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I really, really dislike the song Imagine by John Lennon. The lyrics dream of a world with no “heaven,” no “countries,” no “religion,” and no “possession.” No thank you–I like building block of society each very much. A world without property would lead to rampant “hunger,” for it is “greed” that motivates the butcher and baker. I’m sure Justice Scalia agrees.

In remarks in New Orleans the Senior Associate Justice called his colleagues Dreamers who wish they lived in a world with a very different Constitution that the one we have, and make it so.

For instance, he gave the audience a text to reflect upon. He said those old enough to remember Robert F. Kennedy’s 1968 campaign for president might remember these words: “Some men see things as they are and say, ‘Why?’ I dream things that never were and say, ‘Why not?'”

Using that as a framework, Scalia characterized many of his court colleagues as dreamers who see things as they never were–and the U.S. Constitution as it really wasn’t.

The Times-Picayune add this commentary:

It is a lofty sentiment on its surface, Scalia said, but the implications are dark, particularly in the context of the original quote, which comes from a play by George Bernard Shaw.

In the play, Scalia said, the line was spoken by a serpent and addressed to a woman named Eve.

According to Bartelby, the original Shaw quote was slightly different than Kennedy’s version, which was actually first used by JFK before RFK, and later by Ted Kennedy.

AUTHOR: George Bernard Shaw (1856–1950)
QUOTATION: You see things; and you say “Why?” But I dream things that never were; and I say “Why not?”
ATTRIBUTION: GEORGE BERNARD SHAW, Back to Methuselah, act I, Selected Plays with Prefaces, vol. 2, p. 7 (1949). The serpent says these words to Eve.

President John F. Kennedy quoted these words in his address to the Irish Parliament, Dublin, June 28, 1963.—Public Papers of the Presidents of the United States: John F. Kennedy, 1963, p. 537.

Senator Robert F. Kennedy used a similar quotation as a theme of his 1968 campaign for the presidential nomination: “Some men see things as they are and say, why; I dream things that never were and say, why not.” Senator Edward M. Kennedy quoted these words of Robert Kennedy’s in his eulogy for his brother in 1968.—The New York Times, June 9, 1968, p. 56.

 

 

For reasons that aren’t entirely clear, Chief Justice Roberts chose dueling as the theme of his year-end report. Maybe he saw Hamilton on Broadway? (I have tickets for next Sunday!). In his remarks, the Chief wrote:

When Kentucky lawyers are admitted to the bar, they are required, by law, to swear that they have not participated in a duel.

It’s true. Since the early 1800s, Kentucky had a problem with dueling. Henry Clay, who served in Congress from Kentucky, fought in (and won) two duels.

Section 228 of Kentucky’s Constitution (ratified in 1891) imposes an oath on all officers and attorneys in the state to abjure from dueling.

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of …. according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

One state representative tried to change the oath, saying “It perpetuates that image of Kentucky as being backward.” Another state senator disagreed “”It is a part of the history of this great commonwealth, and I don’t think that we ought to make any changes with respect to the reflection of that history.” But the oath is still there.

Last month, Lt. Gov Jenean Hampton took the dueling oath from Chief Justice Minton John D. Minton, Jr. around 9:00 (she cracks up just a little bit):

If you haven’t already, watch Jerry Seinfeld’s very-funny segment with President Obama. Towards the end, around 17:00, the President gets one last pitch in for Obamacare (yes, he refers to it as Obamacare, and not the Affordable Care Act, something he seems to go back and forth on).

Obama: The only problem is I didn’t work in Obamacare. Usually, the only reason I do these things is I like promoting health care.

Seinfeld: If you want to go, go ahead.

Obama: If you don’t want to sully your show…

Seinfeld: I don’t mind, I really don’t mind.

Obama: …with the interest in getting people with no health care singing up, so if heaven forbids something happens to them…

Seinfeld: That’s a great thing, please try Obamacare today.

In 2014, President Obama recorded a segment on “Between Two Ferns” to plug Obamacare.

Seinfeld (or someone) also drove the 1963 Corvette past the Supreme Court.

The overarching theme of the Obama Presidency, and the subtitle title of my third book,“A Constitutional History of the United States: 2009-2016,” is Gridlock and Executive Power. Congress won’t do what the President wants, so the President uses executive action to accomplish what he originally wanted to Congress to do. This theme will be especially poignant in his final year in office, where he controls neither house of Congress, and all eyes are already focused on his replacement. In an email to supporters, Obama recently wrote “I’ve got 12 months left to squeeze every ounce of change I can while I’m still in office. And that’s what I intend to do.”

Multiple media outlets have reported that within the next week, the President will sign a series of executive orders concerning gun control. His rationale for signing them is the same for all of his other executive actions. People want something done, Congress won’t do it, so I can’t sit around doing nothing.

The WSJ reports today:

Facing stiff resistance to gun-control legislation in Congress, Mr. Obama has signaled that he plans to act on his own. The president has directed administration officials to explore any steps he could take on guns without lawmakers’ help, and he said in his weekly address that he would sit down with Ms. Lynch on Monday “to discuss our options.”

“I get too many letters from parents, and teachers, and kids to sit around and do nothing,” Mr. Obama said in the address, which was released Friday morning. …

“We know that we can’t stop every act of violence. But what if we tried to stop even one?” Mr. Obama said. “What if Congress did something—anything—to protect our kids from gun violence?”

Obama said he wants his team to find every conceivable legal authority to justify these actions.

White House spokesman Eric Schultz said Mr. Obama asked his team to “scrub existing legal authorities” and assess actions that could be taken administratively.

“The president has made clear he’s not satisfied with where we are and expects that work to be completed soon,” Mr. Schultz said.

The President used similar language in 2014 to describe his approach to locating legal authorities for his executive action on immigration:

“In the face of that kind of dysfunction, what I can do is scour our authorities to try to make progress.

If our experience with Obama executive branch lawyers tells us anything, with respect to domestic, statutory issues–where Congress could (theoretically) override the President–the authorities stretch as far as they wish.

So what does the President have in mind for this latest batch of executive action?

The Center for American Progress, which has close ties to the White House, released a report in October detailing options for strengthening those regulations and redefining what it means to be engaged in the business of dealing in firearms. Everytown for Gun Safety, the group led by former New York City Mayor Michael Bloomberg, released its own report on this subject in November and made several recommendations to the White House, including urging that a numerical barrier be set for the number of annual sales permissible as an individual seller.

“Under current law, the dividing line between the professional gun sellers and everyone else is unnecessarily vague,” said Ted Alcorn, the research director for Everytown.

The president met in November with Mr. Bloomberg and John Feinblatt, president of Everytown, to discuss potential executive actions Mr. Obama could pursue.

I discussed a letter signed by a number of prominent law professors, including Adam Winkler and others here. My last sentence sums up the issue well enough:

In any event, these sort of 11th-hour executive orders will very likely be tied up in litigation until well after January 20, 2017.  (This is no doubt what gives the White House serious pause). At that time, another President can rescind these orders on his first day in office, and dismiss any pending indictments.