Another Big Win: the Court Clips Regulatory State's Claws

On its last day of the current session the Supreme Court by a 6-3 majority finally clipped the talons of the Environmental Protection Agency, denying the agency power to issue broad regulations regarding "climate change." In the process, the Court sent a warning shot to the administrative state and Congress: legislation on broad matters (“major questions”) must come from the legislative branch (Congress), not from the executive branch via "regulation." The decision upends decades of government rule by D.C. bureaucrats, a practice set in operation by Franklin D. Roosevelt who created and empowered some 70 offices and agencies under presidential control. The EPA was established by Richard Nixon in 1970.

The Supreme Court ruled Thursday that federal regulators exceeded their authority in seeking to limit emissions from coal plants in a decision that sharply curtails the executive branch’s authority to make policy actions on a range of issues without congressional direction. In a blockbuster 6-3 decision penned by Chief Justice John Roberts, the court said the Environmental Protection Agency had overstepped when it devised the Obama-era regulatory scheme, known as the Clean Power Plan. The plan had been challenged by West Virginia and others.

The court said that when federal agencies issue regulations with sweeping economic and political consequences—in this case, rules to address climate change—the regulations are presumptively invalid unless Congress has specifically authorized the action.

The case, which must certainly be electrifying the D.C. poohbahs, is West Virginia, et al v. EPA et al. It is a clear threat of a continuing unraveling of the administrative state. How big a deal is this? Far bigger than the earlier decision on abortion (Dobbs v. Jackson), which simply returned the power to regulate abortion to the states. This decision, however, does something arguably even more important to our democracy: it forces Congress to start taking its job seriously again.

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The case began six years ago and has continued through a series of shifts occasioned by a change in presidents, traveled upward to the Supreme Court following a number of court proceedings ,and clarified the capacity of affected parties to sue in the face of indefinite suspension of the regulation to which they object.  The issue was first joined when the Obama administration's EPA issued a plan for reducing carbon dioxide from power plants. Under this "Clean Power Plan," plants would get credits for generating more power from lower-emitting sources. A coalition made up of states and coal companies sued on the ground that the Clean Air Act, the purported authorization for these regulations, gave the EPA only authority to restrict pollution at steam-generating coal power plants, not to require power companies to adopt the government's choices of fuel.

Not so tough anymore.

The Supreme Court blocked enforcement of that rule. Then President Trump changed the rules. Under his administration EPA could only regulate emissions from individual coal-fired steam plants (the Affordable Clean Energy Rule). This shift was challenged by a different coalition made up of environmental groups. The new rules were struck down by the U.S. Court of Appeals for the District of Columbia, leaving the area open for the Biden administration to act.

It was feared the new administration would simply resurrect the earlier Obama approach and require a shift to so-called "renewables." As you might expect, leaving such matters to administrative agencies creates a kind of legal roller coaster, the very sort of thing impossible to contend with in industries that require extensive planning and tremendous capital outlays. Such a fear prompted this case. The West Virginia-led coalition contended that the EPA was seeking to dictate “the big picture of how the nation generates its electricity.” Which was, of course, true.

Like the abortion ruling in Dobbs, this decision is a return to federalism. In Dobbs the power to regulate abortions was returned to the states. In this case the power to regulate power plant fuel is returned to Congress. Imagine congressional debates and action now, in an era when "climate change" polls poorly, and will continue to do so because the costs—the price of gas, home heating, all transported goods—continue to rise as a direct result of  the energy constraints of this fantasy. The responsibility for such nonsense and the pain consumers endure would be squarely on them.

Senate majority leader Chuck Schumer, doesn’t have to imagine.  He knows this is a disaster for his party. With a paper-thin majority in both houses (one currently in jeopardy in the tied Senate as senator Patrick Leahy currently is sidelined with a broken hip), a predicted red wave in November, and the country already in a recession, passage of a law to  curb inexpensive energy in order to meet a posited "climate emergency" is not likely.

Pelosi and Schumer: over a barrel.

Politico reports:" Senate Majority Leader Chuck Schumer said in a statement that 'just like last week’s dangerously misguided and abhorrent decisions on gun safety and abortion, the extremist MAGA Court’s ruling today in West Virginia v. EPA will cause more needless deaths — in this instance because of more pollution that will exacerbate the climate crisis and make our air and water less clean and safe.'" It's more likely, in my opinion, that the decision will lead to fewer opportunities for graft and the deaths of some Democratic careers. As professor  Jonathan Turley tweets,  

It is a curious sight of a congressional leader denouncing a decision that prevents the circumvention of Congress. It is a virtual statement of self-loathing like a player complaining of being sent back into the game by the coach... This is not the first time that Democrats have called for a president to usurp the authority of their own branch. It undermines the faith held by figures like Madison that ambition would combat ambition in the protection of the separation of powers.

Of course, in reality they are not complaining that they’ve been given more power. They know their side is not in a position to deliver what its green base demands. How far from reality is the Democrat saber rattling on this issue? This far according to Politico:

 Congressional Democrats whose efforts to pass legislation to fight climate change have been blocked for years — both by Republicans and, more recently, by Democrats’ own troubles unifying their razor-thin Senate majority — said their party must take action in response to the Supreme Court’s decision. However, the party has so far failed to garner the 50 votes in the Senate needed to move climate legislation amid resistance from West Virginia Sen. Joe Manchin, and supporters see the next few weeks as the last chance to pass a measure.

