Category Archives: law

In Which our Courts are Failing

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The question here is what standard courts should apply in matters of reverse discrimination. The question is laid out in The Wall Street Journal article’s lede:

Amid a MAGA-led backlash to diversity, equity, and inclusion policies, the Supreme Court on Wednesday will consider an issue that has split judges around the country: what do white people and other members of a majority group have to prove to win a claim for reverse discrimination?

(Aside: the newswriters’—Jess Bravin and Erin Mulvaney—irrelevant reference to MAGA illustrates their own and their editor’s political bias.)

The question is expanded in the second paragraph [emphasis added]:

Marlean Ames claims the Ohio state agency where she works denied her a promotion and then demoted her because she is heterosexual, instead giving both her old job and the one she had sought to gay people. A federal appeals court in Cincinnati threw out Ames’s lawsuit, finding that she failed to show the “background circumstances” suggesting the employer was hostile to straight people—a threshold step that wouldn’t have been required had a gay employee claimed discrimination.

As the writers noted shortly after:

The Civil Rights Act of 1964 forbids employment discrimination because of an “individual’s race, color, religion, sex, or national origin….”

Lauren Hartz, DC-located partner in Jenner & Block raised this bit:

We are in disagreement about what groups in American society today are advantaged or disadvantaged[.]

This is a wholly constructed and cynically dragged red herring. The only advantaged groups are those groups of Americans who get favorable treatment from our courts compared to other groups of Americans, and the only disadvantaged groups of Americans are those groups of Americans at whose expense that advantageous treatment comes.

Civil rights groups have raised another irrelevancy:

Many civil-rights groups say the occasional example of reverse discrimination doesn’t change history. Courts, according to a brief filed by the NAACP Legal Defense and Educational Fund, should be able to consider the “realities of this country’s persisting legacy of discrimination.”

The supposedly “occasional” nature of reverse discrimination is no excuse for any amount of that form of discrimination. Neither does it excuse the creation of a new legacy of discrimination for our future.

Thus: how about using the same standard for all cases involving allegations of discrimination?

How about judges and Justices hew to the text of black letter law and to the foundational text of the 14th Amendment of our Constitution?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That’s it in black and white; it’s not that hard to understand and to apply. As a Chief Justice of our Supreme Court said not so long ago, The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

There is no excuse for our court system, nor any judge or Justice within it, applying different standards of adjudication to different groups of Americans. Judges and Justices are violating their oaths of office when they do.

Why Not?

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The press’ “government officials” now say that President Donald Trump (R) is planning to eliminate the US Postal Service’s Board of Governors and fold the USPS into the Department of Commerce. On the other hand, a “White House official” says that’s not so.

For the hyperventilators in the audience, here is the sum and total of what our Constitution says about a postal service. It’s in Article I, Section 8:

[The Congress shall have Power…] To establish Post Offices and Post Roads

Nothing in there about establishing or maintaining a postal service, only the post offices, useful for dropping off and collecting mail and packages for transporting over those post roads—of latter which we have an enormous network of roads over which to carry that mail and those packages, along with extensive railroad and air shipping networks capable of the same. Those post offices are directly analogous, and no more useful than, FedEx and UPS drop-off and pickup offices.

A move to consolidate the USPS into Commerce has the potential of reducing duplicative governance. It also would give those with commerce expertise—to the extent such exists in the Federal government—control over what is, essentially, a commerce enterprise—the movement as shipper of First Class mail and packages as well as intermediary shipper of other shippers’ packages.

Of course, the better move would be to completely privatize the USPS and let it compete with existing shippers for the movement of all mail, including First Class, just as it does now with packages. USPS already has a serious advantage in such competition: a last mile network that reaches every household and business in the nation, which none of its potential competition (with the possible exception of Amazon, for its own exclusive use).

Still, consolidation would be a good start.

Speculative Lawsuits

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A collection of Leftist State Attorneys General led by New York’s Letitia James has filed an amicus brief in an existing suit against the Federal government over President Donald Trump’s (R) move to defund the Consumer Financial Protection Bureau. That might leave American banks without a government watchdog, they claim in their brief.

