Author: Judge John Wilson (ret.)

In a decision with far-ranging repercussions, the United States Supreme Court has decided that the American President is to receive “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.”

For much of the left, their analysis of this opinion stops here.  According to President Biden, “[w]ith [this] decision on presidential immunity…for all practical purposes…there are virtually no limits on what a president can do. This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States.  The only limits will be self-imposed by the president alone.” 

  Then there is the view of Thomas Wolf, the Director of Democracy Initiatives; “In a shocking and lawless opinion, the Supreme Court granted presidents broad protections from criminal prosecution for ‘official acts’ they undertake while in office. This ruling from the Court’s conservative supermajority pulls a new constitutional rule from thin air. And it raises daunting, unjustifiable barriers to criminally prosecuting lawbreaking presidents. Trump is now positioned to renew his push to dismiss the charges against him and evade accountability for the grave crimes he’s accused of committing against our democracy. The Court has left the rule of law in tatters — even as it looks the other way.” 

Even Justice Sotomayor believes this decision to be dangerous.  In her dissent, the “wise Latina” wrote “[t]he President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Strong words.  But is this an accurate analysis of Chief Justice Robert’s opinion in Trump v. United States?

Of course not.  While these overwrought statements may constitute dire warnings of potential Presidential misconduct, there is plenty of guidance provided in the majority opinion for future criminal prosecutions of the President of the United States were he to act in such an illegal fashion.

Chief Justice Roberts sets up a three tiered analysis of Presidential claims of immunity.  The first tier consist of acts that involve the President’s “core constitutional powers” for which “immunity must be absolute.” 

 “Article II of the Constitution vests ‘executive Power’ in ‘a President of the United States of America, ‘” Chief Justice Roberts writes. “The President has duties of ‘unrivaled gravity and breadth’…[when] the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress – either a specific one targeted at the President or a generally applicable one – may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”

What exercise of power does Chief Justice Roberts contemplate as being covered under this form of immunity?  The Court uses an example from Jack Smith’s “January 6” prosecution in Washington DC federal district court (the case under consideration by the Supreme Court); “The indictment alleges that…Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.”

“The[se] allegations… plainly implicate Trump’s ‘conclusive and preclusive’ authority,'” the Chief Justice writes. “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.” Further, “the President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’ – such as the Attorney General – ‘in their most important duties.’”

“The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” the opinion states.  On this basis, “the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

Judge John Wilson’s (ret.) article concludes tomorrow

Illustration: Pixabay

Key branches of the federal government, including the Department of Defense, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency are sounding major warnings about America’s vulnerability to infrastructure attacks, particularly from China.

FBI Director Christopher Wray and national security experts warn that national infrastructure a risks the government of China poses to U.S. national and economic security are “upon us now”—and that U.S. critical infrastructure is a prime target. 

“The PRC [People’s Republic of China] has made it clear that it considers every sector that makes our society run as fair game in its bid to dominate on the world stage, and that its plan is to land low blows against civilian infrastructure to try to induce panic and break America’s will to resist,” Wray notes.

The FBI states that the overall threat from the Chinese Communist Party (CCP) is a hybrid one that involves crime, counterintelligence, and cybersecurity—and which the FBI is countering with resources from all three missional spheres, Wray said.  He emphasized that The threat is partially “driven by the CCP’s aspirations to wealth and power… China wants to seize economic development in the areas most critical to tomorrow’s economy,  even if doing so requires theft. The Chinese government has tried to pilfer intellectual property, technology, and research from nearly every industry in the U.S. economy.”

Wray reports that “the immense size—and expanding nature—of the CCP’s hacking program isn’t just aimed at stealing American intellectual property. “It’s using that mass, those numbers, to give itself the ability to physically wreak havoc on our critical infrastructure at a time of its choosing.” 

The Chinese have  pre-positioned themselves to potentially mount cyber offenses against American energy companies.

The Department of Defense also is issuing warnings about Beijing’s assaults. In May, it released a statement noting that “We know that the People’s Republic of China and Russia are actively targeting U.S. critical infrastructure to be poised to disrupt our society and interfere with DoD’s operations in a crisis.”

The Cybersecurity and Infrastructure Security Agency (CISA)   explains that there are 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.

The  numerous areas vulnerable to attack include Chemical plants, commercial facilities, communications, critical manufacturing, dams, the defense industrial base, and emergency services.

