Category Archives: Courts

It Doesn’t Get Any Clearer

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A portion of oral argument in Moms for Liberty and Young America’s Foundation, et al v US Department of Education was relayed to Southeastern Legal Foundation Executive Director Kim Hermann while she was at a Heritage Foundation conference centered on addressing the Biden administration’s general penchant for putting boys into girls’ locker rooms and sports prioritize[ing] gender identity over sex in a broad range of milieus. That portion:

The judge allegedly asked a Justice Department lawyer to explain what expertise the Department of Education has on human biology and sexuality that justifies judicial deference to the feds’ new interpretation of “sex.” The DOJ lawyer replied “I guess I’m not sure,” according to Hermann’s colleagues.

What a sweeping indictment of Chevron Deference by the Biden administration defendants in the case.

The Fifth Circuit Issued a Ruling

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Some time ago, recall, Department of Education Secretary Miguel Cardona, with the full and enthusiastic support of Progressive-Democrat President Joe Biden, put into effect a Rule (referred to as Guidance Documents in the court’s ruling) that sought to rewrite Title IX to claim that a child’s, or near-adult college student’s, claim of “self-identified” gender was sufficient to allow a boy or a near-adult male access to girls’ bathrooms, locker rooms, and athletic endeavors as “teammates.”

Texas demurred, and the Fifth Appellate Circuit Court agreed.

Among other things, the court wrote [citations included, emphasis added]:

The Guidance Documents build on previously enjoined guidance issued under President Barack Obama. See Questions and Answers on Title IX and Sexual Violence B-2, 89 Fed. Reg. 33,474 (Apr. 29, 2014) (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity.”); see also 2016 Dear Colleague Letter on Title IX and Transgender Students 2, US Dep’ts of Educ & Justice (May 13, 2016) (informing educational institutions about the new “Title IX obligations regarding transgender students”). This Court enjoined implementation of these prior guidance documents as contrary to law because “the plain meaning of the term sex as used in § 106.33 when it was enacted by [the Department] following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.” Texas v United States, 201 F. Supp. 3d 810, 832–33 (N.D. Tex. 2016) (O’Connor, J.).

And [citation included]

…Defendants maintain that their actions will only be final when they apply these interpretations to particular factual circumstances via enforcement. But a substantive interpretation that will eventually result in investigative and enforcement activities constitutes final agency action even if an application to specific individual cases has yet to occur. Cf. MPP, 597 U.S. at 809 n.7 (noting agreement between the majority and dissenting opinions that final agency action exists when the action results in a final determination of rights or obligations regardless of some contingent future event).

And:

Regarding the first vacatur-versus-remand factor, the Department will not be able to justify its decision to create law that Congress did not pass and that the Supreme Court did not allow.
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Not only are the Guidance Documents contrary to law and in excess of the Department’s authority, but the Department will also not be able to substantiate its decision on remand because there is no possibility that it could correct the fundamental substantive and procedural errors.

Thus, the matter won’t even be sent back to the DoEd for correction: there is no deficiency here that the department is capable of correcting.

And, as bluntly as court rulings get:

Thus, the Court applies this default remedy and VACATES the Guidance Documents on the grounds that the Department enacted a substantive rule that is contrary to law, did so in a manner beyond the scope of its legitimate statutory authority to promulgate it in the first place….

In fine, as the court emphasized at the outset of its ruling,

Having considered the briefing and applicable law, the Court concludes that Defendants cannot regulate state educational institutions in this way without violating federal law.

However, in the end, the ruling applies Texas-wide only; it does not apply to the whole of the 5th Circuit’s jurisdiction. The other States in the circuit—Louisiana and Mississippi—will have to go to the expense of bringing their own suits.

The court’s ruling can be read here.

 

h/t Texas Attorney General, Ken Paxton.

Some Thoughts on the Supreme Court

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The Wall Street Journal has an article regarding claimed internal dissention in the Supreme Court. There are some items within that article that triggered my pea brain.

Justice Sonia Sotomayor, speaking at the Harvard Radcliffe Institute, said she sometimes weeps in her chambers after the conservative majority issues one of its polarizing rulings.

Justice Sotomayor may well weep over the rulings and their nature; emotions can run high. But there’s nothing polarizing over the Court’s decisions to adhere to what our Constitution and a statute actually say, rather than what this or that Justice might wish either to say. Nothing polarizing, that is, except in the fetid imaginations of the Left and of some WSJ news writers.

And this from Daniel Ortiz, a University of Virginia Professor of Law:

There’s a lot of ill will and anger that’s been building up, and now that they are in the crucible, it’s just going to get worse.

