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.

Caveat Emptor: Ready for 'ESG Misconduct'?

The Securities and Exchange Commission is the ultimate double-edged sword.  On the one hand, it is a regrettably necessary federal agency that has a legitimate purpose for existing, and it has a decent track record of punishing financial fraud.

On the other hand, the SEC wields its disproportionate power far too readily.  The enforcement division often wrongfully targets minor offenders or innocents, puts them through the wringer, and even if they don’t bring litigation, end up bankrupting these unfortunates via legal fees.  The agency is also infamous for missing or ignoring warnings regarding massive fraud, such as that perpetrated by the late Bernie Madoff.

The SEC, particularly its enforcement division, should really be about protecting average investors.  They do very little in the way of educating the investing public, and instead engage in bureaucratic rigmarole more focused on deterrence -- which doesn't seem to work.

It's for your own good.

Regrettably, because it is a government agency, it is also subject to politics.  Theoretically, the agency is independent from any given administration, but it is highly unusual for the president to be on a completely separate page from the agency – unless you’re Donald Trump, and everyone is out to get you.

In the case of the Biden administration, the radical Leftist cabal propping up the doddering hair-sniffer is clearly dictating the SEC’s new priorities, and appointed a like-minded individual to run the show. Just look at the SEC’s new number one priority:  Climate change.  For real.

A March 4 press release trumpets an “Enforcement Task Force” focused on climate and ESG issues.  For those not up to speed, “ESG” means “environmental, social, and governmental" investing strategies. Just substitute “woke” and you get the same result.

But here’s the frightening thing: this “task force” is shaping up to be a climate change gestapo.  Per the release: “consistent with increasing investor focus and reliance on climate and ESG-related disclosure and investment, the Climate and ESG Task Force will develop initiatives to proactively identify ESG-related misconduct.”

“ESG-related misconduct”?  What exactly does that mean?

Worse, what does this part mean? “The Climate and ESG Task Force will evaluate and pursue tips, referrals, and whistleblower complaints on ESG-related issues, and provide expertise and insight to teams working on ESG-related matters across the Division."

Is this as ominous as it sounds? As with anything involving politics, and especially anything involving Leftists, one must read between the lines to parse the meaning.  One must also examine the totality of information provided by not just one agency, but the power players inside the Beltway. That includes speeches by the acting SEC chair Allison Herren Lee before the Center for American Progress, a Leftist NGO, in which she said:

No single issue has been more pressing for me than ensuring that the SEC is fully engaged in confronting the risks and opportunities that climate and ESG pose for investors, our financial system, and our economy…this last year has helped to clarify why the perceived barrier between social value and market value is breaking down.

I'm from the government and I'm here to help.

So, yes, it is as ominous as it sounds because this appears to be the first step in moving the SEC away from its statutory mission of protecting investors, and instead pursuing the Marxist goal of dismantling capitalism via regulation.  It will begin with making certain that “ESG disclosures” adhere to some as-yet-undetermined criteria for which failure will lead to enforcement actions. This is also consistent with the SEC’s long-term strategy to expand its power.  That’s the very nature of government agencies.

Fortunately, it will take herculean efforts on the part of the Left and the SEC to make headway. The courts have generally ruled that it is preferable to let companies and investors interface on what matters are important enough to address and disclose.

In addition, the courts have traditionally given companies wide discretion regarding what is considered material information.  Attempting to expand the definition of “material information” to issues involving "climate change" stands far outside existing case law at the Supreme Court level.

For disclosures (or lack thereof) to be considered material, there must first be a duty to disclose.  It’s one thing for an energy or utility company to make (or fail to make) statements regarding climate or environmental issues.  It’s another for a company that has little or no adjacent exposure to those issues to have such a duty.

Even then, a landmark Supreme Court case, Matrixx Initiatives v. Siracaruso, made is clear that even failed to disclose material information may not be actionable.  The court wrote, “…it bears emphasis that [securities laws] do not create an affirmative duty to disclose any and all material information. Disclosure is required under these provisions only when necessary ‘to make…statements made, in the light of the circumstances under which they were made, not misleading’.”

In another landmark case in 2011, TSC Industries, Inc. v. Northway, Inc., the Supreme Court held that “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information available.”  Specifically, the court refers to the mix of information that investors rely upon prior to buying or selling a security.

Believe it or not, that ruling was unanimous and the opinion written by Justice Sotomayor.  One area where the liberal justices surprisingly get it right (sometimes) is on securities fraud cases.

There’s also a constitutional issue at play, generally referred to as “fair notice."  Multiple Supreme Court cases have determined that laws must give people a reasonable opportunity to know and understand what it prohibited.  Otherwise, enforcement is arbitrary and discriminatory.  That’s why agencies publish “rules” so as to provide some element of fair notice.

In what may turn out to be the height of irony, the National Resources Defense Council sued the SEC in 1978 because it wanted more expansive disclosure of environmental matters that were not mandated by statute.  The SEC actually opposed this, saying that too much disclosure would be unmanageable and expensive.

Without congressional mandate or rulemaking, the SEC stands on very weak footing as far as filing securities fraud cases in ESG matters. That's the good news. The bad news is that this doesn't mean the agency won’t try to satisfy the Biden administrations’ Leftist puppetmasters.   Naturally, this just means more resources taken away from what the SEC should be doing – protecting regular investors from genuine cases of fraud.

'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.

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

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.