Category Archives: ethics

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.
…
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.

I’ll Decide

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George Stephanopoulos is at it again. In a recent interview with CNN, ABC News anchor George Stephanopoulos (nothing incestuous about news personalities interviewing each other instead of actual news makers—oh, wait…), had this to say about questions that should be asked of former President and current Republican Presidential candidate Donald Trump:

If you can’t pass that fundamental threshold of saying, “yes the last election was not stolen,” two, “I will abide by the results of the next election,” then I think that’s all voters and viewers need to know.

And at that point, unless Stephanopoulus got answers of which he personally approved, he’d terminate the interview.

No. Those are valid questions, certainly. However, this voter and viewer—and average American—will decide for himself what he needs to know. He does not need a news personality to filter his knowledge.

The self-important arrogance of Stephanopoulos is a major reason why it’s not possible to take anything the man produces seriously.

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.

Soft-on-Crime DAs…

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…and citizen’s arrest. I was…triggered, you might say…by an article describing a Connecticut neighborhood that has set up an evolution of the old Neighborhood Watch or New York City’s Guardian Angels groups. The good folks in the neighborhood have set up a “Self Defense Brigade,” a group 40-ish legally armed citizen volunteers, all living in the neighborhood, who do carry and who actively patrol their neighborhood or watch video feeds from drones that the residents have agreed to. Unsurprisingly, crime is way down in their neighborhood, from the Self Defense Brigade’s deterrent factor.

But what if there’s a need for an arrest? What if the brigade doesn’t only see evidence of a crime done, but see a criminal in the act? The cops, when called, will come fairly quickly (I don’t know the urban area’s defund the cops movement, or the level of staffing of the local police department), but in the meantime, the group would need either to track and maintain contact with the perp until the cops arrive, or actively detain the perp until the cops arrive.

That last amounts to a citizen’s arrest, which still is a thing in our nation, even if it has fallen into disuse.

Cop arrest or citizen’s arrest, though, to have useful effect there needs to be a couple of follow-on steps: prosecution and, if the case can be made—the neighborhood group has the evidence—conviction, followed by punishment serious enough to match the crime for which the neighborhood group made its move.

That brings me to the title of my post: DAs who are soft on crime, who have decided they’re not going to prosecute certain classes of crime that they’ve deemed not worth the trouble or not violent enough, without any regard for the damage done the victims of these crimes.

Such DAs, I claim, are not exercising prosecutorial discretion, even though those DAs claim they are. Prosecutorial discretion is a matter of assessing the specifics of a particular case and deciding to prosecute the instance at a lower level than initially charged or to not prosecute the instance at all. This must be done, further, on a case-by-case basis, treating each on de novo. Deciding a priori not to prosecute whole categories of crime has nothing to do with discretion; the DAs doing this are aiding and abetting the class of criminals they’re refusing to prosecute. This would seem to put them beyond the reach of any level of immunity, qualified or blanket, from civil suit, and the criminality of their action leaves them open, or should leave them open, to criminal prosecution.

Which brings me to the opening of my lede: citizen’s arrest. When the neighborhood group—Self Defense Brigade, or Guardian Angels, or an ad hoc collection of individuals—arrests or detains for police arrest a criminal, and the local prosecutor decides that the crime alleged falls within his predetermined class of no prosecution crimes, then it’s time for the neighborhood group, or others aligned with the group, to execute a citizen’s arrest of the DA and force his prosecution. And subsequently, if necessary, move politically against the judge who tosses the case rather than allowing it to go to trial and get him removed from the bench (this step will take some time, since it may involve electing a legislature willing to impeach and convict the judge, but it would be time well spent. If local judges are elected, the time could be as nearby as the next election cycle.)

Especially in cases stemming from citizen’s arrests, the matter should go to a jury, a collection of citizens drawn from the State and district wherein the crime shall have been committed.

There’s one more factor in play here, and that is the DA’s oath of office. With his blanket decision to excuse whole classes of crime, he’s clearly violating his oath. There could be, if a bit more tenuous than the direct criminal prosecution, a case for criminal perjury to be made. At the very least, though, his oath violation is an impeachable event, and aside from that, if he’s an elected official, his removal could be as nearby as the next election cycle.

Domestic Support for Terrorists is Getting out of Hand

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The UAW’s new membership, the California university system’s 48,000 teaching assistants and “academic proletariat,” is striking in open support of anti-Israel protestors (read: pro-Palestinian and Hamas “protestors”).

Never mind that the strike violates the UAW’s no-strike contract with the system—why should a solemn, written commitment be allowed to stand in the way of supporting terrorists? UCLA English grad pupil and UAW local union president Rafael Jaime:

…the union goal is to “maximize chaos and confusion for the employer.”

Nothing to do with arguing for better working conditions, everything to do with supporting those terrorist supporters.

To compound the California system’s problems,

UC faculty have refused to perform the work of their striking assistants….

The WSJ editors speculated that the reason for this is that the faculty support the strike in favor of the terrorist supporters (my characterization of the WSJ‘s “anti-Israel” term), and that’s a plausible speculation. I have another speculation, one that is in addition to rather than in opposition: these professors have gotten too soft and spoiled in their air conditioned offices and requirement to teach only one or two course per semester (or year!), and don’t want to have actually teach to earn their high six-figure and low seven-figure salaries.

At any rate, it seems to my reprobate self, that 48,000 TAs, et al., and those faculty members refusing to step into the TA-missing classrooms and teach have self-identified as no longer wishing to work for the university system.

California’s university system managers should honor their wish and terminate them promptly and with prejudice.

Update: As of this morning (10 Jun 24), a California judge has ordered this strike stopped.