Category Archives: rights

Another Reason to Rescind Chevron Defense

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As The Wall Street Journal‘s editors put it in their editorial last Tuesday, nothing is stopping the

Securities and Exchange Commission and prosecutors from finding [regulatory] meaning in statutory penumbras.

Now the SEC is manufacturing a rule based on nothing but the æther in SEC Chairman Gary Gensler’s mind. Gensler has hailed into court a pharmaceutical company employee for the “insider trading” crime of trading in options on the stock shares of another pharmaceutical company, a company about which the man had no insider information at all. Not a whit.

Gensler, however, in plumbing the depths of his shadowy æther, has claimed to have found something in a penumbra of Federal law and Court decisions regarding insider trading. The man he’s charging knew from an employee-broadcast email from his company’s CEO that his company might be about to be acquired by another company—not the company in which our man did his trading.

Poof—Gensler has waved his hands and conjured an insider trading beef centered on no insider trading information at all. As the WSJ noted,

Federal law doesn’t explicitly ban trading on confidential information. But courts have said that insiders defraud companies by “misappropriating” private information for personal gain.

It’s in the phantasmal penumbra of “private information” that Gensler has conjured his offense: private information in one company (not even that private, it was a company-wide email that revealed the potential for an acquisition of the employee’s company) casts a shadow over other, Gensler-unspecified, companies, and so brings those other companies into the reach of one company’s allegedly private information.

And this, regarding those chimeric penumbras[1] of which too many of our courts still claim to see:

If something is in a penumbral region, it is not in the text.  If it is not in the text, it does not exist ….  If it does not exist, a judge cannot rule on it.  If in the end, all a judge can do after carefully reading the text is go more than a toe’s dip into its shadows for meaning, then he must not go in: he must rule a lack of governing statute or strike the statute for vagueness, and in either event return the matter to the political branches.

And this, from Justices Antonin Scalia and Clarence Thomas, in denying a 2014 cert petition in Whitman v US [emphasis in the original]:

Only the legislature may define crimes and fix punishments. Congress cannot, through ambiguity, effectively leave that function to the courts—much less to the administrative bureaucracy[.]

Now the Supreme Court must overrule the SEC outright, which would be much easier to do were it to also—or already have by the time this case reaches it—rescinded the Chevron Defense foolishness which subordinates, by Constitutional design, the coequal Judiciary not just to the Executive, but to Executive subordinate branches led by political appointees and peopled by unknown and faceless bureaucrats.

[1] Hines, Eric, A Conservative’s View of the American Concept of Law

Wrong Reasons

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Canada’s reigning government, led by the Liberal Party’s [there’s a misnomer] Justin Trudeau, has “delayed” its plan to kill euthanize its mentally ill population.

[H]ealth officials are slow-walking plans to expand the program, stating there are not enough doctors, specifically psychiatrists, in Canada to evaluate mentally ill people who wish to die, according to the announcement made by Health Minister Mark Holland and Justice Minister Arif Virani.

This is the wrong reason for slowing down the march to killing off the inconveniently mentally ill. The goal remains in place.

Holland went on:

The system needs to be ready, and we need to get it right. It’s clear from the conversations we’ve had that the system is not ready, and we need more time.

There is no right way to kill off the mentally ill. Suicide, assisted or otherwise, may or may not be the right answer for those with the mental capacity to decide that for themselves.  Those who are that mentally ill don’t have the capacity to decide, though, and having third parties decide whether a person should live or die is just state-sanctioned execution by reason of those persons being inconvenient for the state to support or to assist the person’s family to support.

So much for Canada’s erstwhile reputation for being…nice.

A Department of Veterans Affairs Fail

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Yet another in an appallingly long list of Veterans Affairs fails.

This time it’s the VA’s conscious decision to deprecate, if not outright ignore, our nation’s veterans and to give priority access to limited resources to illegal aliens instead. Yes, yes, they signed a contract with ICE to do this, but they were not forced to do so. Here’s Senator Marsha Blackburn (R, TN):

We checked this week; it is up to one million claims for healthcare and benefits. As we were doing some oversight work of the VA, we realized that what they were doing was using some of their resources and their money to allow veterans—to approve veterans for community care—and to process claims, or to approve community care, for illegal immigrants, not for veterans, and then also to process claims for illegal immigrants.