It's not just the EPA which should be drawing in its belt. This is a significant reduction in the power and grasp of the administrative state. Professor Jonathan Adler notes: "This is also a warning for other federal agencies, including FERC and the SEC. It makes clear that if the federal government is going to take meaningful action to mitigate the threat of climate change (as it should) that action will have to come from Congress."

The Democrats can see the political chessboard as clearly as can I, that’s why you won’t see any debate on "climate change" legislation this year. Instead they’ll be demagoguing about packing the Supreme Court, something even their idol FDR was unable to pull off. Anything to avoid accepting public accountability, and thus scrutiny, for their actions.

THE COLUMN: Guns N' Roeses

It has long been a dictum of mine that, as far as the progressive Left is concerned, "they never stop, they never sleep, they never quit." After their twin defeats at the Supreme Court last week, regarding two of their most sensitive issues (both of which derive from their devotion to cultural suicide, which is their principal objective), don't expect them to give up easily. They subscribe to their version of Islamism or the Brezhnev Doctrine: once they've conquered moral or physical territory, it can never go back to the way it was. They see themselves as the heroes of their own movies, good red-diaper babies constantly battling the forces of revanchism and irrendentism, which are you. The idea that they're the bad guy never occurs to them:

These are, after all, the same people who refused to accept George W. Bush's narrow presidential victory in 2000 ("selected, not elected"); refused to accept Bush's win over John Kerry in 2004; rained hellfire and brimstone down on poor Sarah Palin, whose only crime was a surfeit of motherhood, and snarlingly turned on her running mate and their erstwhile favorite maverick, John McCain in 2008; and went bonkers over the surprise victory of Donald Trump in 2016, thus triggering the entire "Russian collusion" hoax that started with Hillary Clinton and eventually came to embrace the FBI, the intelligence community, the media, and the judicial system.

In the same way, having outlawed school prayer and, from that beachhead, having driven almost any expression of the Christian faith from the public square—the offending prayer in question read, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country," which the pestiferous Madalyn Murray O'Hair and her ilk somehow equated with the "establishment" of a religion—they have gone to the mattresses to expunge anything that smacks of Christianity, especially any proscriptions against the form of baby murder that goes by the sobriquets of "choice" and "women's health." To wit: abortion.

About their only admirable trait is their refusal to give up—something that brands them in perpetuity as sore losers, with whom we have to live as long as these United States stay together. The question is, how much longer can this go on?

"The State’s licensing regime violates the Constitution."

They won't realize it, of course, but justice Clarence Thomas, in the Bruen decision, and Samuel Alito, in Dobbs/Roe, just did them a big favor. In Bruen, Thomas and the majority invalidated New York State's Sullivan Law, a gangland-era judicial excrescence that for more than a century has been a clear violation of the Second Amendment. As I wrote in the New York Post ten years ago:

The father of New York gun control was Democratic city pol “Big Tim" Sullivan — a state senator and Tammany Hall crook, a criminal overseer of the gangs of New York. In 1911 — in the wake of a notorious Gramercy Park blueblood murder-suicide — Sullivan sponsored the Sullivan Act, which mandated police-issued licenses for handguns and made it a felony to carry an unlicensed concealed weapon.

This was the heyday of the pre-Prohibition gangs, roving bands of violent toughs who terrorized ethnic neighborhoods and often fought pitched battles with police. In 1903, the Battle of Rivington Street pitted a Jewish gang, the Eastmans, against the Italian Five Pointers. When the cops showed up, the two underworld armies joined forces and blasted away, resulting in three deaths and scores of injuries. The public was clamoring for action against the gangs.

Problem was the gangs worked for Tammany. The Democratic machine used them as shtarkers (sluggers), enforcing discipline at the polls and intimidating the opposition. Gang leaders like Monk Eastman were even employed as informal “sheriffs,” keeping their turf under Tammany control. The Tammany Tiger needed to rein in the gangs without completely crippling them. Enter Big Tim with the perfect solution: Ostensibly disarm the gangs — and ordinary citizens, too — while still keeping them on the streets.

As befits the criminal organization masquerading as a political party, that's exactly what the Democrats did. And what Justice Thomas just undid: "“Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution." You can read the opinion for yourself, and you should:

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The two most important words in Thomas's opinion are "self defense," an unalienable right from time immemorial. "Self defense" is also a concept that the Left has worked tirelessly to abolish, not simply via the Sullivan Law but with the countless thousands of "common sense" infringements they and their baleful cadres of lawyers have diligently inserted into state and municipal gun laws all across the country. Like Big Tim Sullivan, they know that when guns are outlawed only outlaws will have guns, and that's just fine with them: the outlaws are doing their dirty work for them. Every shooting on the streets of Chicago, every mass murder by incel 18-year-olds who should never have been allowed near a firearm, brings them closer to their desired fascist/national-socialist state, one in which the government need not control the means of production but instead controls the only thing that matters: you and your fellow Americans. For the common good, of course.

But "self defense" smacks too much of freedom, and for the Left the only freedom they believe in is sexual license, untrammeled by any social, political, physical, or legal consequences. Such as special exotic diseases or, worse, children. Reproduction by proselytization is their preferred method of replication, the old-fashioned way being too cisnormative or heterogenerative or whatever their term of opprobrium du jour is at the moment. Their howls of outrage at Justice Alito's Dobbs decision come from a very deep and ugly place: as with Bruen their preferred outcomes are diktats from a central authority, and not the messy result of constitutional republican democracy, in which all matters not expressly delegated to the central government are reserved for the states and the people

A crime, never a "right."