In a bizarre 2022 move, the Biden Administration ended a key anti-espionage program known as the China Initiative, launched by the Trump administration to fight Chinese espionage and intellectual property theft. The move, which furthered the vulnerability of American infrastructure, was condemned in Congress and in think tank reports.

Rep. Andy Biggs (R-Arizona) in a 2023 published editorial complained that Biden also did not respond to an increased Beijing espionage effort based in Cuba. “It has recently been revealed that China has embedded an anti-U.S. espionage facility in the nearby island nation of Cuba. [President Biden] is allowing China to get a surveillance foothold 100 miles off the U.S. coast.”

A Heritage analysis noted that “Chinese espionage and covert influence are likely only to increase as the U.S. government becomes less and less inclined to take bold action in advance of an election. China recruits spies inside the United States…Chinese hackers have penetrated the networks of U.S. critical infrastructure, giving China the ability to cripple power, water, and communications to American military bases in a time of crisis. How has the Biden administration reacted? Last year, despite the realities of the espionage threat, Biden’s Justice Department shut down the China Initiative bowing to pressure from activists who said the initiative was inherently racist and xenophobic.”

Photo: CISA works with sector partners to protect assets from natural disasters, as well as human-caused and technological events. (CISA photo)

“The Motion before the Court challenges the legality of Special Counsel Smith,” Judge Cannon writes. “[The defense challenges Smith’s] appointment under the Appointments Clause, which provides the exclusive means for appointing ‘Officers of the United States’…[t]he Appointments Clause sets as a default rule that all ‘Officers of the United States’ – whether ‘inferior’ or ‘principal’ – must be appointed by the President and confirmed by the Senate…[i]t then goes on to direct that ‘Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.’”

Accepting Smith’s contention that he is an “inferior” officer, appointed by a “Head of Department,” Judge Cannon finds that there is no act of Congress which authorizes either Attorney General Garland to make this appointment or to establish the office of a Special Counsel. The challenge based upon the Appointments Clause “raise[s] the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment…gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith.”

“The bottom line is this,” Judge Cannon states. “The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history…or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.”

Since none of these methods were used to secure the appointment of Jack Smith as Special Counsel, Judge Cannon concludes, as Justice Thomas discussed, Smith’s appointment was illegal, and his actions to date have no legal authority.  Therefore, the indictment he filed against former President Trump in Florida federal court must be dismissed.

Besides Smith’s appeal of Judge Cannon’s decision to the Eleventh Circuit, we can expect Judge Chutkin in Washington DC to take up this issue as she conducts her review of the January 6 indictment.  However, based upon the bias Judge Chutkin has already exhibited against Donald Trump during the sentencing of a series of January 6 Capitol rioters (in which she bemoaned the fact that the person responsible for the riot was not before her to answer for his actions), we can expect Judge Chutkin to find a way to let Smith’s appointment stand.

More likely than not, the DC Court of Appeals will endorse whatever decision Judge Chutkin makes, as they have done in the past.  If the Eleventh Circuit upholds Judge Cannon’s decision, this will set up conflicting opinions between the Circuits. a situation the US Supreme Court usually resolves.  Even if the Eleventh Circuit does not uphold Judge Cannon’s decision, given the interpretation of the Constitution in question here, the Supreme Court is most likely to take up the issue.

We will then see if a majority of the Supreme Court agrees with the opinion expressed by Justice Clarence Thomas.

Judge John Wilson (ret.) served on the bench in NYC

Illustration: Pixabay

As we have discussed, the US Supreme Court recently decided the case of Trump v. United States.  There, in an opinion written by Chief Justice John Roberts, the Court outlined a three tier system to determine when the President acts with absolute immunity, when he acts with presumed immunity, and when he acts in his unofficial capacity and enjoys no immunity. 

Based upon this analytical structure, Jack’s Smith’s January 6 indictment was returned to Washington DC District Court Judge Tanya Chutkin for a review of the indictment, to determine which allegations involve the President’s unofficial acts, and which are entitled to presumptive immunity.

The majority opinion has had other repercussions.  In his opinion, Chief Justice Roberts ruled that Presidential acts that enjoy absolute immunity cannot be used as evidence against that same President in any criminal prosecution.  Based on this language, former President Trump’s attorneys filed a motion with Judge Juan Merchan to dismiss Donald Trump’s New York County conviction, since evidence of actions taken by the President in his official capacity were used against him at trial.