And

When you’ve got a backlog of a million veterans that are waiting to get healthcare, and are waiting to get benefit answers, and you find out that money that should be being used to solve their situations is being used for illegal immigrants…it is absolutely maddening[.]

Indeed.

Veteranos Administratio delende est.

Valid Arguments

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Several States’ Attorneys General have filed an amicus brief in a Supreme Court case centered on whether Texas and Florida statutes that limit Big Tech’s ability to censor speech done on their platforms are legitimate. The analogy they draw is one valid argument.

[Summarized by Fox News]: [G]iving Big Tech the ability to moderate or censor users’ content would be like giving cable or telephone companies permission to cut phone lines on speech at their discretion. The AGs note that under federal “must-carry requirements,” those companies are banned from subjugating any speech on their lines.

And:

The Eleventh Circuit concluded social media companies could censor content because they have “historically exercised” power to refuse transmission of disfavored ideas.
But telegraph companies have a much longer history of censorship. Social media is less than two decades old. Congress did not impose must-carry requirements on telegraphs until 1888, 50 years after their invention[.]
Yet it is well recognized today that those must-carry regulations were constitutional—even though this Court declared that telegraph companies are “not common carriers.” History thus provides no basis for dismissing the striking similarities between social media companies and telegraph and telephones by dubbing social-media censorship “editorial judgment[.]”
While the earlier laws applied to telegraphs and telephones, it is no different when the companies carrying other people’s speech are digital rather than analog[.]
The States thus have a paramount interest in urging this Court to affirm that longstanding, historic authority of States to protect freedom of speech and enable representative government by prohibiting dominant communication networks from censoring[.]

There is one more argument that is, IMNSHO opinion, dispositively on point. This is the status of those Big Tech platforms—X (nee Twitter), Meta’s Facebook, and Alphabet’s YouTube, for instance—as public forums. Indeed, some of these platforms have explicitly stated that they intend to be public squares for public discourse, even as they also provide mechanisms for exchanging private correspondence.

The public square is precisely where speech may not be censored except within a very few very narrowly defined boundaries—incitement to riot, explicit threats of violence against particular persons. Whether any Big Tech platform has explicitly styled itself a public square, each of these platforms have grown so large—become so dominant—that each one of them is, de facto, a public square. Their censorship practices must be barred.

A Death Penalty Revival

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Former President Donald Trump (R) revived the use of the death penalty after a hiatus of some duration, and President Joe Biden (D) has moved to deprecate the death penalty anew, even if inconsistently so.

I confess to being conflicted regarding the death penalty. There are some crimes so heinous that they cry out for execution of the criminal. Rape, especially of children, and premeditated murder come to mind for me, along with mass and serial murder.

However, the error rate in getting convictions for these crimes is high enough to give me pause. Some errors are the result of police error in the investigation, police or prosecutorial misconduct in the runup to trial, prosecutorial or judicial error during trial, or prosecutorial misconduct during trial. These instances are very rare, but they happen. Another reason for my reluctance is improving technology. Increasing ability to analyze DNA data—even the basic ability to handle DNA as evidence at all—reveals what becomes erroneous trial and conviction today even when those convictions of yesterday were correctly obtained given the evidence then available.

Thus: it’s easy enough to execute a criminal tomorrow. But if he’s executed today, and tomorrow we learn that he was wrongly convicted, we can’t undo his execution.

It’s maddening, on the other hand, for the survivors of the criminal’s crime to suffer the delays defense attorneys and “liberal” Others throw up to obstruct and delay an execution, and those delays deny justice for those survivors.

One at least partial solution would be to streamline the death penalty appeals process. Require attorneys bringing a case for delay or sentence reduction to something less than execution to present all of their objections in a single case, to include consolidation of all of the several separate lawyer cases into a single, class-action if you will, case. Perhaps, allow a single additional appeal based on truly newly developed evidence.

That won’t address the errors later discerned with improving technology. However, we can’t allow heinous criminals to escape the death penalty on the basis of inherently speculative potential future technology advances.