Military Veterans and Patriots

Tag: SCOTUS

  • Random News and Notes

    Random News and Notes

    SCOTUS granted a writ of certiorari in Fischer v. United States on Friday. That case concerns the J6 charge of corruptly obstructing a congressional proceeding or investigation. That law, 18 USC 1512 (c)(2), is part of the Sarbanes Oxley accounting and corporate governance laws that were passed in response to the Enron/Arthur Anderson investigation. J6 prosecutors have been using that law as part of a charge stacking scheme. It seems however, that they may have overreached. SCOTUS has historically been leery of ambiguously worded laws such as this one. Oral arguments are scheduled for the spring session.

    I feel I need to point out the fact that this case could have a huge bearing on Trumps legal issues in DC. The SCO has built the majority of his case on this law.

    By now I’m sure most of you have heard of the incident with POTATUS motorcade in Delaware yesterday. If you haven’t, well, some dope drove into a Secret Service vehicle blocking an intersection. The Protective detail agents responded by pointing their guns as said dope and arresting him. It seems he was drunk at the time. That, however, is not the focus of this section. The Dotard in Chief was asked a question about losing to Trump in the polls mere moments before the crash.

    There are a couple of things that stand out to me about this incident. First, the protective detail took their sweet assed time getting Biden into the Beast and out of the area. That’s Not Good. I am not and never have been a Secret Service agent, but I do have a LOT of protective detail experience, and in a fluid situation like that, you get your protectee off the X as fast as you can and let the rest of the chips fall where they may.

    Second, according to RCP, there is only one poll, an NPR/Marist poll, that doesn’t have Trump, or any other R, beating Biden. The NPR/Marist poll has Biden up by one point, well within the margin of error.

    The inbred goat f*ckers in Yemen have been acting up of late. The Houthis, an Iran backed and supported rebel group, have been attacking international shipping in the southern Red Sea and Bab el Mandeb strait. The attacks have, so far anyway, consisted of attempted boardings, ballistic missiles and drones. They managed to sink one vessel and have damaged several more. Several shipping lines, including the world’s largest, MSC, have rerouted their ships.

    About 10 percent of the world’s sea traffic goes through the Red Sea. Rerouting ships around the Cape of Good Hope lengthens the trip by about twelve days, adding considerable cost to freight and disrupting supply chains. Maritime insurance rates started to increase after the first few attacks. They are now triple the rate from the beginning of October.

    SecDef Lloyd is expected to announce a coalition naval task force to protect the shipping lanes in the Red Sea and Bab el Mandeb. From my perspective, unless and until the Houthis get to the Find Out part of the equation, nothing is going to change.

    Despite the headlines you may have read, the Pope did not give the OK to blessing same-sex marriages. Look, I’m nominally a Catholic, and I dislike what Bergoglio is doing to the Church as much as anyone else, but even for him it would be a step too far.

    The reality is a bit more prosaic. The ok was given to spontaneous blessings. They are limited to “the invocation of a blessing that descends from God upon those who recognizing themselves to be destitute and in need of his help do not claim a legitimation of their own status, but who beg that all that is true, good, and humanly valid in their lives and their relationships be enriched, healed, and elevated by the presence of the Holy Spirit. of those in same-sex relationships.” The Dicastery, a Vatican organization dealing with matters of faith, issued a supplemental clarifying the issue.

    It seems to me, a layman, that the Dicastery is attempting to clean up yet another mess created by Bergoglio.

    A 67 year old woman in Silver Cliff CO was attacked by a mule deer (read more about muleys in Walt’s Icons of the West article here.)this past weekend. The small buck, reported to be a spike buck, punctured the woman’s lung and caused severe bruising on her legs. Colorado wildlife officials are searching for the buck and plan on euthanizing it when they do find it. They believe this particular deer had been fed by humans and habituated to them.

    There are a couple of lessons in this story. First, all wildlife can be dangerous. Treat them with the respect they deserve. Second, it isn’t good to feed most wild animals. As one NYSDEC biologist once told me, a fed bear is a dead bear. the same can be said of many other species.

    Got a news item to share? Thoughts about any of the stories above? Drop them in the comments below.

  • 3 Supreme Court Cases…

    3 Supreme Court Cases…

    We are less than a month from the fall session for SCOTUS and there are three cases relating to how the administrative system is running our lives.