Ah, but to superannuated "feminists" such as Gloria Steinem, "democracy"=abortion. “Obviously,” she wrote, “without the right of women and men to make decisions about our own bodies, there is no democracy.” Never mind that the deliberate killing of a quickened child within a woman's womb was not only never considered a "fundamental right" as the wizened poltroon pretending to be president said the other day; unless you were an ancient Baal-worshipping or Moloch-adjacent Canaanite or Carthaginian, it was a crime. As Alito noted in his eloquent opinion for the majority:

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

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Alas, the returning of the abortion question from the purview of nine unelected white men in 1973 to the vibrant diversity of America in 2022, a country in which the principles of federalism can once again be given free reign, has set off paroxysms of fury on the Left, whose insurrectionary extremists have attacked Christian pro-life centers and called for the abolition of maleness, among other things. The political uses of violence have always appealed to them—that's what the old Sixties concept of "direct action" means, and what "by any means necessary" explicitly embraces—so their hyperventilated overreaction was to be expected. But deep down in the hard core of their animus toward a world whose reality stubbornly refuses to conform with their political ideology, they know peaceful co-existence is impossible. "Pro-choice," my ass: you will be made to care, comrade.

Care about all their transient neuroses, of which their contemporary sexual lunacy is only one of many. There is no stasis in Leftism: you're either breaking boundaries and pushing envelopes and shattering glass ceilings or you're losing. The reason they never stop is that they cannot stop. They can't be satisfied with a small victory. It's all or nothing. It's their fatal flaw, their Achilles heel. 

They could have taken their victories and shut up, but they couldn't. They had to push and push and push and push until they finally ended up in court. They can't stop because their rage comes from the vast, burning nihilistic emptiness inside them that no amount of expanded abortion rights or "pride" months or drag queen story hours or transgressive love stories in Disney cartoons can ever satisfy. The two big decisions last week have given them an out: blue-state fantasy homelands of their very own where they're free to abort babies and celebrative 52 genders and chemically castrate their XY birth-defectives and drive magic electric cars and heat and cool their homes with windmills and eat bugs and refuse to defend themselves and defund the police and enforce "equity" and anything else their hearts desire, even if it kills them.

Because, in the end, that's what they really want. An end to their restlessness and their war against their own savage gods. All we want, by contrast, is to be left alone with a culture we love and prize and wish to pass on to our children. But they want to take us with them because, as we all know, misery loves company. Either we'll learn to care, or they'll die trying. Because in their world, right now, everything's coming up guns and Roeses, and they can't have that, not now, not ever. 

Enemies of the People: Ketanji Brown Jackson

THE COLUMN: The Shadow President

Under the British parliamentary system there is something known as the Shadow Cabinet, which consists of the leadership of the Out party, whichever it may be. Right now, with Boris Johnson having hung onto his prime ministership despite ample reason for the Tories to have dumped him when they had the chance, and should have, the shadow PM is Keir Starmer, the former editor of a radical Trotskyite magazine Socialist Alternatives, although he seems to have modified his fire-breathing leftism since his college days and is now considered "soft Left." As such, Starmer is Leader of the Opposition, and stands at the head of an entire replacement cabinet; should the current government fall or be voted out at the next scheduled election in May of 2024, the British public already knows who's going to be in charge and what they're going to get.

Here in the U.S., the picture is far less clear. Our cumbersome presidential election system, which now begins the day after the midterms and drags on for nearly two years of jockeying and primaries and media flaps and get-out-the-vote shenanigans, and even then doesn't end on Election Day, produces nothing but a single candidate by the spring of the election year. Then more mystery: who will be the running mate? Which rivals or friends or party hacks might wind up in the prospective cabinet? Nobody knows for sure until the announcements are made, the veep before the vote and the others afterward if the ticket is successful. Even then, there is still a nearly three-month "transition" phase before any of this can legally take effect; by the time Inauguration Day rolls around, half the country is already heartily sick of the new guys and the media is openly wondering who'll be running four years later.

The clock is ticking, Joe.

This cycle, things are a bit different. With the Biden administration visibly failing—the hero's welcome given to former president Barack Obama recently spoke volumes about where the real power in Washington lies these days—and speculation rife about whether or even how quickly a senescent, feeble president can be replaced and by whom, the time has never been riper for the Republicans to have a shadow president of their own. As it happens, they have two. 

First, of course, is Donald Trump, the recent president, who appears to be determined to get his old Oval Office back, running on a campaign of I-wuz-robbed grievance. The final three months of the Trump administration were an epic mess, beginning on Election Night when the nation went to bed with Trump comfortably ahead in all the swing states he needed to win to put him over the top, and waking up to one of the most extraordinary reversal of fortunes in our history. 

The mishegoss continued with the flurry of rejected lawsuits seeking in effect to overturn the posted results, including the Supreme Court's disgraceful refusal to hear the one constitutionally based suit, brought by the state of Texas contesting the results in four battleground states (Georgia, Pennsylvania, Michigan, and Wisconsin), they were absolutely obligated to hear. But the Roberts Court dodged the issue, saying that Texas "lacked standing" to bring the case.

The icing on the cake was the Jan. 6 demonstration during which Trump said: "We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." And the rest, as they say, is ongoing history. Trump may feel he is "owed" support because of his loss or his endorsement of various candidates, but as they say in Washington, if you want a friend, get a dog. 

I wuz robbed.

