Time for Some Preemptive Lawfare of Our Own

Promoted from the diaries by streiff. Promotion does not imply endorsement.

In yesterday’s article (here) regarding a possible alternative path to using GoFundMe donations to fund a portion of the border wall outside of the Congressional Appropriations process, I mentioned that Medically Retired Airman Brian Kolfage had best be prepared for the leftist onslaught on his project, to ratchet up several levels.

We have seen for a long time now and well before President Trump took the Oath of Office, the leftists using “lawfare” to achieve what they cannot achieve at the ballot box. Starting early on in the Trump administration and continuing today, they have brought this tactic to a much higher level, obstructing, delaying and adding to the cost of government to the taxpayers.

It’s time, perhaps even starting with Kolfage’s project, to take the fight to the enemy. The way we have been doing things hasn’t worked. The biggest reason? We always seem to be on the defensive. We wait for the bad guys to file suit in a friendly (to them) Federal District Court (also known as Judge Shopping). More often than not and whenever possible, that court will reside in the 9th Judicial Circuit—with predictable results; a judgement against the administration and a nation-wide injunction against whatever activity President Trump May be engaged in to better the American People.

President Trump has had this happen multiple times. Each time, he has had to fight all the way up to the Supreme Court. Because we star out on the defense and in unfriendly court territory we almost always lose the first two swings at bat in these cases. This occurs even when President Trump is acting clearly within the letter and intent of the law, such as in the case of banning folks from certain terror supporting countries, which by the way, is clearly supported in Statute..

In most of these cases, the final result after months, even years of (expensive) litigation, has been fore-ordained. SCOTUS inevitably ruled in favor of the President. This is of little comfort because it slows down the implementation of the President’s objectives, which is of course, the point. Although the Left would, like to win “the big one,” at the Supreme Court, they are very happy to use this “lawfare” to obstruct, delay and deter implementation of the Trump agenda by any degree possible, especially those items that most thinking Americans would consider a “no brainer,” such as enforcing our border sovereignty.

As I stated above, we need to take the offensive. We need to use all the tools in the box. One of these is the Declaratory Judgement. A Declaratory Judgement is a legal court finding that is essentially used to prevent or delay litigation. This could be an ideal tool for situations whereby our side is relatively certain of the ultimate outcome at the Supreme Court level, but would like to get “wins,” at the the first two levels thus preventing the dreaded nation-wide injunction and forcing the leftist onto the defensive.

The best opportunity for this lately, might seem to be Retired Airman Kolfage’s GoFundMe effort to privately fund a portion of the border wall. To date he has raised over 20 million dollars in donations. As I mentioned in yesterday’s article, he has formed a non-profit to manage the acquisition of easement on private property along the border and fund sections of wall on those parcels.

This could be our chance to execute some preemptive lawfare of our own. As we know from past experience, as soon as Kolfage’s foundation is able to secure the first easement and puts out the first bidding round for construction, the leftist legal machine will file an injunction—of course in the 9th Circuit with predictable results.

Here is how it might work. As soon as Kolfage has one American, Texas-Mexico border landowner who has indicated he would sell or give easement for barrier construction, his organization should immediately file for a Declaratory Judgement in a preselected District Court in the 5th Judicial Circuit (Texas). Assuming a win there, in order to respond the leftists would have to respond in a friendly (to our side) 5th Circuit Court, a court unlikely to issue an injunction/Stop Work order.

Even if the leftists continue their appeal to the Supreme Court, we will have denied them their main objective, to delay construction. Their two biggest fears are first, American Citizens demonstrating they don’t need the Federal government for everything and second, President Trump, during to the run up to 2020, appearing multiple times on camera as the surveyors complete their work, the foundation is laid, work on the actual barriers begin and finally, like the builder is, doing public ribbon cuttings to great fanfare as sections of this part of the wall are completed.