    3 Supreme Court Cases Could Shake Up the Administrative State

    Jack Fitzhenry  / GianCarlo Canaparo  / dailysignal.com

    The major theme of the coming Supreme Court term is administrative law. Once obscure, this body of statutes, rules, and cases governing the structure and conduct of the federal government’s administrative agencies gained public attention through recent eye-catching cases—like the ones that downed the student loan cancellation plan and set aside the clean power plan that would have shifted the nation’s power grid to all renewable energy sources.

    Now, three cases on the fall docket could reshape the foundations of the administrative state and the power the unelected bureaucracy has over the American people and the economy: Loper Bright Enterprises v. Raimondo, Securities Exchange Commission v. Jarkesy, and Consumer Financial Protection Bureau v. Community Financial Services of America.

    Agency discretion and independence are motifs in all three cases. Obvious as it may sound, agencies are meant to be agents. They do not carry out their own will; rather, they implement Congress’ commands and assist the president in his constitutional duty to faithfully execute Congress’ laws.

    To be effective, an agent needs some flexibility to carry out the principal’s commands. But the greater the latitude, the greater the risk that the agent decides to follow his own agenda over the principal’s. The more that agencies reinterpret laws to make room for their own policy judgments, the more agencies appear to act like judges or legislators, though, under the Constitution, they are neither.

    Loper Bright Enterprises v. Raimondo

    Loper Bright addresses one source of this discretionary dilemma: Chevron deference. That doctrine, named for the 1984 decision that spawned it, requires courts to defer to any “reasonable” agency interpretation of the ambiguities or silences in a law. In practice, Chevron deference enables agencies to often overstep their authority by treating vague language or doubtful gaps in a statute as authorization for actions that the agencies favor but which Congress never intended.

    In Loper Bright, the National Marine Fisheries Service read one such doubtful gap into the Magnuson-Stevens Act and “discovered” a previously unknown power to require small fishing vessels to pay for their federally mandated at-sea monitors who enforce restrictions on methods and amounts of fishing.

    To avoid that crippling financial burden, the fishermen argue that Chevron deference lets agencies steal the courts’ power to say what the law is and Congress’ power to write laws, leaving citizens subject to regulators’ whims. Therefore, they contend that the court should overrule Chevron or drastically constrain its application.

    Even before the fisherman reached the high court, Chevron deference looked significantly diminished. The Supreme Court, despite a steady diet of administrative law cases, had not deferred under Chevron in over six years.

    Increasingly, the Supreme Court has invoked the non-deferential “major questions” doctrine (which requires agencies to identify a clear congressional statement authorizing decisions of substantial political and economic import) to displace Chevron deference in the most significant controversies such as the COVID-19 vaccine mandate, the eviction moratorium during the pandemic, and (to a lesser extent) the administration’s attempt at student loan cancellation.

    But the lower federal courts remain fond of the Chevron doctrine, finding ambiguities in roughly 70% of cases across an array of statutory regimes. The Supreme Court seems poised to limit deference to agencies, but it remains uncertain how far the court will go in Loper Bright.

    Securities and Exchange Commission v. Jarkesy

    Loper Bright will have major implications for citizens fighting administrative agencies in courts, but it won’t have much of an effect if citizens can’t get their cases into courts. Agencies prosecute many of their cases before tribunals within the agencies themselves. There, agency employees called administrative law judges decide those cases in the first instance, and other judge employees hear appeals.

    Jarkesy may limit the use of these in-house tribunals. The Securities and Exchange Commission suspected that George Jarkesy Jr. and his investment advisor committed fraud, and it brought an enforcement action against them before one of its judges. The defendants argued that the in-house tribunal violates their Seventh Amendment right to have a jury trial. That right applies to “suits at common law,” of which fraud is one. So, the defendants argue, the Constitution forbids the SEC from bringing their case to its in-house tribunal.

    They also argued that Congress gave the agency too much discretion to choose whether to bring cases to courts or to administrative law judges. Under a seldom-enforced rule called the nondelegation doctrine, Congress can’t give an agency power without setting “intelligible” limits on how the agency can use it. Here, the defendants argued, Congress set no limits at all on the SEC’s ability to decide where to send its enforcement cases.