Recently, Judge Aileen Cannon has dismissed the case brought by Jack Smith in Florida federal court (the so-called documents case).   But this dismissal was not based on Chief Justice Roberts’ majority opinion in Trump v. United States.  Instead, Judge Cannon followed the reasoning of Justice Clarence Thomas, stated in his concurring opinion to Trump, to find that Special Prosecutor Jack Smith was never legally appointed to his office, and had no authority to indict or prosecute the former President. 

The reaction of Democrats to the dismissal of the case was predictable. “From ‘breathtakingly misguided’ to ‘unthinkable’, and ‘her audition for a seat on the US supreme court’, judge Aileen Cannon’s ruling…drew a range of outrage and surprise from Democrats and law experts…Among the loudest voices of Democratic protest was Chuck Schumer, the Senate majority leader, who called in a statement for the dismissal of Cannon, a Trump appointee to the federal bench in Florida.”

Naturally, Smith is appealing Judge Cannon’s decision.  But before that appeal is heard, let us review what Justice Thomas discussed and Judge Cannon decided.

“Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts,” Justice Thomas writes. “Fortunately, the Constitution does not permit us to chart such a dangerous course. As the Court [in its majority opinion] forcefully explains, the Framers ‘deemed an energetic executive essential to . . . the security of liberty,’ and our ‘system of separated powers’ accordingly insulates the President from prosecution for his official acts…I write separately to highlight another way in which this prosecution may violate our constitutional structure.”

According to Justice Thomas, “[i]n this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires…[t]he Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause provides: ‘[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department’…[t]he constitutional process for filling an office is plain from this text.”

“[R]elevant here,” Justice Thomas states, “a ‘Hea[d] of Department’ – such as the Attorney General –  is one such actor that Congress may authorize ‘by Law’ to appoint inferior officers without senatorial confirmation…[b]efore the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be ‘established by Law.’”

Justice Thomas continues; “It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office…Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have..[n]one of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.”

Therefore, “the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law.’” Justice Thomas emphasizes that this “is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is ‘the absolutely central guarantee of a just Government’ and the liberty that it secures for us all…[t]here is no prosecution that can justify imperiling it.”

In conclusion, Justice Thomas gave the lower court an assignment;  “[These] questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms.”  To date, Judge Chutkin has not taken up the analysis requested by either Justice Thomas or the majority opinion,  Instead, Judge Cannon in Florida was the first to act.

Judge Wilson’s article concludes tomorrow

Illustration: Pixabay

Joe Biden won’t be running for re-election, but the corruption he engaged in cannot be overlooked. While he will not longer be in office, those who hid his misdeeds, (and, of course, his mental incapacity) including his vice-president who does seek to gain the highest office in the land, may be.

The House Oversight Committee has abundant and clear evidence, including both video and bank records information, disclosing how Joe Biden received $40,000 in laundered China money from the account of his brother, James Biden, and his sister-in-law, Sara Biden, in the form of a personal check.

According to House Committee on Oversight and Accountability Chairman James Comer (R-Ky.)    “ …Remember when Joe Biden told the American people that his son didn’t make money in China? Well, not only did he lie about his son Hunter making money in China, but it also turns out that $40,000 in laundered China money landed in Joe Biden’s bank account in the form of a personal check. And the Oversight Committee has it.

“Here’s how Joe Biden benefited from his family’s shady deal with CEFC, a Chinese Communist Party linked company. It all began with a shakedown in the summer of 2017, when Hunter Biden sent a message to his CEFC associate demanding a $10 million capital payment. As Hunter Biden extorted this associate, Hunter claimed he was sitting with his father and that the Biden network would turn on his associate if he didn’t pony up the money. The extortion scheme worked. Days later, $5,000,000 flowed in from a Chinese affiliate of CEFC. Over the following three weeks, Biden family members made a series of complicated financial transactions to hide the source of the China money.

“Here’s how that happened: First, Northern International Capital, a Chinese company associated with CEFC, wired $5,000,000 to Hudson West III, a joint venture established by Hunter Biden and a CEFC associate. Then, Hudson West III sent $400,000 to an entity owned and controlled by Hunter Biden. Next, Hunter Biden wired $150,000 to Lion Hall Group, a company owned by Joe Biden’s brother James and sister-in-law Sara Biden. Sara Biden then withdrew $50,000 in cash from Lion Hall Group. Later the same day, she deposited it into her and James Biden’s personal checking account. A few days later, Sara Biden cut a check to Joe Biden for $40,000. The memo line of the check said, ‘loan repayment.’”