The other is Florida governor Ron DeSantis, a former Congressman who won a squeaker election against, in retrospect, a manifestly unsuitable Democrat candidate in Andrew Gillum, whom DeSantis beat by half a percentage point. Following the election, "Gillum was found inebriated and with a man, who had identified himself on websites as an escort, who was treated on scene for a possible overdose. Crystal meth also was reportedly found at the scene." Florida thus dodged a bullet, DeSantis got a leg up on the other politicians of his generation (he's 43, Trump is 75), and in just a couple of years has transformed himself into a national figure. How did he do it?

As the old saying goes, it's better to be lucky than good, but DeSantis has been both. Practically since he took office, events have broken his way, starting with the unnecessary hysteria over Covid-19 that, in the final analysis, was the thing that destroyed the Trump administration. After briefly flirting with lockdowns, DeSantis reversed course, bit the bullet, ignored media flapdoodle over "cases," and made Florida the free-state alternative to such draconian fascist entities as New York and California. Florida boomed as its rivals faded, hemorrhaging population and losing economic and political clout while the Sunshine State and also Texas happily welcomed the refugees.

DeSantis has been lucky in his enemies as well. Incredibly, the now-"woke" Walt Disney Company—the embodiment of family friendly entertainment since its founding in 1923 through its founder's death in 1966 and up until recently—has decided that the Florida Parental Rights in Education bill (which DeSantis enthusiastically signed) preventing state teachers from discussing human sexuality, sexual orientation and "gender identity" with children in kindergarten through third grade is the hill the company wants to die on

“Florida’s HB 1557, also known as the ‘Don’t Say Gay’ bill, should never have passed and should never have been signed into law,” the statement reads. “Our goal as a company is for this law to be repealed by the legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that. We are dedicated to standing up for the rights and safety of LGBTQ+ members of the Disney family, as well as the LGBTQ+ community in Florida and across the country.”

Disney’s public opposition to the law follows an employee walkout in protest of CEO Bob Chapek’s mishandling of the “Don’t Say Gay” bill.

Don't say it. Don't even think it.

Disney, however, is a private company operating under an extremely generous sweetheart deal with the state of Florida regarding its theme park and environs in Orlando, so you'd think its corporate executives like Chapek wouldn't want to poke the alligator that protects them. But Woke is just another name for Stupid, so naturally Disney blundered right into the governor's wheelhouse.

An escalating fight between Disney and Florida over the so-called “Don’t Say Gay” bill has pushed state lawmakers to threaten to strip the company of special privileges that essentially give it the sovereignty to act as its own government. Backed by Gov. Ron DeSantis, some Republican lawmakers have called for the repeal of a 1967 law permitting the creation of the Reedy Creek Improvement District. The legislation affords Disney the authority to act as its own county with the ability to impose taxes, adopt ordinances and provide emergency services on land that’s home to its sprawling theme park resort, among other powers of self-government.

“As a matter of first principle, I don’t support special privileges in law just because a company is powerful,” DeSantis said March 31 at a news conference. “They’ve lost a lot of the pull that they used to have, and honestly, I think that’s a good thing for our state. You should not have one organization that is able to dictate policy in all these different realms, and they have done that for many, many years. If that stops now, which it should, that would be a good thing for Florida.”

That's not all. For years, Disney has been given super-duper-special treatment in Congress over its copyrighted characters like Mickey Mouse, which should have reverted to the public domain as long ago as 1984, but have been steadily extended through 2024 as an act of favoritism to Disney. Now Congress is taking another look

A number of Republican lawmakers have signalled they may block Disney from renewing copyright on an iconic Mickey Mouse cartoon as punishment for the company’s stance on Florida’s ‘Don’t Say Gay’ bill. Rep Jim Banks, chair of the Republican Study Committee, is circulating a letter among the GOP caucus in which he tells Disney CEO Bob Chapek of his intention to oppose any future extension of Disney copyrights, National Review reports. Disney’s rights to its Steamboat Willie Mickey Mouse, first seen in a 1928 short film, are due to expire on 1 January 2024, although more recent depictions will remain protected by separate copyrights.

No matter how agitated Disney's woke workforce is, this is a fight Disney can only lose and DeSantis can only win. Disney and other work corporations exist in a fantasy-fueled Twitterverse in which nothing is more important than extending the Left's fetish about sexual license unto the generations. That Disney's core audience—the suckers who shell out a fortune to partake of the dubious joys of Disneyland in California and Disney World in Florida—is dead set against the sexualization of children is just another reason to do it. The usual suspects in the media, naturally, are overwhelmingly in favor of the law's repeal, as a glance at Google will readily confirm, and as can be seen by their insistence on siding with the Democrats and calling it the "Don't Say Gay" bill—three words that aren't in the bill and certainly not in the title.

With enemies like the company that bought Harvey Weinstein and the mainstream media, DeSantis doesn't need friends. Meanwhile, the governor has the wind at his back: more than a dozen states are considering similar bills, putting the Florida governor in the de facto driver's seat on the issue. From Covid to the Chinese suborning of America's institutions to the sitting daffy duck called Disney, DeSantis has staked out positions in direct opposition to the Biden Democrats—exactly what you'd expect from a Shadow President who's looking forward, not backward. 

Obama was 47 years old when he became president; DeSantis, should he run, and win, would be 46. Trump will be 78. You do the math. 

Will the Supreme Court Nip the EPA Next?

Too many people judge Supreme Court actions on whether they agree with the outcome, without reference to how the Court said it reached that outcome. Many who cheered when the Court kept the Trump administration from asking citizenship questions on the census cannot be happy with the recent decision respecting vaccination mandates and may be even more unhappy when the Court resolves three challenges to the Environmental Protection Agency’s (EPA) regulations on power plant energy production.