    If the defendants win their Seventh Amendment claim, agencies will have to send more of their enforcement cases to federal court. This probably wouldn’t affect that many cases. There aren’t many suits at common law, and most agencies don’t bring them. But for those that do, a win for the defendants would partially dispel the specter of bias that haunts administrative law judges, who rule in their employers’ favor 90% of the time.

    If, on the other hand, the defendants win their nondelegation claim, the future of agency tribunals would be in more doubt. Besides the SEC, would other agency administrative law judges be implicated? Would administrative law judges be off limits to agencies until Congress amends their statutes? If not, when could agencies use them? These are all questions that need answers.

    Together with a decision in Loper Bright that limits Chevron deference, a decision in Jarkesy that limits administrative law judges would be a double blow to agencies that want to act like self-contained legislatures and courts.

    Consumer Financial Protection Bureau v. Community Financial Services Association of America

    While agencies often try to make themselves self-contained governments, sometimes Congress lends them a hand. The Consumer Financial Protection Bureau is the most dramatic example. When Congress created the bureau in 2010, it did everything it could to make sure that the CFPB answered to no one but itself.

    Relevant to this lawsuit, Congress created an unusual funding mechanism for the CFPB. Whereas most agencies receive their money from congressional appropriations, the CFPB gets to take as much money as it wants (subject to a loose cap) directly from the Federal Reserve.

    This makes the CFPB uniquely immune from congressional control. And like the SEC, the CFPB has both rulemaking and law enforcement powers, which can easily be used to advance the CFPB’s own agenda rather than Congress’. Indeed, the CFPB has faced significant criticism for slipping its congressional leash.

    The CFPB’s challengers—businesses subject to the CFPB’s payday lending rule—allege the agency’s funding mechanism violates the Constitution’s appropriations clause. That clause says that no money may be drawn from the Treasury except through congressional appropriations. The challengers argue that the CFPB’s choose-your-own-funding scheme is not an appropriation within the meaning of that clause. The CFPB retorts that the clause is satisfied because Congress created the scheme.

    The challengers have the better argument. The appropriations clause is an indispensable bulwark of the Constitution’s separation of powers that the 111th Congress deliberately sought to avoid when it created the CFPB.

    But lurking in the background of this debate over constitutional meaning is another about practical effects. Other agencies have similar, albeit not identical, funding mechanisms, including the Federal Reserve itself. A ruling against the CFPB might undermine those agencies, too, unless the court can draw a legally salient distinction.

    Regardless, if the CFPB loses, then everything the agency has done since it was created will be vulnerable to constitutional challenge. For the CFPB to continue operating, Congress will have to step in and reattach a leash to the agency it really wanted to set free.

    These three cases remind us how excessive judicial deference coupled with congressional laziness has created our all-powerful administrative state. Loper Bright gives the court an opportunity to fix its mistake, and the other two cases give it an opportunity to wake Congress up with the only thing that might do the trick: a judicial slap in the face.

  • Gorsuch Savages Sotomayor’s Brain-Melting Dissent in the 303 Creative Case

    Gorsuch Savages Sotomayor’s Brain-Melting Dissent in the 303 Creative Case

    Erin Schaff/The New York Times via AP, Pool

     Bonchie | RedState

    Friday, the Supreme Court on Friday delivered another wild ride as several highly-anticipated decisions came down, leaving Democrats reeling.

    As RedState reported, Joe Biden’s clearly illegal student loan scheme was stopped in its tracks by a 6-3 split on the court. That finally put to bed a cynical ploy by the president meant to buy votes before the 2022 mid-terms.

    On the other side was the 303 Creative case, which once again put the future of religious liberty in the United States on the chopping block. In the end, another 6-3 decision won the day, ruling that Lorie Smith (the owner of the company) could not be compelled to violate her religious beliefs by creating websites for gay weddings.

    Not surprisingly, the case originated in Colorado, the same state that has spent somewhere around a decade hassling Jack Phillips, owner of Masterpiece Cakeshop. In 2018, the Supreme Court came to a narrow decision in his favor, though Colorado’s Civil Rights Commission has continued to make his life hell since then.

    In the 303 Creative decision, things were a bit broader, with the court finding that the government could not compel an individual to express a message that violates their sincerely-held religious beliefs.

    The Alliance Defending Freedom, which led the charge, released this statement in response (Townhall).

