Welcome to 2026 - The Year of America 250

 

 Happy New Year 2026

 

 

As we welcome 2026, Best Wishes for the New Year.  This should be an exciting, even disruptive year:  American military and technological leadership is back, and our "America 250 Celebration" begins now.  
 
As for legal predictions, I note that conventional wisdom is that the United States Supreme Court will limit the President's use of tariffs under an "emergency” rationale, but it may not matter because the President has other powers in this regard.  
 
This sounds somewhat likely, but the real answer, of course, is that no one really knows what will happen.  One thing I have learned is that those who appear to know the outcome of litigation beforehand really don't, and that virtually all participants in the legal system underestimate the risks of an adverse outcome.  But looking at this philosophically, if litigants were to accurately gauge the risks of litigation, there would be far less of it and far less work for legal professionals.

 

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Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people

 

Our family wishes you a very merry, peaceful, and spiritually meaningful Christmas and best wishes for 2026.

As The Gospel According to Luke, Chapter Two, tells us:

And, lo, the angel of the Lord came upon them, and the glory of the Lord shone round about them: and they were sore afraid.
And the angel said unto them, 

Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people.

 
We will return to posting after the 12 days of Christmas.

 

 
 

California Supreme Court Update for 2026

 

 

 California Supreme Court 2026

 

With the next year approaching, we should take a look at upcoming issues before the California Supreme Court in 2026.  Upcoming civil cases are summarized at the Supreme Court's website at:

 

https://supreme.courts.ca.gov/sites/default/files/supremecourt/default/2025-12/pendingissues-civil%20-%20121225_0.pdf 

 

What is interesting is the lack of blockbuster cases, at least as opposed to past years.  Of course, there are some issues of consequence, such as an insurance coverage case about insurer liability for water damage when water enters the building following wind damage and occurs during a roof repair. (11640 Woodbridge Condominium Homeowners’ Assn. v. Farmers Ins. Exchange
S290750.)

 

However, the scope of issues before the California Supreme Court pale in comparison to Federal Court cases involving California.  Chief among these is the Department of Justice' challenge to California's Congressional redistricting plan on Constitutional grounds:

 

https://www.justice.gov/opa/media/1417291/dl?inline=&utm_medium=email&utm_source=govdelivery

 

But in California there appear to be no cases of such historic proportion.  Perhaps this is because California is a one-party state.  The Democrat party has the lion's share of influence, it not outright supremacy, in all three branches of government, making it unlikely the state's highest court will be called upon to decide crucial issues.

 

 

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Update - While the First Amendment May Protect Statements Urging Soldiers to Disobey Orders, this Protection May Not Apply to Such Statements Made by Persons in Uniform

 

 

Update to our prior post about the constitutional and statutory definition of "treason"

 

In our prior post we discussed shocking statements by elected members of a particular political party that members of the United States military should  disobey the orders of the President of the United States.  Our conclusion was that the definition of "treason" may be implicated by such statements, but the Constitutional and statutory definition of treason is constrained by the free speech protections of the First Amendment.

 

This article did not take into account the fact that two of the individuals making these statements are potentially subject military law, which does not permit those in uniform the same level of free speech protection as is afforded others.  Let us take the example of two senators. Senator Duckworth is one of the authors of these remarkable statements, is currently a member of the Army reserve and the National Guard.  Senator Kelley is retired military and continues to display his uniform. We thank them for their service made prior to their recent statements.

 

The simple fact is that statements urging our military to ignore the chain of command made by these persons potentially violates military law, notwithstanding the First Amendment.

 

 

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Potential Appellate Issue: The Validity of Judicial or Other Appointments Made by President Biden's "Autopen"

 

 

Does Biden's use of an "autopen" to make judicial appointments comport with Federal statute?

 

The President, with approval from the Senate, has the authority under Article III of the United States Constitution to appoint Judicial Officers "for life."  How this appointment is actually made official by a "seal" upon a "commission" is set forth in Title 5 United States Code section 2902, which reads in part:

 

(a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President. (Emphasis added.)

 

Note that the subsequent subsections make no mention of an autopen or, for that matter, any digital signature.  For example, section 2902(b) provides the seal may be affixed "before" the commision is signed by the President, once again requiring the President sign the commission. The question therefore becomes whether use of an autopen meets the required act, i.e., that the commission related to the appointment be "signed by the President."

Of course, the initial question is whether Biden's inner circle used an autopen for judicial appointments as those around him did in so many other contexts.  However, if even one judicial appointment used an autopen, this becomes a potential appellate issue that may ultimately need to be decided by the United States Supreme Court. 

 

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The Actual Constitutional and Statutory Definition of "Treason"

 

Recently, some members of our favorite political party have made the shocking statement that members of the United States military should potentially disobey the orders of the President of the United States.  The media discussion of these comments have generally avoided actually giving the full definition of treason, not surprising given the media’s customary tactic of avoiding specificity in their reporting.  

So let us review the United States Constitution, which provides a basic definition of treason in the Article providing for our Judiciary:

Article III Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The United States Congress has further defined treason by statute:

United States Code section 2381. Treason

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

This, of course, begs the question of what constitutes “giving. . . aid and comfort” to our “enemies.”  Jane Fonda’s actions in traveling to Hanoi to do the bidding of our military’s enemy, the communist dictatorship in North Vietnam, and attempting to harm the morale of our troops arguably met this definition.  However, she was never prosecuted, and this follows the recent trend of defining the terms “aid and comfort” and “enemies” very narrowly, which may be said to be fitting in a democracy that prizes dissent.  This means, then, that members of Congress are free to defile themselves by attempting to interfere with the chain of command in our military.

 

 

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