Category Archives: Courts

Loopholes

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The usually solid editors over at The Wall Street Journal had a piece last Friday regarding, in their terms, a bizarre loophole for Oklahoma criminals.

It seems that Supreme Court Justice Neil Gorsuch wrote a majority opinion in McGirt v Oklahoma that held that since the Federal government—Congress—has never actually dissolved the nation’s treaty with the Creek Nation, Oklahoma’s

authority to prosecute crimes involving Native American perpetrators and victims has vanished in nearly half of Oklahoma.

Because that’s the expanse of the Creek Nation’s reservation under that treaty.

Their editorial then listed a number of cases that fell out of McGirt that allowed a number of negligent persons and outright criminals get away with their crimes because the events involved Native Americans over whom the State has no jurisdiction to prosecute or no standing to protect.

The editors’ overwrought headline, How to Get Away With Manslaughter, then was bookended with a cynically emotional finale:

The Supreme Court should look these cases in the face. Is this justice, Justice Gorsuch?

The Editors’ ire is justified, but it’s aimed in the wrong direction.

All any Federal judge, Justices included, can do under our Constitution (vis., Art I, Sect 1) and their oaths of office, is to apply the law, including our supreme Law of the Land, as they are written. They cannot, in particular, adjust either, nor can they manufacture from the bench laws that plug loopholes in laws.

The loophole the Editors decry here, as any loophole in any law, can only be plugged statutorily, and only Congress can make law that does so.

The items listed, and many others to come, indeed aggregate into a vast and serious failure to perform. However, the failure is Congress’, and it’s on Congress to correct it. Judges cannot, and especially, Justices cannot.

Some Key Moments

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From the oral arguments regarding the Dobbs v. Jackson Women’s Health case currently before the Supreme Court. And my responses to them. Because you know I don’t lack for hubris.

Perhaps the most famous example of overturned precedent was the 1954 Brown v Board of Education ruling, which reversed Plessy v Ferguson….

Well, there was another, preceding case—the Supreme Court’s ruling on Dred Scott v Sandford, which needed a Civil War to overturn because the Justices on the Taney Court and later lacked the integrity, the morals, the courage to overturn the ruling on their own.

And from CJ Roberts,

If we look at it from today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.

If those rulings were wrongly decided at the outset, of course they should be reversed. Wrong doesn’t become right through the hoariness of age.

If the conditions of those rulings no longer exist, of course they should be reversed. The convenience of the Court isn’t relevant to any of that.

Additionally, Stewart gave Roberts a way out by saying Roberts’ examples are settled.

And,

“What would you say to the argument that has been made many times by people who are pro-choice and pro-life, that the line really doesn’t make any sense—that it is, as Justice Blackman himself described it, arbitrary?” Alito asked Rikelman.
Alito noted that while a woman may still want to terminate a pregnancy after viability, a “fetus has an interest in having a life” both before and after.
Rikelman replied[,] “It is principled because in ordering the interests at stake, the court had to set a line between conception and birth.”

Rikelman evaded Alito’s question. The baby always has an interest—the primary interest in the ordering of interests—in its own life.

Finally,

…a Supreme Court that has undergone enormous changes and currently sits at a 6-3 conservative majority.

No, it doesn’t. At best it sits at a 5-3-1 majority.

Court Deference

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The Supreme Court has before it American Hospital Association v Becerra, which The Wall Street Journal suggests makes a sufficient vehicle for revisiting judicial deference to an Executive Branch agency’s claims about the legitimacy of this or that regulation promulgated by the agency. The specific item is HHS’ Medicare reimbursement rates for outpatient drugs.

The question is far broader than that, however.

Chevron deference and its still extant forebear, Skidmore, need to be overruled, rescinded, and done away with altogether, along with all other moves, even predispositions, to defer. A regulation (or a mandated drug reimbursement rate) is valid or it is not on its merit, not because a government expert says it is.

It’s wholly unacceptable for a coequal branch of our government to subordinate itself to another coequal branch, much less to an unaccountable subordinate formation of that other branch.

Eliminating deference—subordination—and striking rules that exceed the governing statute’s scope, especially on the grounds that the statute was so vague (as Congress has taken to doing) that an Executive Branch agency must, or has the “flexibility” to, write regulations so originating as to be the agency doing its own legislating, would go a long way toward forcing Congress to do its own job rather than wishing it off onto others.

Our Constitution’s Article I, Section 1, should be dispositive here.

Biden-Harris Diktat

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The 5th Circuit has affirmed its stay of OSHA’s mandate that employers must require—be deputiz[ed] their participation in OSHA’s regulatory scheme as the court acknowledged—employee vaccines, testing, or termination, or face deliberately destructive fines for not doing so.

An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.

The appellate court went on:

[T]he Mandate…exposes them [the covered businesses] to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.

And [citation omitted, emphasis added]:

Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
Each of these factors favors a stay here.

Regarding that first criterion, whether the stay applicant is likely to succeed on merit:

[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

And [emphasis in the original]:

The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.

And:

OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.
…
Any argument OSHA may make that COVID-19 is a “new hazard[]” would directly contradict OSHA’s prior representation to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard.”

And [citation omitted, emphasis added]:

It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.
…
Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy, particularly when the “prior policy has engendered serious reliance interests.” OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.

The ruling goes on in similar veins regarding the other three factors of consideration for issuing a stay.

Here is an example of the Progressive-Democrat administration’s penchant for ruling by diktat and its utter disregard for pesky laws, our Constitution, and We the People—our government’s employers—when any of them, or us, become inconvenient to any Progressive-Democrat wish.

Especially in this regard, as the court noted in its assessment of the degree of harm to us individual citizens were a stay of this OSHA rule not granted, is this [citation retained]:

For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time…unquestionably constitutes irreparable injury.” Elrod v Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

The court’s ruling can be read here.

A Second Amendment Case

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The Wall Street Journal‘s editors opined on the New York State Rifle and Pistol Association v Bruen, a gun rights vs gun control case currently before the Supreme Court. That case centers on whether New York State gets to allow or not allow a citizen of New York (and so a citizen of the United States) to carry a firearm outside his home based on a bureaucrat’s personal view of the “need” for the citizen to carry.

In the course of that piece, the Editors exposed their own misunderstanding.

Regular citizens in New York face an almost insuperable bar if they want to bear a firearm for personal defense.

There’s nothing in the 2nd Amendment that authorizes Government to specify any purpose, personal defense or other, for an American to keep and bear Arms:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

On top of that, the 9th and 10th Amendments bar Government from making one up.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

(The courts already have made clear the relationship between this individual right and a Militia.)