    “The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the union of husband and wife. Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” Waggoner said. “Lorie works with everyone, including clients who identify as LGBT. As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it.

    The ruling makes clear that nondiscrimination laws remain firmly in place, and that the government has never needed to compel speech to ensure access to goods and services. This is a win for all Americans. The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage. If we desire freedom for ourselves, we must defend it for others.”

    The fun didn’t stop with the overall ruling, though. Justice Neil Gorsuch pulled no punches in reaming Justice Sonia Sotomayor’s ridiculous, confused dissent. He unleashed on Sotomayor’s twisted logic in which she jumps from one side of the issue to the other without even a hint of an interpretative standard.

    https://twitter.com/greg_price11/status/1674784469956567046?

    It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, post, at 7–13, and the strides gay Americans have made towards securing equal justice under law, post, at 14–17. And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?

    That’s a common theme with the liberal justices, with Sotomayor often being the worst offender. Because everything they do is formulated around policy preferences and not an actual interpretation of the law, you end up with arguments being made that don’t even address the actual question at hand in the case. The purpose of the court isn’t to advance “justice” or cement the “strides” of some identity group. It’s to look at the law objectively.

    In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, post, at 27, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include,” post, at 28. But if that is true, what are we even debating?

    Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment. Post, at 21-29, 31-32, 37. Both those cases are not this case.

    Gorsuch’s takedown goes much further than just the above excerpts. He points out several specific points at which Sotomayor contradicts herself or dives off into wild hypotheticals that don’t address the case at hand. It’s a thermonuclear bomb of a critique and one that thoroughly exposes just how rudderless the liberal justices are.

    Original Here

  • More SCOTUS: Biden’s student-loan forgiveness plan is dead, 6-3

    More SCOTUS: Biden’s student-loan forgiveness plan is dead, 6-3

    AP Photo/J. Scott Applewhite, File

    ED MORRISSEY | HotAir

    On their last day of the term, the Supreme Court found unanimity at last — but it didn’t last long. Joe Biden’s student-loan forgiveness plan had two challenges, one from states and another from borrowers. The court dispensed with the latter without dissent on standing.

    However, the challenge from Missouri qualified for standing, and that allowed the court to rule on Biden’s $430 billion self-appropriation. Writing for a 6-3 majority along the usual lines, Chief Justice John Roberts roasted Biden’s attempt to hijack the HEROES Act and usurp Congress’ legislative role in the power of the purse.

    First, though, Roberts gave a clear explanation of Missouri’s standing to challenge:

    Under the Secretary’s plan, roughly half of all federal borrowers would have their loans completely discharged. App. 119. MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees that it otherwise would have earned under its contract with the Department of Education. Brief for Respondents 16. This financial harm is an injury in fact directly traceable to the Secretary’s plan, as both the Government and the dissent concede. See Tr. of Oral Arg. 18; post, at 5 (KAGAN, J., dissenting).

    The plan’s harm to MOHELA is also a harm to Missouri. MOHELA is a “public instrumentality” of the State. Mo. Rev. Stat. §173.360. Missouri established the Authority to perform the “essential public function” of helping Missourians access student loans needed to pay for college. Ibid.; see Todd v. Curators of University of Missouri, 347 Mo. 460, 464, 147 S. W. 2d 1063, 1064 (1941) (“Our constitution recognizes higher education as a governmental function.”). …

    By law and function, MOHELA is an instrumentality of Missouri: It was created by the State to further a public purpose, is governed by state officials and state appointees, reports to the State, and may be dissolved by the State. The Secretary’s plan will cut MOHELA’s revenues, impairing its efforts to aid Missouri college students. This acknowledged harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself.

    As for the HEROES Act argument, Roberts scoffs generally before getting into specifics. First off, the executive branch cannot just rewrite statutes for their own purposes:

    The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.

    The HEROES Act authorizes the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” 20 U. S. C. §1098bb(a)(1). That power has limits. To begin with, statutory permission to “modify” does not authorize “basic and fundamental changes in the scheme” designed by Congress. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225 (1994). Instead, that term carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. See, e.g., Webster’s Third New International Dictionary 1952 (2002) (defining “modify” as “to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the form or structure of [or] alter without transforming”). The legal definition is no different. Black’s Law Dictionary 1203 (11th ed. 2019) (giving the first definition of “modify” as “[t]o make somewhat different; to make small changes to,” and the second as “[t]o make more moderate or less sweeping”). The authority to “modify” statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, not transform them.

