Category Archives: rights

A Couple of Supreme Court Rulings

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The Supreme Court announced its ruling in a case centered on Chevron Defense, and rescinded that precedent [citations omitted].

The only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” is for the Court to leave Chevron behind.

And

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

The Court also announced its ruling, a couple of days prior, in SEC v Jarkesy that the SEC—government regulatory agencies in general—seeking monetary punishments must do so through an Article III court and a jury trial. As summarized in The Wall Street Journal,

The Court’s decision means most complaints by agencies seeking penalties will have to be charged in federal courts, where defendants enjoy more procedural rights including to legal discovery. Agencies also won’t benefit from a home-court advantage. They win nearly every case in their own tribunals, as you might expect.

And, especially decisively, Chief Justice John Roberts, writing for the Court wrote

A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands. Jarkesy and Patriot28 are entitled to a jury trial in an Article III court.

Justice Neil Gorsuch wrote a concurring opinion that expanded on the CJ’s ruling and strengthened it IMNSHO [citation omitted].

The Seventh Amendments jury-trial right does not work alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, or property. The Seventh Amendment guarantees the right to trial by jury. Article III entitles individuals to an independent judge who will preside over that trial. And due process promises any trial will be held in accord with time-honored principles. Taken together, all three provisions vindicate the Constitution’s promise of a “fair trial in a fair tribunal.”

I put these two rulings together in this article because I see considerable synergy between them. No longer are our courts expected to defer to the judgment of Executive Branch regulators.

That means that even—especially—in both criminal and civil trial courts, after Jarkesy now the courts of first recourse for regulators seeking punishments, the judgment of regulators can be only that—judgment/opinion—and regulators’ judgments can carry no more weight than those of any other expert witness either party to the case might call to the stand—and they are just as vulnerable to showings that the expert isn’t all that.

Especially important, regulators must make their case in front of a jury of their accused’s peers.

That’s good for American liberty.

How Many?

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The FBI says it has identified a characteristic common to sites of active shooter shootings.

…open spaces—which include roads, neighborhoods, parks, and outdoor venues—are the places where victims are most likely to be targeted.

There’s one other characteristic, not fully addressed in the FBI’s report, that’s well worth consideration. How many of those locations were defenseless, whether because laws barred firearms from the areas or because the relevant business owner—mall owner or theater owner, for instance—lawfully posted his locale as barring firearms? The report did address this, but only tangentially, with this single remark, captioning a single chart:

Of the 48 incidents in 2023, four involved civilian intervention where a civilian intervened or attempted to intervene, resulting in two civilian casualties.

Across all 48 of the 2023 active shooter events, there were 105 killed, and 139 injured. Subtract off the two casualties where civilians responded in the time frame before the cops could arrive—naively allocating the two to one death and one injury—and that works out to an average of 2-3 deaths per defenseless event and 3-4 injuries per defenseless event.

Clearly armed patrons already on scene reduced the casualty rate by filling the gap between the onset of the event and the arrival of the second first responders. But the wannabe gun controllers would rather sacrifice the Left’s “if it saves one life” mantra in favor of their obsession with disarming all of us.

 

The FBI’s report can be read here.

One More Reason…

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The Environmental Protection Agency is turning more and more into a Progressive-Democratic Party agenda protection agency and less and less devoted to protecting our environment. Recall that the EPA has been busily using some of its Inflation Reduction Act funding allocation to fund an outfit backing anti-Israel protests. It turns out that the EPA is using another tranche of its IRA allocation to fund groups that oppose immigration enforcement. The EPA received $3 billion for Environmental and Climate Justice block grants.

Here’s what the EPA is doing with those dollars:

EPA tapped Fordham University as a grantmaker to distribute $50 million, in collaboration with the New York Immigration Coalition (NYIC) and the New Jersey Alliance for Immigrant Justice (NJAIJ).

Aside from those agencies having nothing to do with climate, as the WSJ‘s editors note (I note, also, that climate is only peripherally related to the EPA’s environment DOC), the NYIC (at the least) sees its immigration role as one of defunding and getting rid of Immigration and Customs Enforcement.

This is just one more reason to abolish the EPA altogether and return its personnel, from Secretary on down to the janitors, to the private sector.

We do need an agency of some sort to protect the environment, but not this one, which is so badly damaged that it cannot be rehabilitated. The replacement needn’t be a huge and sprawling agency devoted to pseudo-science (atmospheric CO2 is more pollutant than plant food?), and so what’s used for the EPA’s budget needn’t be so monstrously huge, either. The difference could even be used to pay down some small part of the debt the Progressive-Democratic Party has been inflicting on our federal government.

This is Why

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Leave aside the minor fact that embryos differentiate into boys and girls in important ways that are irreversible at any time later in life.

This table, which compares some swimming times of American high school boys with those of the world’s adult women, makes plain the utter insanity of letting post-pubescent biological males compete in biological girls’ sports, purely from a simple competitiveness standpoint.

It’s important to note that US high school boys still swim in yards, while the world’s adult women swim in meters. The original table was pulled from Powerline because many commenters emphasized that distance discrepancy.

Here, though, are some of the women’s times converted for distances in yards:

50 meters Freestyle vs 54.7 yards (50m): women’s world record time shortened to 50 yards swum: 21.64 seconds, a nearly 12% difference favoring the boys

100 meters Back vs 109.4 yards: women’s world record time shortened to 100 yards: 52.51 seconds, a nearly 15% difference favoring the boys

400 meters Free Relay vs 437.4 yards: women’s world record time shortened to 400 yards: 3.18 minutes, a nearly 10% difference favoring the boys

As is plain, shortening the women’s swimming distances to match the high school boys’ distances (and assuming the 9%-ish shorter distance would shorten the women’s times only linearly), US high school boys still swim much faster than the adult women of the world.

 

h/t Powerline

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.