Corruption involving influence peddling is deadly serious no matter who is buying access, be it a government contractor or a foreign nation.  But China is America’s most powerful adversary. If you examine Biden’s numerous actions benefitting that country, including reducing anti-espionage efforts, allowing surveillance ballons to cross the nation unmolested, looking the other way as military-age Chinese citizens enter the nation, not deterring Beijing’s purchase of land near sensitive military installations, and turning a virtual blind eye to China’s growing presence in Cuba and elsewhere in Latin America,  a very deeply troubling picture emerges.

China is a clear and growing military threat, and it now has the world’s largest army, navy, and soon, air force. Hower, by the end of Biden’s term in the White House, the U.S. Army, Navy, and Air Force will be smaller than when he took the oath of office.

Much of Biden’s “green” policies have directly benefitted China.

Writing for Foreign Policy, Danielle Pletka reported that there is “a pointed effort to romance Chinese officials at the highest levels…As evidence of this reset, look to the Biden administration’s recent rhetorical shift away from using the Trump-era buzzword of “decoupling” the U.S. economy from China to instead focusing on “de-risking” U.S. supply chains; growing pressure on the Pentagon to keep its views on the China threat to itself; and the campaign to paint as extreme the U.S. House of Representatives’ new Select Committee on Strategic Competition between the United States and the Chinese Communist Party…”

Of course, as the presidential election draws near, the Biden-Harris Administration talked tough and imposed sanctions on China.  There is little evidence that the effort will last after election day in a potential Harris White House.

Twenty seconds before the scheduled liftoff in March, Russia aborted its launch of three astronauts to the International Space Station (ISS). Putin’s space program continues to suffer from a number of challenges. For over a decade the Russian program has endured turbulence, funding constraints, a shrinking workforce, and low workforce productivity. The March incident was reported as “…a significant mishap for the Russian space program.” This week a newly-released Foreign Policy Research Institute (FPRI) report examines the Russian government space program in light of President Putin’s announcement that he intends to put a new space station into orbit by 2027.

It may be a challenge beyond what Putin can effectively deliver as Russia is suffering from monetary inflation in the aerospace industry, as well as a devaluation of the ruble. For Putin, however, the military space program is an “at any cost” venture for him. The current environment, according to the FPRI report, notes that there is not only a deficit of financial resources but also limited access to advanced machine tools and space-grade electronics. “These challenges for Russia to focus efforts on the military space activity and leave manned spaceflights and space exploration only to maintain its international status as a space superpower and sense of domestic legitimacy of authoritarian governance without any sustainable outcomes of the civil space activity itself,” says the report.

Wester military analysts are growing more concerned as Russia’s military space program is increasingly asymmetrical. It currently depends on a large number of inexpensive satellites composed of consumer and industrial-grade imported electronic components, and notes, FPRI, “technologies of nuclear power to increase its counter-satellite electronic warfare capabilities.” These satellites have relatively short lives, increasing Russia’s constraints on developing a modern, comprehensive system. This is growing more pronounced since Putin’s 2014 annexation of Crimea and Russia’s invasion of Ukraine. Economic sanctions take time to work. Putin’s space program is experiencing a dearth of components due to the embargo on advanced industrial equipment, limited finances spread across too many major projects, and the general Russian inefficiency within the space industry. Added to the domestic economic challenges, the cancellation of space cooperation with Western partners has made it impossible for Putin to reverse the negative trends.

Russia’s two main priorities for the next decade are to maintain the presence of its astronauts in outer space after the ISS era and even if it is unable to proceed with scientific research and discoveries. Second, according to FPRI, is that Russia must move satellite manufacturing from space-grade electronics to “relatively simple and cheap consumer-grade electronics.” This would be one option for Putin given the preference for quantity over quality. Russia could then afford to quickly replace its short-lived satellites and at the same time develop more advanced communications and intelligence capabilities to support the armed force.

Russia’s Global Navigation Satellite System (GLONASS) is also at risk since the development of new architecture with fewer resources in the sky may make it impossible for Putin to achieve his goal of covering Russia and its neighboring territories. The FPRI report suggest that the armed forces already use consumer-grade GPS and BeiDou trackers, so avoiding the deterioration of GLONASS may not be a top priority. By 2026 Moscow plans to transfer additional federal project funds that are not targeted for other projects to space activities. 