    The proposal doesn’t just transform existing provisions, Roberts later writes. It creates an entirely new program, divorced from any statutory authority:

    The Secretary’s new “modifications” of these provisions were not “moderate” or “minor.” Instead, they created a novel and fundamentally different loan forgiveness program. The new program vests authority in the Department of Education to discharge up to $10,000 for every borrower with income below $125,000 and up to $20,000 for every such borrower who has received a Pell Grant. 87 Fed. Reg. 61514. No prior limitation on loan forgiveness is left standing. Instead, every borrower within the specified income cap automatically qualifies for debt cancellation, no matter their circumstances. The Department of Education estimates that the program will cover 98.5% of all borrowers. See Dept. of Ed., White House Fact Sheet: The Biden Administration’s Plan for Student Debt Relief Could Benefit Tens of Millions of Borrowers in All Fifty States (Sept. 20, 2022). From a few narrowly delineated situations specified by Congress, the Secretary has expanded forgiveness to nearly every borrower in the country. …

    The Secretary’s comprehensive debt cancellation plan cannot fairly be called a waiver—it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes “effectively the introduction of a whole new regime.” MCI, 512 U. S., at 234. And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.6

    Roberts also takes issue with Kagan’s accusation in the dissent that this represents an arrogation of authority of the judiciary over the executive branch. Right problem, wrong players, Roberts responds:

    The dissent is correct that this is a case about one branch of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature. The Secretary’s assertion of administrative authority has “conveniently enabled [him] to enact a program” that Congress has chosen not to enact itself. West Virginia, 597 U. S., at ___ (slip op., at 27). Congress is not unaware of the challenges facing student borrowers. “More than 80 student loan forgiveness bills and other student loan legislation” were considered by Congress during its 116th session alone. M. Kantrowitz, Year in Review: Student Loan Forgiveness Legislation, Forbes, Dec. 24, 2020.8 And the discussion is not confined to the halls of Congress. Student loan cancellation “raises questions that are personal and emotionally charged, hitting fundamental issues about the structure of the economy.” J. Stein, Biden Student Debt Plan Fuels Broader Debate Over Forgiving Borrowers, Washington Post, Aug. 31, 2022.

    This entire issue clearly falls under the major-questions doctrine as well, Roberts argued. The scope and the cost of this plan makes that obvious to everyone but the three justices that would have allowed it, apparently. Roberts isn’t terribly impressed with their rebuttal on that point either:

    Aside from reiterating its interpretation of the statute, the dissent offers little to rebut our conclusion that “indicators from our previous major questions cases are present” here. Post, at 15 (BARRETT, J., concurring). The dissent insists that “[s]tudent loans are in the Secretary’s wheelhouse.” Post, at 26 (opinion of KAGAN, J.). But in light of the sweeping and unprecedented impact of the Secretary’s loan forgiveness program, it would seem more accurate to describe the program as being in the “wheelhouse” of the House and Senate Committees on Appropriations. Rather than dispute the extent of that impact, the dissent chooses to mount a frontal assault on what it styles “the Court’s made-up major questions doctrine.” Post, at 29–30. But its attempt to relitigate West Virginia is misplaced. As we explained in that case, while the major questions “label” may be relatively recent, it refers to “an identifiable body of law that has developed over a series of significant cases” spanning decades. West Virginia, 597 U. S., at ___ (slip op., at 20). At any rate, “the issue now is not whether [West Virginia] is correct. The question is whether that case is distinguishable from this one. And it is not.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (KAGAN, J., concurring in part and concurring in judgment) (slip op., at 2).

    Near the end, Roberts explicitly gets to the core of the issue — the constitutional authority of appropriations. I raised this point early and often after Biden’s announcement of this program last year. An executive branch that can cut its own checks in this manner is an executive branch that will eventually become tyrannical and uncontrolled by either Congress or the judiciary.