Furthermore, [t]he AGs didn’t accuse any banks of wrongdoing. These AGs further claim

The absence of a functioning CFPB…creates a regulatory vacuum even greater than what existed before the Great Recession. The very large financial institutions that compete with state-chartered banks will have carte blanche to loosen their regulatory compliance and profit accordingly.

Further, as cited by The Wall Street Journal,

The AGs argued that the administration is creating a regulatory gap that will encourage the largest banks to game the system by taking a more lax approach, while smaller state-chartered banks will still be subject to state supervision.

Might. Will have. And those two possibles in the latter: “will encourage” and “will still be.” These are purely speculative, with no harm being alleged. No actual wrong doing, in so many words, is being alleged. Basing a law suit, or even an amicus, on speculation about an unknown future—however likely plaintiffs might claim that future to be—is anathema in the American legal system. The requirement to allege—credibly—actual harm already done prevents a potful of frivolous, of politically motivated, of purely fee-seeking lawsuits where no harm exists, even where no harm is likely to exist in some nebulous future.

The Leftist AGs’ move is typical of the Left’s and their Progressive-Democratic Party politicians’ lawfare business.

This is yet another reason why it’s so difficult for us average Americans to have nice things in our nation. It’s time to start requiring plaintiffs to pay the defendants for the costs of lawsuits which plaintiffs bring and lose, and to require those providing amicus briefs on the side of plaintiffs to share in paying those costs.

Presidential Authority

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President Donald Trump (R) is moving to reassert a President’s authority over the Executive Branch of our Federal government, lately signing an Executive Order that imposes new White House supervision over so-called independent agencies.

The editors of the WSJ center their support for this on

Article II’s command that the President “take Care that the Laws be faithfully executed.” If Congress has charged such agencies with enforcing laws, then the President should be able to supervise how they do their job.

They’re right as far as they go, but the matter is far more basic than that. The first sentence of Section 1 of our Constitution’s Article II lays out the foundational nature of an American Presidency:

The executive Power shall be vested in a President of the United States of America.

Our Executive Branch is run by a single executive officer, not by a committee of board members, especially not by an executive and a number of other executives operating independently of him and of each other.

This is the unitary executive, as some legal scholars term it. It’s long past time it got restored. Trump is entirely correct in this matter.

Birthright Citizenship for Children of Illegally Imported Slaves

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Jason Riley, Upward Mobility columnist for The Wall Street Journal, in his op-ed last Wednesday has hung his hat on the universality of birthright citizenship on the citizenship granted the children of slaves who were illegally imported, and so as persons were present illegally. In support, he cited the 14th Amendment’s All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States clause and noted, correctly IMNSHO, the centrality of that subject to the jurisdiction thereof phrase to the hook for his hat.

Riley’s claim vis-à-vis those illegally imported slaves’ children is this:

Although the US banned the importation of slaves in 1808, an illegal international slave trade continued for decades. ….
According to the legal scholar Gerald Neuman, by the time the 14th Amendment was ratified, there were tens of thousands of black people in the US who had been brought here illegally. Naturally, some of them later bore children. It thus would seem that for authors of the Citizenship Clause, “subject to the jurisdiction thereof” included the children of parents in the country without authorization.

Therein lies the failure of Riley’s argument. The Trump administration’s argument—and one I’ve made in these pages—is that illegal aliens and birth tourism mothers are not subject to our nation’s jurisdiction because, in the first instance, they’ve placed themselves outside our jurisdiction from the beginning by entering our nation illegally—in direct and deliberate contravention of our jurisdiction’s laws—and in the second instance, withholding themselves from our jurisdiction however legally they may have entered because they have no intention of staying or in any way breaking the bonds of their loyalty, citizenship, or still-accepted jurisdiction of their home nation.

Those illegally imported slaves, on the other hand, on their emancipation actively and consciously accepted the jurisdiction of our nation and our nation’s laws. They accepted and sought American citizenship, whether before or after their children were born.