The Russian state space program has two subprograms to improve management of its space endeavors. Putin’s first priority is innovation projects within the space industry, and second, is to ensure implementation of “space activity.” The latter is inclusive of its military program and includes development of the Plesetsk launch site for military orbital launches. Cuts in funding since 2020 indicate that Putin will be unable to achieve his objectives by 2030, despite the lengthening of project timelines.  Originally planned and approved as a $50 billion effort, less than $26 billion in funding has actually been allocated to the space program. This critical underfunding, taken together with other constraints such as the country’s high military casualty rate, may provide the West with the leeway needed to press Russia further to end the war in Ukraine. It may also make Putin a more dangerous opponent of the West should he feel cornered without options.

Daria Novak served in the U.S. State Dept.

Photo: Photo: Backdropped against black space above Earth’s horizon, the International Space Station’s (from left) Zvezda service module, Zarya module, and Unity module are pictured following the undocking of Space Shuttle Atlantis on Sept. 18, 2000, during the STS-106 mission.  (NASA)

Asymmetric tactics may be what Putin next pulls from his bag of tricks. The head of the Defense Intelligence Agency, Lt. Gen. Jeff Kruse, says that Russia “may be learning dangerous lessons from its space mischief,” according to Patrick Tucker of Defense One. During an Aspen Institute talk on Wednesday, Kruse suggested that the West is not standing up strongly to Russia’s increasingly aggressive activities in space and that it must be taught a lesson. A lack of financial and technical resources has not stopped Putin with moving forward with his military space plans.

“Russia [is] actively targeting, through electronic warfare, the lower orbit domain, and, you know, having minimal repercussions… We need to make sure we understand what lessons Russia might be drawing from that. And then how do we want to change the environment so that we understand essentially that there may be repercussions with respect to that?” according to Kruse.

Even more disconcerting is that Russia’s weak performance in its war in Ukraine may force Putin to turn his attention to targeting US and global space communications and navigation assets. Kruse points out that “Their lack of potential superiority drives…asymmetric issues.”

At the same meeting, Gen. Stephen Whiting, the head of the US Space Command pointed out that in response to the increased threat potential from Moscow, the Pentagon is making additional efforts to ensure all US satellites are able to withstand attacks. He described recent Pentagon efforts to make sure that its satellites can withstand attacks and pointed out that the United States’ newest generations of GPS satellites have greater capabilities to withstand intrusions and that “Now we fly with something called M-CODE, which is available to military users. It’s a military-specific satellite that improves our anti-jam capability.”

China, according to Whiting, is a very different type of threat in space. While Russia is targeting space with weapons that could eliminate the satellites of multiple nations, China’s military Space Force is relying on space to build a stronger force to confront the United States in the Pacific. He says that “In the last six years, they’ve tripled the number of intelligence, surveillance and reconnaissance satellites they have on orbit,” Whiting added that China is flying “hundreds and hundreds of satellites—again, purpose-built and designed to find, fix, track, target and, yes, potentially engage us and allied forces across the Indo-Pacific.” Russia is not, however, stopping its attempt to play a more dominant role in militarizing space.

Key Russian Roscosmos executives, according to Pavel Luzin of the Eurasia Daily Monitor, have signed and approved a schedule for deployment of a new Russian orbital station with the next decade. The Kremlin’s target date remains questionable given its expanding problems with a lack of personnel and shortages of scientific, technological, industrial and financial resources. Mounting problems, according to Luzin, may still lead to an indefinite pause in Russia’s military manned space program. Right now it remains a key link to Putin’s designs on the West. The aim of the new space station, according to Moscow, is to survey its Arctic regions, notes Luzin. The key problems for Putin remain financial and technical planning due to the war in Ukraine using scarce resources that might force Moscow to move forward without a permanent crew to carry out tasks. “Understanding Russia’s desire to develop indiscriminate counterspace weapons, including a nuclear anti-satellite capability, means recognizing that one of Russian president Vladimir Putin’s top goals has always been to weaken the stature and influence of the United States,” according to Clayton Swope and Makena Young of the Center for Strategic and International Studies. Space is not a level playing field between the United States and Russia. Moscow views its use differently. The West should be concerned that Putin is either developing or possesses many different counterspace weapons. Given Russia’s economic isolation from the West, Washington has few options to pressure Russia to be more responsible to shut down its military space program.

Daria Novak served in the U.S. State Dept.

If President Biden thinks allowing up to 8,500 people into the country in a single day is “the toughest border enforcement in history,” we can only imagine what he considers an open border.