    Roberts agrees:

    Among Congress’s most important authorities is its control of the purse. U. S. Const., Art. I, §9, cl. 7; see also Office of Personnel Management v. Richmond, 496 U. S. 414, 427 (1990) (the Appropriations Clause is “a most useful and salutary check upon profusion and extravagance” (internal quotation marks omitted)). It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations. As we observed in West Virginia, experience shows that major questions cases “have arisen from all corners of the administrative state,” and administrative action resulting in the conferral of benefits is no exception to that rule. 597 U. S., at ___ (slip op., at 17). In King v. Burwell, 576 U. S. 473 (2015), we declined to defer to the Internal Revenue Service’s interpretation of a healthcare statute, explaining that the provision at issue affected “billions of dollars of spending each year and . . . the price of health insurance for millions of people.” Id., at 485. Because the interpretation of the provision was “a question of deep ‘economic and political significance’ that is central to [the] statutory scheme,” we said, we would not assume that Congress entrusted that task to an agency without a clear statement to that effect. Ibid. (quoting Utility Air, 573 U. S., at 324). That the statute at issue involved government benefits made no difference in King, and it makes no difference here.

    And finally, Roberts ends the majority opinion by rebuking politicians and  commentators for undermining the legitimacy of the court, and abusing respectful dissents to do so:

    It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Today, we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent— old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

    Amen to that. One suspects that this might have been a late and perhaps unanimous addition after the reaction yesterday to the decision to end affirmative action. On the other hand, it might have been inspired by the reaction to Dobbs, or pretty much any decision that didn’t go in favor of progressives.

    As I predicted from the start, the real question here was standing. The Biden administration knew it too, and tried all sorts of manipulations to prevent courts from recognizing the standing of plaintiffs in these challenges. Missouri and MOHELA gave the Supreme Court just enough legitimate standing to put an end to Biden’s usurpation of Article I authority.

    Original Here

  • Clarence Thomas’ Concurring Opinion on Affirmative Action Is Incredible

    Clarence Thomas’ Concurring Opinion on Affirmative Action Is Incredible

    Erin Schaff/The New York Times via AP, Pool

    Spencer Brown | Townhall

    Even though Supreme Court Justice Clarence Thomas joined Chief Justice Roberts in the majority opinion finding that using a student’s race in college admission decision violated the 14th Amendment, Thomas also filed a concurring opinion explaining more of his thinking on the matter. 

    In his usual style, Justice Thomas traces the history of the United States and its citizens’ ongoing efforts to pursue a more perfect union — efforts that haven’t always been smooth and have, at points, failed to move the country forward. Still, Thomas shares his optimism that America will continue to become a better place, all while excoriating the left’s “equity” agenda.

    “The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity,” Thomas writes. “Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race,” he adds. “Only that promise can allow us to look past our differing skin colors.”

    Elsewhere in his concurring opinion, Thomas lays bare the left’s flawed — and quite racist — beliefs about different races.

    “In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Of course, that is false,” Thomas notes. “Members of the same race do not all share the exact same experiences and viewpoints; far from it,” he explains. “A black person from rural Alabama surely has different experiences than a black person from Manhattan or a black first-generation immigrant from Nigeria, in the same way that a white person from rural Vermont has a different perspective than a white person from Houston, Texas.” 

    Despite this obvious reality, Thomas reminds that “universities’ racial policies suggest that racial identity ‘alone constitutes the being of the race or the man.’”

    “That is the same naked racism upon which segregation itself was built,” Thomas rightly concludes. “Small wonder, then, that these policies are leading to increasing racial polarization and friction.”

    Thomas also refuses to hold back on his fellow justices’ flawed views of affirmative action and mistaken interpretation of the Constitution in his opinion. In evaluating the argument made in a dissenting opinion filed by Justice Ketanji Brown Jackson, Thomas brings the fire:

    Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

    Nor do Justice Jackson’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.

    “Justice Jackson’s race-infused world view falls flat at each step,” Thomas declares. “Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them,” he notes. “And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism,” Thomas adds.

    Clocking in at 58 pages, Justice Thomas’ concurring opinion (beginning at page 49 here) ends with a straightforward three-paragraph conclusion:

    The great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy. We should not repeat this mistake merely because we think, as our predecessors thought, that the present arrangements are superior to the Constitution.

    The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes. Those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal. In short, they are plainly—and boldly—unconstitutional. See Brown II, 349 U. S., at 298 (noting that the Brown case one year earlier had “declare[d] the fundamental principle that racial discrimination in public education is unconstitutional”).