A lot of that ill will and anger is borne of the distrust that has developed from the despicable leak of a draft opinion, a leak whose perpetrator has not been identified, and which investigation the Court’s Chief Justice John Roberts apparently has decided not to pursue with any seriousness, using only the Court’s own policing agency, the Marshal of the Supreme Court and her staff, which have no investigatory experience. That much is on the Chief Justice for his decision to not take the leak seriously except rhetorically.

And this:

Democratic lawmakers called on Justice Samuel Alito to recuse himself from those cases after reports that MAGA-associated flags flew from his homes in Virginia and New Jersey. Alito said no, declaring that his impartiality in the cases couldn’t reasonably be questioned—the legal standard—because it was his wife, Martha-Ann Alito, who raised the flags, at times over his objection.

“At times over his objection” is wholly irrelevant here. The Progressive-Democrats’ objections are insults to all women, not just to Ms. Alito, and to husbands everywhere, not just to Justice Alito. Progressive-Democrats are suggesting that the little woman cannot act on her own initiative, but only within the bounds of husbandly…guidance. And husbands don’t respect their wives’ intelligence and independence of action, needing always to…guide…them in all areas. The little woman isn’t the man’s partner in life, but his subordinate. This is the utter contempt the Left has for the rest of us.

Pushed into Buying?

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Hunter Biden’s defense attorneys in his Delaware trial over whether he falsified gun purchasing papers pursuant to purchasing a gun are now claiming that Biden was pushed into buying a lethal weapon.

The defense team also tried to paint gun store employee Gordon Cleveland as a pushy salesman who wanted Hunter to walk out with a firearm that day.
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“A sale is a sale and that was their goal that day,” [lead defense attorney Abbe] Lowell said. “They wanted it done quickly.”

This is so obviously a crock that it seems to me Lowell already is setting up grounds for an incompetent counsel appeal.

Hunter Biden is, and he was at the time, a fully grown, rational human being. He wasn’t even high on drugs at the time he chose to buy the gun, Lowell insists. (That latter business about not being high would seem to be irrelevant, since the presiding judge already has ruled that the prosecution does not need to prove Biden was high at the time of his purchase.)

No one stuck a gun in Biden’s ear and forced him to make the buy. Whether the salesman was a high pressure salesman doesn’t matter. Countless Americans face high pressure salesmen countless times in countless venues, and the vast majority of them aren’t persuaded.

No, Hunter Biden acted on his own initiative to make the purchase. When he crossed the street to enter the gun store in the first place, he already was disposed to buy a gun.

The Trump Conviction

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Manhattan Prosecutor Alvin Bragg campaigned on his explicit promise to get former President Donald Trump (R), not to uphold the law generally. His campaign was to target the man and then find a crime. He did list, though, a broad number of violent crimes that he would not prosecute at all. Now Bragg has gotten his 34 counts of guilty on a case that wouldn’t have been a felony case at all but for his claim that the 34 counts on which Trump was tried were done to cover up another crime.

Here’s what the 6th Amendment to our Constitution says on criminal trials:

In all criminal prosecutions, the accused shall enjoy the right…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor….

Here are some tidbits regarding that trial. It’s not an exhaustive list, just a few of the larger, more obvious ones.

Trump’s team was denied by the presiding judge the opportunity to call all of the witnesses they wished to call, including an expert witness who could have explained to the jury the election law that Bragg’s team made a key part of its case. The judge reserved that explanation for himself, and he testified as an expert in the guise of his jury instructions after both sides had rested their cases.

Trump’s team—and Trump himself—were never informed of the nature and cause of the accusation bringing him to trial. At no time did Bragg’s team say what the covered-up crime was, not in the indictment, not in the charge sheet initiating the trial, not at any time during the trial. Not even the jury’s sheet on which they were to mark their Guilty or Not Guilty verdict for each count indicates what that other crime was.

In the judge’s jury instruction, the judge identified three potential covered-up crimes—not the prosecutor, the judge—that the jury could find was the covered up crime that made the 34 actually charged counts crimes of which they could convict Trump. The judge’s instruction further said the jury did not have to be unanimous in its selection of that covered up crime: they could pick and choose among the list, and so long as one juror chose one (or more) from the list, that would be sufficient to convict.

As far back as 1898, the Supreme Court ruled in Thompson v Utah that

a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.”

The Court’s 1940 ruling in Andres v United States expanded on that:

Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury.

Trump was denied that unanimity.

But this wasn’t a political hit job. Not at all.