This Supreme Court appears to be chipping away at the behemoth Administrative State and the EPA’s regulations on greenhouse gas regulations may be next on the chopping block. That’s the view of Jonathan Adler at Volokh Conspiracy and I think he has a valid claim.

Not so fast, OSHA.

Adler’s thesis begins with the Occupational Health and Safety Administration’s emergency regulation which mandated that all private employers with one hundred employees  require its employees to be vaccinated against Covid or undergo repeated weekly testing for the virus. The Court ruled that this exceeded the agency’s grant by Congress to protect the health of workers in their place of employment  The Court made clear that without a clear congressional mandate the agency was never given congressional authority to make such  “ a significant encroachment into the lives—and health—of a vast number of employees.”

 There is a hint in Chief Justice Roberts and several other members of the court that they believed that the regulation was a pretextual effort to increase Covid vaccinations, and not a workplace safety move. And the scope of OSHA’s mandate is, after all, simply and exclusively workplace safety. The notion that regulations might be held invalid because they were pretextual even if the agency could provide a reasonable justification for them, was signaled  in an earlier case involving the right of the Trump administration to reinstate a citizenship question in the census:

 [T]he Chief Justice's decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence -- whether or not in the official record -- to show that they, too, have been the subject of an unlawfully pretextual agency action. There is nothing in the Chief Justice's opinion that suggests this analysis is to be confined to those contexts in which the distribution of political power or other particularly weighty concerns are at stake, and there is much language in his opinion... that could find a ready home in legal challenges against HHS, the Education Department, or the EPA.

This is a departure from the usual view on judicial review . Normally, if the regulators can provide a reasonable justification and the regulation aligns with the statutory mandate, courts will not interfere. It also justifies court consideration of matters outside the text of the regulations itself. In sum, it presaged the OSHA case where the White House chief of staff Ron Klain retweeted that this regulation was a “work around” to increase the number of people vaccinated when there was no authority for an executive order compelling it.

Other evidence of the pretextual nature of the  vaccine mandate regulations is found in its own language--the deciding factor for coverage was the number of employees and not the workplace conditions. So, for example if all those one hundred employees were working from home they were covered by the mandate, but if a ninety nine- employee shop involved people working close together in poorly ventilated settings they were not. Seems fairly obviously irrational, doesn’t it?

Block that pretext!

The left may have cheered the census case outcome -- the Supreme Court remanded the issue back to the lower courts and in so doing delayed inclusion of the question in the census-- but it may come back to bite them as coming up on the docket is a case involving the EPA and its authority to regulate greenhouse gases.

This case comes up on several writs of certiorari to the court, challenging a decision by the U.S. Court of Appeals for the District of Columbia which held that the Environmental Protection Agency (EPA) had authority under the Clean Air Act  to regulate greenhouse gas emissions from power plants. Then President Trump rescinded the Obama Administrations Clean Power Plan (CPP) and adopted an Affordable Clean Energy (ACE) in its place. The D.C. court concluded that the Trump Administration's recision was arbitrary and capricious, though it did not compel a reinstatement of the CPP, and the EPA still has not come up with new regulations. In the face of the Supreme Court trend to clip administrative agency wings the EPA is in limbo presently. It has no idea how far the new regulations may sweep.

The three cases upon which the Court granted certiorari broadly question EPA’s authority -- does the Clean Air Act have any limits? What are these administrative boundaries? For example, can the agency ignore cost of compliance, the power of states to set performance standards, reshape the nation’s electricity grid? These, among others, are the questions raised by the three petitioners.

However the Court decides, it is likely to be the most important environmental (and energy) decision cases in the court’s history. And it seems to follow on a partisan attack on the revival of an apparently unrelated citizenship question in the census. On such things does the course of history turn.

Roe v. Wade: America's Original Sin

Yesterday was the 48th annual March for Life in Washington, D.C. It might be the last, at least on a national level.

The reason we as a nation are dealing with the tidal wave of "social justice" cases in federal court system is Roe v. Wade. By inventing "penumbras, formed by emanations" from a Constitutional "right to privacy" (that no longer exists in any other aspect of the lives of Americans), the Supreme Court essentially applied the 1964 Civil Right Act to women; since Roe, women have voted in the majority for Democrats. This may be, perhaps already is, fatal to America working as designed -- which very explicitly excluded women from political power.

The capture of the women's vote post-Roe has driven Democrats ever-farther-left. Democrat leadership knows that Roe means that no matter how left-lunatic they get, they never will lose the votes of single women or of the men who take advantage of their consequence-free sexual availability. By enshrining Roe, the court ensured reduced fertility, diminished family formation, increased reliance on government services, and increased centralization of power by the federal government. In so doing, Roe reduced liberty for all of us.

This is not an argument for or against abortion. Abortion is not the issue. As federal judges are noting across the land, the Constitution does not grant to the federal government the authority to jab citizens. Nor does it give the feds the authority to opine on anything not among the enumerated powers found in Article 1, Section 8 of the constitution. The fundamental problem with Roe is not just the holding, flawed as that was. It is that abortion is not within the constitutional authority of the federal government at all.

Tick-tock, tick-tock...

Neither is it within the purview of the Supreme Court, whose original constitutional authority was severely limited. By doing so they enshrined empathy as a Constitutional Right. They lacked then, and lack now, any authority to do so. By accepting rather than ignoring Roe (their duty under the Constitution), governors further reduced their states to vassals of Washington, D.C., with personal empathy toward liberal social causes now enshrined as a "right."

