Tag Archives: courts

“Coy,” Is It?

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The Biden-Harris administration, in its argument for the government’s appeal in the 8th Circuit of a trial court’s rulings in Religious Sisters of Mercy v Azar and Catholic Benefits Association v Azar, steadfastly refused to say whether, in fact, these entities would be subject to government suit were those entities, in fact, to refuse to provide and cover so-called “gender transition” procedures. The case and the government’s “enforcement” vagaries center on

how the Department of Health and Human Services (HHS) and US Equal Employment Opportunity Commission (EEOC) interpret Section 1557 of the Affordable Care Act, which prohibits discrimination by gender identity, and Title VII of the Civil Rights Act in relation to RFRA [Religious Freedom Restoration Act].

Just the News mildly referred to that as the government being coy.

The government’s attorney, Assistant US Attorney Ashley Chung, then went so far as to tacitly threaten the judges:

She warned the judges not to “open the floodgates to premature litigation” based on “uncertainty” over how agencies might respond to new legal interpretations or court rulings.

This is a cynical argument by Chung. The judges won’t be opening floodgates for “premature” litigation. HHS and EEOC already have opened those floodgates with their carefully thought out decision to be “uncertain” in their “interpretation” of Obamacare, Title VII, and associated regulations and to be vague on their enforcement procedures for those.

“Trial” Doesn’t Mean the Same to Progressive-Democrats…

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…as it does to the rest of us. This is in the subtext of Aaron Kliegman’s Just the News piece regarding Progressive-Democrat Congressmen pushing for a revival of their Bivens Act proposal, which would

allow citizens to recover damages for constitutional violations committed against them by federal law enforcement officials.

Kliegman, though, also pointed out another effect of the Act’s simple proposal:

the legislation would incidentally offer a path to civil remedy for those imprisoned without trial for alleged involvement in the January 6 Capitol breach who say they’ve been mistreated by federal authorities to sue.

That’s certainly true, but I suggest that the prisoners held on claimed beefs related to the 6 January riot already have strong Constitutional grounds for dismissal of the charges and denial of qualified immunity against many of the gaolers–the prison warden included.

Most of them are being held without bail and without being actually charged, hence the “claimed beefs.”

They’re being unconstitutionally held on at least three counts:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….

That’s from the 5th Amendment. No indictment or even the convening of a Grand Jury has occurred. That it’s allegedly an infamous crime is amply demonstrated by the number of Progressive-Democrats who are loudly proclaiming the riot to have been an insurrection.

…nor shall be compelled in any criminal case…be deprived of life, liberty, or property, without due process of law….

That’s also from the 5th Amendment. Plainly the prisoners are being denied their liberty without due process; they’re being held for indefinite periods on no charges and no bail opportunity.

…the accused shall enjoy the right to a speedy and public trial….

That’s from the 6th Amendment. This count has two specifications: they aren’t even accused yet, except by those Progressive-Democrats, but not formally in court, and they’ve been denied a speedy and public trial for so long that they cannot ever have a speedy trial.

Plainly, “speedy trial,” or merely “trial,” don’t have the same meaning for Progressive-Democrats that the terms have for us average Americans, for whom they have such contempt.

Those worthies’ pronouncements notwithstanding, the only cure here is the prisoners’ unconditional release with all current proceedings against them dismissed and any future proceedings related to the riot barred from being brought.

Two Mistakes

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The Chevron Deference “rule,” which the Supreme Court coalesced out of the æther in its 37-year-old Chevron v Natural Resources Defense Council ruling, comes up again in this year’s American Hospital Association v Becerra case, which centers on Medicare’s drug reimbursement schedule for hospitals.

The Supremes invented a two-step evaluation of Executive Branch agency rules in that Chevron case:

First, courts are to give effect to the “unambiguously expressed intent of Congress.” Second, if a court finds that the statute is ambiguous…then it is bound to respect any plausible agency interpretation.

The second step contains the two mistakes, a remarkable achievement even for the activist Court that dreamed up the process.

First, if a court finds that the statute is ambiguous, then the court has no other option, under each of our Constitution and the judge’s/Justices’ oaths of office, to strike the statute as unconstitutionally ambiguous. It has no need, it cannot, then reach that second bit.

Second, a court is not at all bound to respect any plausible agency interpretation. Far from it. In evaluating an agency rule or regulation—having found the statute constitutionally clear—any court must, by the Supreme Court’s rule, treat the unambiguously expressed intent of Congress as their limit. From that, a court must evaluate, de novo, the rule or regulation for whether it fits within the clear confines of the statute.

There can be no deference to another branch of government, much less to a subordinate agency of another branch, if judges of the judicial branch are to be faithful to our Constitution’s construction of three coequal branches of government, rather than to, say, the British construction of the judiciary being subordinate to another branch (Parliament in the British construction).

If the Supreme Court is to satisfy its function in AHA, it must rescind, reverse, root out to every jot and tittle Chevron Deference (and all other deferences, vis., Skidmore, City of Arlington v FCC‘s Arlington, etc) and evaluate the Becerra rule on the basis of whether the governing statute truly is unambiguous and if so, then on the fit of Becerra’s rule within that statute.

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.