    While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.

  • BREAKING:SCOTUS Rejects

    BREAKING:SCOTUS Rejects

    BREAKING: Supreme Court just REJECTED Harvard and UNC race-based admission programs as unconstitutional

    Jun. 29, 2023 10:20 am by The Right Scoop

    The Supreme Court has just ruled that the race-based admission programs of both Harvard and UNC are unconstitutional:

    Here’s more from Fox News:

    The U.S. Supreme Court handed down a major ruling on affirmative action Tuesday, rejecting the use of race as a factor in college admissions as a violation of the 14th Amendment’s Equal Protection Clause.

    Many universities have argued that race-based admissions ensures that student bodies remain diverse, while critics such as the plaintiffs in the cases argue the policy discriminates against many qualified students based on race. 

    Students for Fair Admissions, a student activist group, brought cases against both Harvard and University of North Carolina. The group initially sued Harvard College in 2014 for violating Title VI of the Civil Rights Act, which “prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.”

    The complaint against Harvard alleged that the school’s practices penalized Asian American students, and that they failed to employ race-neutral practices. The North Carolina case raised the issue of whether the university could reject the use of non-race-based practices without showing that they would bring down the school’s academic quality or negatively impact the benefits gained from campus diversity.

    The First Circuit Court of Appeals had ruled in Harvard’s favor, upholding the outcome of a district court bench trial. The district court said that the evidence against Harvard was inconclusive and “the observed discrimination” affected only a small pool of Asian American students. It ruled that SFFA did not have standing in the case.

    Justice Ketanji Brown Jackson recused herself from the Harvard case due to her previous role on Harvard’s Board of Overseers.

    In the UNC case, a federal district court ruled in the school’s favor, saying that its admissions practices withstood strict scrutiny.

    You can read the full opinion below:

    https://docs.google.com/viewerng/viewer?url=https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf&hl=en


    Well past time for these policies to end!!

  • SCOTUS Grants Review of Case That Will Gut the Federal Bureaucracy

    SCOTUS Grants Review of Case That Will Gut the Federal Bureaucracy

    AP Photo/Patrick Semansky

     Bonchie | RedState

    In the biggest news to come out of the Supreme Court of the United States since Roe v. Wade was overturned, the Court has granted a review of Loper Bright Enterprises vs. Raimondo. In its deliberations, the court will deal with the question of whether to overrule the infamous Chevron Doctrine, a ’70s-era precedent that granted broad powers to the bureaucratic state to interpret vague, often narrow statutes with near zero accountability.

    Here’s a quick explainer on the Chevron Doctrine via Cornell Law School.

    One of the most important principles in administrative law, the “Chevron deference” was coined after a landmark case,Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). The Chevron deference is referring to the doctrine of judicial deference given to administrative actions. In Chevron, the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as Congress had not spoken directly to the precise issue at question.

    The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency. Rather, as Justice Stevens wrote in Chevron, when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute.

    In other words, lower courts have been bound by former Justice Stevens’ assertion that “reasonable interpretations” of statutes by administrative agencies are to not be overruled. In this case, the word “reasonable” has been stretched to absolute extremes, and that has allowed the bureaucratic state to reign supreme with near impunity.

    That’s how you get the ATF banning bump stocks despite there being no actual statutory allowance for such a violation of personal freedom. It’s also how you get the lion’s share of environmental regulations, including literal puddles in backyards being hit with ridiculous, costly EPA enforcement. The federal government has been completely out of control for decades, and the Chevron Doctrine has been at the heart of many of the abuses.

    Now, the Supreme Court is poised to overturn the doctrine at some major level. Justice Kentaji Brown Jackson is already recused from the case, meaning that the conservative wing would only need to muster four votes. On that front, most of the conservatives on the court have already signaled a willingness to curb the power of the bureaucratic state by rolling back the Chevron Doctrine.

    So while 2024 presidential candidates all make mostly unenforceable promises to roll back administrative overreach, this coming SCOTUS decision is, by far, the most probable way that actually gets done. The story won’t get weeks of headlines because it’s not sexy, but it’s incredibly important. A rollback of administrative agency power would positively impact American lives more than almost any policy Congress or a president could institute. It would send shockwaves throughout the federal government.