With the recently argued Dobbs v Jackson, the Court has the once-in-a-lifetime opportunity to correct this error, to state plainly that their job has nothing to do with the right or wrong of abortion, nothing to do with empathy, nothing to do with anything outside the powers of the federal government as granted them by the states when the states voluntarily created the Union. As Justice Clarence Thomas inquired:

If we were talking about the 2nd Amendment, I know exactly what we’re talking about. If we're talking about the 4th Amendment, I know what we're talking about, because it’s written. It’s there. What specifically is the right here that we’re talking about?

That is the issue. That is the only issue. If any hope remains of reining in what has become the unaccountable branch of government, it is that Thomas' view will drive the court's decision and return the issue to the states, where it belongs. Which, all by itself, will be an enormous step back to Constitutional government, the rule of law and sanity.

The Constitution Still Matters, Right?

So purple Arizona filed the first State lawsuit against President Biden’s federal vaccine requirement. Interestingly, the filing is not based on federal government overreach, or the emanations from a Constitutionally-unstated privacy penumbra for Americans (popularly: “My Body My Choice”), or the violation of the ADA that prohibits Americans being asked about their health and medical status:

The Equal Employment Opportunity Commission has found, for example, that an employer may not release an employee's medical records even if they are subpoenaed in a lawsuit, unless the employee consents.

Which law are we supposed to obey, and which violate? I’m confused.

States being superior in our form of government, superior Arizona is suing the inferior federal government based on the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution  through which the States created – and limited the powers of – the federal government.

It can perhaps be said that the Equal Protection Clause is at the core of the 14th Amendment. After all, this amendment was passed in the wake of the Civil War in attempts to remedy some of injustices that led up to that war, like racial inequality and slavery. While slavery is specifically dealt with in the 13th Amendment, inequality is dealt with here. Though race and racial discrimination are still at the heart of the Equal Protection Clause, any unjust government classification – the singling out of one group or another – can be a violation of the Constitution.

The clock is ticking...

By exempting illegal aliens and Afghan immigrants from a mandate for the rest of us, Biden’s diktat “singl[es] out of one group or another” of the population and treats these groups differently. (You may recall we once had a war over this.) This mandate and the exemptions are pretty much the opposite of the Equal Protection clause of the Fourteenth Amendment, (and the Due Process clause of the Fifth Amendment) and inarguably violate the Constitution. Arizona noticed and is suing to put the feds back in their Constitutional box where they belong, saying, “Yes, the Constitution does matter.”

Perhaps one of the SCOTUS precedents Democrats always demand never be overturned (“stare decisis”) has been un-overturned and reinstated and the Plessy-Ferguson “Separate but Equal” doctrine is again in force? I must have missed that memo.

If Biden’s marionette team wants to grant exemptions to employees of the Executive branch, well, that is indicative of this not being about healthcare. These employees are in every State and nearly every city in the nation spreading their unvaccinated covid viral load among the vaccinated (obviously unprotected by the “vaccine” or why worry?). Mandating the behavior of their employees is completely within the authority of the Executive branch.

Perhaps you noticed other groups exempted from the mandate, namely the Legislative branch and its staffs and the Judicial branch and its staffs. Why? Separation of Powers: The Executive cannot mandate behavior among separate, co-equal branches. The Executive can mandate behavior only to employees of the Executive Branch.

And, guess what? I’m not an employee of the Executive Branch. Separation of Powers and non-Enumerated Powers. Zero Constitutional authority was granted to the federal executive to mandate my behavior. Since I am not their employee, they can’t police my behavior. The states did not grant that authority to the feds.

We're from the FBI and we're here to help.

Why? The superior states also did not grant to the inferior federal government “general police powers;” these were reserved by the states. What does that mean? It means the feds can’t “police” me. States reserved police powers, as well as all powers not specifically granted to the feds. See Article 1, Section 8 for a listing of those specific enumerated powers. Healthcare is not among these, nor is any power over what to inject into your body.

See the Ninth and Tenth Amendments – the final two amendments of the Bill of Rights, without which the Constitution would not have been ratified, nor the nation created – for all powers not granted to the feds.

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

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. [Tenth]

But, wait, you say? The Executive Branch, via “rule making,” creates arbitrary rules governing individual behavior all the time. True. And yet, the very first sentence of the Constitution reads:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

Let me repeat that: “All…”

What is the difference between legislation ("laws") that can deprive Americans of life, liberty or property and “rules” that can deprive Americans of life, liberty or property? Spelling.

The honorable gentlelady: Congress at work.

Congress loves to dispose of its accountability by tossing too-hot-to-touch issues over to the Executive branch. Say, like a mandate for an injection you may not want to take. Nothing in the Constitution (to which they must take an oath to support in order to be seated in Congress – and should be expelled for violating) authorizes their doing so.

So the feds lack the power to police the behavior of individuals, and the feds must treat all Americans equally, and the president cannot make law. All of these are violated by the vaccine mandate; only Equal Protection is being tested by Arizona.

Now we shall see, again, whether the Supreme Court, also a creature of the federal government and also limited by that same Constitution to the powers and authority that limit the Executive and Legislative branches, is going to find a way to interpret a power the inferior federal government lacks (i.e. “invent” or “usurp”) to the detriment of the states that created the feds as their creature, and to the citizens of those superior states...