But the question soon arose – why was this “border bill” even necessary?  Couldn’t the President close the border by Executive Action?

Not according to Joe Biden. “Well, I suggested that,’ Biden told Univision’s Enrique Acevedo when asked about a potential executive order on immigration and border security. ‘We’re examining whether or not I have that power,’ he added…’There’s no guarantee that I have that power all by myself without legislation. And some have suggested I should just go ahead and try it. And if I get shut down by the court, I get shut down by the court. But we’re trying to work that, work through that right now,’ he said of the current state of potential executive action.”

Apparently, someone must have informed President Biden that he continues to have the power to issue an Executive Order regarding the border crisis.  Or did he really forget that he issued an Executive Order on the day of his inauguration that eliminated the border control measures former President Donald Trump had put in place – by Executive Order?

On June 4, 2024 Biden issued “A Proclamation on Securing the Border,” in which the President admitted that “encounter levels [between Border Patrol and illegal immigrants] increased toward the end of 2023, and December 2023 saw the highest level of encounters between ports of entry in history, as increasing numbers of people migrated through the Western Hemisphere.” 

Who does President Biden blame for this crisis?   “The current situation is…the direct result of the Congress’s failure to update an immigration and asylum system that is simply broken – and not equipped to meet current needs…[t]he Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so, is a core cause of this problem.”.  

Just how will this new Executive Order address this problem?  Under Section 1, “[t]he entry of any noncitizen into the United States across the southern border is hereby suspended and limited, subject to section 3 of this proclamation.”  However, under Section 3, the suspension does not apply to a vast group of exceptions, including “any unaccompanied child…any noncitizen who is determined to be a victim of a severe form of trafficking in persons… noncitizens who arrive in the United States at a southwest land border port of entry pursuant to a process the Secretary of Homeland Security determines is appropriate to allow for the safe and orderly entry of noncitizens into the United States…any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter…any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.”

Those are some pretty broad categories, aren’t they?  Notice also this provision of the Proclamation, which is similar to the bill which failed to pass in Congress: “The Secretary of Homeland Security shall monitor the number of daily encounters and…the suspension and limitation on entry pursuant to section 1 of this proclamation shall apply…immediately after the Secretary has made a factual determination that there has been a 7-consecutive-calendar-day average of 2,500 encounters or more…unaccompanied children…shall not be included in calculating the number of encounters.”

In other words, unaccompanied minors, and a variety of other exceptions are exempt from the ban on entry into the United States by illegal aliens; and the Secretary of Homeland Security (that’s Alejandro “the border is secure” Mayorkas) decides he can close the border after 7 days in a row of an average of 2,500 illegal entries (that’s at least 17,500 people, excluding the categories listed above, per week).

Notice further that Secretary Mayorkas has the discretion to act after making a “finding of fact.”  Suppose the Secretary doesn’t make such a finding?  Suppose everyone who enters during a particular week are either unaccompanied children, or people who fit into one or the other of the broad categories of exemptions?

In essence, then, this Executive Order is an end run around Congress – yet another effort to use the emergency powers of the Executive branch of government to seize power and allow illegal immigrants admission into our country, while claiming to restrict their entry.

Of course, there were the usual complaints from immigration activists. For instance, “Amy Fischer, the Director of Refugee and Migrant Rights at Amnesty International USA, said in a statement that Biden’s actions ‘set a dangerous international precedent…It’s deeply disappointing to see President Biden so hellbent on dismantling human rights for people seeking asylum and implementing policies that are plainly illegal under international and refugee law,’ Fischer said.”   Further, the American Civil Liberties Union announced their intention to file a lawsuit against implementation of the order. “’The Biden administration just announced an executive order that will severely restrict people’s legal right to seek asylum, putting tens of thousands of lives at risk,’ the organization posted on the social platform X. ‘This action takes the same approach as the Trump administration’s asylum ban. We will be challenging this order in court,’ it added.” 

Seems there is something for both sides to hate about this Executive action.  But what all Americans should be concerned about is the cavalier approach the Biden Administration takes to the separation of powers mandated by the US Constitution.  Rather than work with Congress to reform immigration law, and enforce border security, the President has fallen back on his oldest habit – using the border crisis to give more power and discretion to his Homeland Security Secretary.

Biden also makes use of another old habit – he lies to us about what he is really do.

Judge John Wilson (ret.) served on the bench in NYC

Photos: Pixabay