    The left’s bureaucratic fiefdom is facing oblivion, and that’s a very good thing.

    Original Here

  • SCOTUS Overturns Roe and Casey

    SCOTUS Overturns Roe and Casey

    In what was probably the most anticipated case on the Supreme Court docket this term, Dobbs v. Jackson Women’s Health Organization, the Justices ruled there is no Constitutional right to abortion.

    In a 6-3 split, the Court ruled the Mississippi law restricting abortions underpinning the case Constitutional, while a narrower 5-4 split overturned both Roe v Wade (1973) and Planned Parenthood v Casey (1992). The majority opinion was authored by Samuel Alito and joined by Thomas, Gorsuch, Kavanaugh and Barrett. Chief Justice Roberts authored a separate concurrence that upheld the Mississippi law but arguing the court shouldn’t have gone so far as to overturn Roe and Casey. Justices Breyer, Sotomayor and Kagan filed a joint dissent.

    You can read the decision here.

    https://www.scribd.com/document/579588731/Dobbs

    This editor does not have a strong opinion about the topic of abortion, however, he does have strong opinions about Roe v Wade. The ruling was an abomination foisted upon the country by an activist bench. Nowhere in the constitution is there a right to abort an unborn child. The right to do so was made up out of whole cloth and fairy dust. The Court was correct in ignoring stare decis and overturning Roe and by extension Casey.

    The net legal effect of this decision is that abortion law will be returned to the states. Most states have already passed legislation on abortion since the leak of the draft opinion in February.

    There will be other effects. I fully expect there to be violent “protests” this weekend. Terrorists groups like Jane’s List and Ruth Sent Us have already started attacking pregnancy services centers. Look for more and more of that. If you live in a major population center, be prepared for disruptions. Hurry out right now and get your weekend errands done before there is time for these terrorists to organize and the riots, errr, protests to start. And for God’s sake, be safe out there.

  • SCOTUS Announces …

    SCOTUS Announces …

    BREAKING: Supreme Court Announces Massive Second Amendment Ruling

    Spencer Brown for Townhall

    BREAKING: Supreme Court Announces Massive Second Amendment Ruling

    The Supreme Court on Thursday handed down its opinion in a landmark Second Amendment rights case, the biggest win for gun rights since the court’s Heller ruling holding that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”

    The ruling came down 6-3, with Justice Clarence Thomas writing the majority opinion joined by Justices Roberts, Alito, Gorsuch, Kavanaugh, and Barrett — plus concurring opinions by Justice Alito and Justice Kavanaugh. Justices Breyer wrote the dissent joined by Sotomayor, and Kagan.

    Thomas’s opinion explains, in part, that “confining the right to ‘bear’ arms to the home would make little sense given that self-defense is ‘the central component of the [Second Amendment] right itself.’”

    Thomas also writes:

    In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

    Justice Thomas also explained that the Second Amendment doesn’t take a back seat to other God-given rights defined by the Bill of Rights as belonging to the people and not to be infringed upon by the government:

    The constitutional right to bear arms in public for self defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for selfdefense. New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

    In his concurring opinion, Justice Samuel Alito noted that “Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so,” he declared.

    The landmark decision was immediately celebrated by Second Amendment advocates — many of whom pointed out that Thomas’ majority opinion was released on his birthday:

    Within moments, though, the usual leftist pundits on CNN and elsewhere were quick to make clowns of themselves by ignoring what the ruling actually says and launching into nonsense. CNN’s greatest legal mind, Jeffrey Toobin, is a prime example:

  • Justice Thomas on…

    Justice Thomas on…

    Clarence Thomas Nails the Leftist Attitude With His Comments About SCOTUS Leak

    A prior thread  had comments from Chief Justice Roberts while attending 11th Circuit Judicial Conference. 

    Another attendee was Justice Thomas. During the Q&A portion of the event, Justice Thomas had the following to say about any attempts to undermine them;

    As a society, “we are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like. We can’t be an institution that can be bullied into giving you just the outcomes you want. The events from earlier this week are a symptom of that.”

    “We can’t be an institution that can be bullied into giving you just the outcomes you want. The events from earlier this week are a symptom of that.,” 

    If they think he can be bullied, they have drastically underestimated their influence. One only needs to know any of Justice Thomas’ history to know he has a real spine.