… and whether the Constitution and Rule of Law still exist in America.

'A Republic, If You Can Keep It'

Friday’s announcement that the Supreme Court would not hear the case brought by Texas and other states and parties challenging the election results in Georgia, Michigan, Wisconsin and  Pennsylvania  is a sad blow for those counting on the Court to resolve the issue of  a stolen election of a manifestly incapable candidate. The court ruled that the parties lacked standing to prosecute the case under Article III of the Constitution -- that is to say, they lacked a judicially cognizable interest in the manner in which other states conducted their elections. 

Justices Alito and Thomas indicated in the short order that they would have heard the case  because they believe that when one state sues another, a matter in which the Supreme Court has original jurisdiction, the court lacks discretion to refuse to hear it. But both men opined they “should not grant other relief” and expressed “no view on any other issue.” They had earlier dissented in a case on the very point of the Court’s obligation to hear cases brought  by one state against another, the cases in which it has original jurisdiction and no other court may hear such matters.

Or not, as the case may be.

The complainants argued that the states  whose results they wanted overturned did violate the Constitutional provision  that state legislatures set the time, place and manner of elections -- not judges or other state officials. Even aside from fraud -- as to which numerous affidavits were attached to the complaint -- they charged this conduct was unconstitutional.

Pennsylvania 

  • The Secretary of State unilaterally abrogated signature verification requirements for mail-in ballots.
  • Pennsylvania supreme court changed existing deadline for receiving mail-in ballots from 8 p.m. on the day of election to three days after the election and adopted a presumption that non-postmarked ballots be considered as valid.
  • Election officials in Philadelphia and Allegheny counties did not follow state law permitting poll-watchers to be present for the opening, counting, and recording of mail-in ballots.
  • The Secretary of State directed election officials to remove ballots before 7 a.m. on the day of election in order to “cure” defective mail-in ballots.  This was done only in Democrat majority counties.
  • Election officials did not segregate ballots received after 8 p.m. on election day breaking the promise made to the U.S. Supreme Court thus making it impossible to identify or remove those ballots.

Georgia

  • The Secretary of State unilaterally abrogated signature verification requirements for mail-in ballots.
  • The Secretary of State authorized opening and processing mail-in ballots up to three weeks before election day when the law prohibits that until after the polls open on election day.
  • The Secretary of State materially weakened the security requirements for ballot rejection based on signature verification or other missing information.

First the Declaration, then the Constitution: what could go wrong?

Michigan

  • The Secretary of State unilaterally abrogated signature verification requirements for mail-in ballots.
  • The Secretary of State sent out unsolicited ballots to all 7.7 million registered voters contrary to election law which requires a voter to request a mail-in ballot through a process that includes a signature to be matched with the voter registration.
  • The Secretary of State also allowed absentee ballots to be requested online without signature verification.
  • Local election officials in Wayne County -- containing 322,925 more ballots for Biden than for Trump -- opened and processed mail-in ballots without poll-watchers present.
  • Local election officials in Wayne County also ignored the strict election law requirements of placing a written statement or stamp on each ballot envelope indicating that the voter signature was in fact checked and verified with the signature on file with the state.

Wisconsin

  • The Wisconsin Elections Commission (WEC) positioned hundreds of unmanned illegal drop boxes to collect absentee ballots.  (The use of any drop box, manned or unmanned, is directly prohibited by Wisconsin statute.  Any alternate mail-in ballot site “shall be staffed by the municipal clerk or the executive director of the board of election commissioners…” and “Ballots cast in contravention of the procedures specified in those provisions may not be included in the certified result of any election.”)
  • The WEC encouraged voters to unlawfully declare themselves “indefinitely confined” in order to avoid security measures like signature verification and photo ID requirements.  Nearly 216,000 voters said they were indefinitely confined in the 2020 election, nearly four times as many as in 2016.
  • Strict laws requiring mail-in voters to certify by signature including the signature of an adult witness were ignored or circumvented by election officials.

If you believe, as I and millions of voters do, that the election was stolen from President Trump, it is disappointing that there was no opportunity to have these legal issues resolved. On the other hand, I believed if the Court had decided to take it, it would not have decided who won these states. Instead, it would have remanded the complainants to the legislatures of these states, which have the responsibility to fashion a remedy.

They can do this by decertifying the results and either refusing to offer up a new slate or by picking a new slate on their own and submitting it to Congress at the appropriate time. In fact there was no small amount of evidence of corruption in other states as well -- Arizona comes to mind, and the same option remains for them as well. Prominent conservatives are in fact urging them to do just that.

There are other proceedings concerning individual states wending their way up to the Supreme Court, but I don’t see how any would significantly change the outcome. By my count even if the complainants in the case brought by Texas had been successful , the results would not have been dispositive. Count the electoral votes to see what I mean. Michigan has 16, Wisconsin 10, Pennsylvania 20, Georgia 16. (A total of 62 votes.) If you subtract those from the 306 electoral votes presumptively registered now for Biden and do not award them to President Trump -- which was always the most  optimistic outcome -- Biden would still have 234 votes to Trump’s 232--a majority of the remaining 466 electoral votes.

"Well done is better than well said."

I only see two ways to reverse the outcome. First, the legislatures in these four states and at least one other could refuse to advance their state's electoral votes to Congress, either leaving the state with none or picking an alternate slate. Second, Congress can refuse to certify those states where fraud marked the balloting. Under the 12th Amendment, the House votes January 6 on certification by state delegation (and the Republican delegations have more votes) . All it takes is an objection by one House member and one Senator to force a vote on such objections.

