of emergency power. So to me, that is one of the more compelling arguments why I think the court might uphold the tariffs. But I don't necessarily know that they're gonna do it. I think it's gonna be a very close call. I generally hesitate to make a prediction on the tariff case. We'll see.

I certainly hope though, that Secretary Bessends and the other ECONO policy makers they're in the administration, so they have a backup plan in place when it comes to trying to know what to do with this if the tariff case does indeed go the wrong way and the administration loses, I'm sure they have something in mind. I don't pretend

to know exactly exactly what that is. Perhaps the even broader question, though, which Mike was gonna add towards the end of our conversation, is his notion of judicial sabotage and judicial insurrection. More generally, it's been an issue plaguing

Donald Trump since his very first days in office. During the first Donald Trump term, the very first term, he faced more so called nationwide injunctions than the first forty four presidents combined, somewhere between sixty and seventy by a rough count, and thus far just in the first year. It's now year to the day on the first year to the day of this second administration, depending on how you count, that he's faced just as many, potentially even

more than he faced his entire first term. This is in spite, by the way, in spite of the Supreme Courts fairly clear ruling not crystal clear, but fairly clear ruling last summer in the Casa case, a case that was initially litigated as a birthrights Isn't Your case, but

had its procedure changed throughout the litigation. It became a case about the legitimacy or lack thereof of so called nationwide universal injunctions, and there any Cony Barrett, writing for the Court, wrote pretty clearly that with some very very very very very tiny exceptions dispensations from the rule niche Wie, injunctions are bumpkin their garbage. They offend our constitutional tradition.

Why because the judgment power, the judicial power of which Article three of the Constitutions be speaking in theudiciary is the power of a court to bind the named litigants to a certain lawsuit no one else. And yet they keep on going, don't they? How many so called sweeping injunctions to bind not just the parts of the case.

Have we seen just since the Casta case last June, whether it's Judge Michelle Boardman, Judge Jeb Bosburg, Judge McConnell up in New England, a guy who was trying to hold trumdministrators visuals in contempt a contempt of court last year. The chutzba of these lower courts robes tyrants. Have they

not read Alexander Hamilton in the Federal seventy eight? Have they not read Hamilton explaining explicating quite clearly that the justiciary is quote the least dangerous, the least dangerous of the branches because it has neither force nor will, but merely judgment. Hamilton explains this, I think extremely clearly. Kiashu goes on to say that this is because they depend that to say, the judges depend upon the efficacy of the executive branch even for the enforcement of their own judgment.

In other words, they don't even judges can't even enforce their own judgments to this day, they rely on the US marshals in theory to do that. We are the US marshals institutionally bureaucratically housed. Are they part of Article three the courts? No, they're actually part of articles too, the doja at the executive branch. So to this day Hamilton's warning is true. Another man who ordered a warning

on this, a great man, is Antonin Scalia. We just mentioned a few minutes ago in the context of his famous adage about Congress not hiding elephants and nousols. He was talking there about how to interpret its statutes. Here I want to read for you the final paragraph of Antony Scalia's vociferous descent, as he was known to do.

In the same sex marriage case O Bergfeld versus Hodges, the case that erroneously constitutionalized same sex marriage in twenty fifteen, in a wild naked act of pure judicial usurpation of the ability of the people to define what is and what is not a marriage. Here was antonin Scalia concluding his quite quite amusing and enjoyable descent. Hubris is sometimes defined as overweening pride, and pride we know goes before

a fall. The judiciary is the least dangerous to the federal branches because it has neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm and the States even for the efficacy of its judgments. With each decision of ours that takes from the people a question properly left to them, With each decision that is unabashedly based not on law, but on the reason judgment of a bare majority of this court, we move one step closer to being reminded of our

own impact. I think he had it right with every act of judicial usurpation. Every time that Jeb Bosberg tells a plane to turn around when the plane is transporting legal aliens out of the country, any judge that says stop, you can't end TPS temporary protective status has become an amnancy program for Honduran small these lots of others. That judge is overstepping his or her legitimate boundaries of his

proper Article three federal jurisdiction and beyond the confines. What the jugital power of Article three, Section one, Clause one properly means. The onus at this point is on the Congress and the Executive branch to go even further than they already have to actually remind the courts, as sclea pudd It of their own impotence. Ideally, that requires Congress to act. There's only so much the executive branch can do of its own accord. Congress should start defunding judges.

Chip roy On the House User Committe's been proposing exactly that. When it comes to judges Bosberg Andenbornment, defund them, strip them of jurisdiction, impeach them. There's lots of things you can do. Congress has more power than they care to utilize in this area. It's been one years that's Trump was sworn in, and the audital insurrection, as its gust

of Mike Davis is still raging. One of my wishes for year two, the Trump presidency is to see this digital insurrection quashed, just like the insurrection that's been underway in Minneapolis after the Renee Good shooting. I'm Josh Hammer who hoping that you have enjoyed today's episode of The Josh Hammer Show. Make sure to watch the subscribe wherever you get your podcast, watch us in the Sale news channel. We'll be right back tomorrow.