As Benjamin Franklin famously said, we have “a, republic if you can keep it.” Whether we can depends on what is a predictably weak link, the legislatures of the very states where fraud marked the presidential election this year.

Give It Back to the Indians

You'd think that the Supreme Court's recent decision in McGirt v. Oklahoma, which effectively cleaved the Sooner State in half, would be considered a very big deal, but you can hardly find any worthwhile analysis of it. Perhaps this is because the case has been lost in a sea of other major decisions issued around the same time -- including Bostock v. Clayton, which redefined the word "sex" for the purposes of the Civil Rights Act of 1964; June Medical v. Russo, which held that requiring abortion clinics to have admission agreements with local hospitals is unconstitutional; and DHS v. Regents of the University of California, which asserted that the Trump administration could not undo the Obama Administration's DACA order.

Another possibility is that Americans (unlike our cousins in Canada) are used to thinking of "Native issues" as having purely regional import, with little-to-no effect outside of a few dusty states in the south and west. But McGirt v. Oklahoma has the potential to be among the most significant decisions in years.

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For some background: Jimcy McGirt, a member of the Creek nation, or Muscogees, was tried and convicted in 1996 in Oklahoma for raping a four-year-old girl. While serving a life sentence, he appealed the decision, his legal team arguing that the state of Oklahoma had no right to try him for the crime, since the 1866 treaty which the Federal government signed with the Creek nation establishing a reservation in that territory was not abrogated when Oklahoma became a state in 1907.

In a 5-4 decision (which saw Trump appointee Neil Gorsuch join with the four liberal justices), the court agreed, declaring that, despite a century of behaving otherwise, much of eastern Oklahoma is legally "Indian country," and as such McGirt (and hundreds of other Indians currently imprisoned for crimes in the area) should have been tried in federal court, which has jurisdiction over Indian affairs.

Writing for the majority, justice Gorsuch conceded the potential for this decision to have wide ranging and unpredictable effects:

In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long.

In his dissent, chief justice John Roberts added some more specificity to Gorsuch's point, while pointing to the mind-boggling scope of this decision, which, although ostensibly dealing with criminal law, will necessarily in an over-lawyered America bleed into other areas of governance.

Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians. Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.

On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

While all of these points of uncertainty are worthy of further discussion, it is the last one -- environmental law -- to which we will turn our attention.

Oklahoma is our nation's fourth largest producer of oil and third largest producer of natural gas. But according to Dino Grandoni of the Washington Post, after this decision, roughly "a quarter of Oklahoma’s recent oil and gas wells and around 60 percent of its refinery capacity" is now within the confines of Indian territory. "Perhaps more importantly," Grandoni continues, "the network of pipelines pumping crude to and from Cushing, Okla. — a crucial oil terminal for the Keystone XL — spider-web across the redrawn reservation borders."

Andrew Jackson, call your office.

No industry likes uncertainty, and the potential for disruption to the oil and gas industry here is almost unprecedented. Relationships between regulators and producers, established over decades, might ultimately be worthless. The same could be said for the familiarity companies have with the minutiae of local government, and the responsibility that elected officials in Oklahoma have towards constituents effected by regulatory decisions. As Grandoni explains,

Instead of dealing with business-friendly regulators from the state of Oklahoma... producers may soon have to contend with both tribes and the federal government, which often manages land for Native Americans.

This is unfortunate, since, as we've seen, native groups are often susceptible to manipulation and outside interference, either because their governance structures aren't designed to deal with problems at this scale (a particularly acute problem in this case, as the governance of what Roberts called the "rediscovered reservations" hasn't had jurisdiction over this territory in over a century) or because the activist and media narrative diverge from the interests and preferences of the Indians themselves.

Moreover, in instances where the federal government manages territory on behalf of the native population, there is a world of difference between politicians and bureaucrats in Washington, D.C., overseeing the environmental regulations and politicians and bureaucrats in Oklahoma City doing the same. While berating bureaucrats is something of a national past time in America, especially on the right, many of Oklahoma's regulators will have grown up in the area, and will know something about the issues and the land, on top of being familiar with the producers. That isn't necessarily the case for bureaucrats at the EPA or the Bureau of Indian Affairs sitting at a desk 1,300 miles away.

And that doesn't even touch upon taxation, which could see the tribes in charge of eastern Oklahoma begin to collect taxes from producers on top of the state taxes which they already pay.

For those reasons and more, its no wonder that producers in Oklahoma are feeling apprehensive. According to Grandoni, "at least one company — Houston-based producer Alpha Energy Inc. — is warning investors it faces potential legal risks in its leasing of 3,400 acres in the state." And former Tulsa mayor Dewey Bartlett, who now runs an oil and gas company, said he "worries investors may be less interested in working with drillers in eastern Oklahoma — especially when similar opportunities exist in the western half of the state and across the border in Texas."

Now, it must be said that hope isn't necessarily lost for the oil and gas industry in Oklahoma. As Gorsuch pointed out in his majority opinion, "Oklahoma and its Tribes have proven they can work successfully together as partners," and that hundreds of agreements already exist between the state and its natives. There is, in fact, already a preliminary agreement between the Five Tribes with authority over this territory and the state of Oklahoma, signed within a few days of the decision.

But that agreement is general in nature, and it is likely that the interested parties will be hammering out the details of this new arrangement for years to come.

Hopefully there will still be an oil and gas industry -- including the jobs it provides to Oklahomans of all ethnicities -- on the other side.