Connexion
A Catholic school in Oklahoma seeks to restore the American tradition of publicly funded religious schools.
If there is one legal case that readers should be following but probably haven’t heard much (or anything) about yet, it is the case concerning St. Isidore of Seville Catholic Virtual School in Oklahoma City.
As you’d guess from the name, St. Isidore is a Catholic virtual school. Rather than forming as a private school, St. Isidore applied to become a publicly-funded charter school in the state of Oklahoma. As the Alliance Defending Freedom, which is defending the state agency that approved the school in the pending lawsuits, explains, “In Oklahoma, the Charter Schools Act allows private entities…to contract with a public sponsor and operate charter schools in the state. Although the Oklahoma Act requires charter schools to be ‘nonsectarian,’ the Free Exercise Clause requires that religious entities have the same ability to operate charter schools as nonsectarian entities.”
The above quotation explains the terms of the legal fight ahead. Opponents of the school argue that public funding of a religious school violates the First Amendment by establishing religion with public funds. Supporters of the school respond that the First Amendment prevents the government from establishing a particular religion—creating a state-sponsored church to the exclusion of other denominations—and in no way prevents the government from funding religious organizations. To exclude religious schools while funding secular schools is arguably a violation of the Free Exercise clause of the First Amendment by discriminating against schools with a religious character.
While the case is fairly new, it is set to become a major, attention-grabbing legal battle that will have greater ramifications for religion in America than any case in recent memory. It is likely to reach the U.S. Supreme Court in the next year or so. The case of St. Isidore has the potential to reverse the novel, un-American, and erroneous implementation of a “wall of separation between church and state” that has plagued this country for nearly a century.
Where does the country currently stand on public funding for religious schools? In 2023, the Supreme Court made a decision in Carson v. Makin paving the way for the St. Isidore case. In Carson, the state of Maine had a voucher program that would pay for rural families who lived far away from public schools to send their children to private schools. The program, however, excluded religious schools. The Supreme Court held that allowing vouchers for religious schools did not violate the Establishment Clause, and that paying for secular private schools but not religious schools disfavored religion and violated the Free Exercise Clause of the Constitution. The Supreme Court in Carson, citing an earlier case, noted that “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools….”
If the Supreme Court held that Maine’s program could not exclude religious schools from its voucher program, there is reason to hope that the same logic will be applied in the case of St. Isidore. Carson laid the groundwork for a return to the traditional American principle that there is no law preventing the public funding of religious schools and that treating private religious schools less favorably than secular ones violates the Constitution.
There is a historical question looming behind the disagreement over St. Isidore: Does the American tradition prohibit the public funding of religious schools? The answer is clearly “no.” In fact, the very origin of publicly-funded schools is religious in nature. With the increase of Catholic immigration to the United States in the 19th century, Protestants worried about the spread of the Roman creed. The public funding of the first systematic “public schools” was a response to this. These schools were not secular: “The schools employed Protestant hymns, prayers, and the King James Bible.” There is no legitimate argument, then, that the American tradition excludes the public funding of religious schools.
Yet for over a century, American culture has moved toward secularization—and the law went with it. Since the 1940s, the interpretation of the First Amendment has continually leaned toward greater exclusion of religion from public life.
Many Americans have accepted the secular worldview that forces religion into the purely private sphere. They have accepted the false narrative that the First Amendment means no religious activity or organization may have anything to do with public life or receive public funding. The public role of religion in the American republic has been largely forgotten in the modern world.
Thankfully, some conservatives are waking up and taking on the challenge. The St. Isidore case is a heartening example of this. Organizations like the Alliance Defending Freedom and the Notre Dame Religious Liberty Initiative have banded together to provide public support and legal aid to the cause.
Progressives have caught on to the fact that conservatives are actually refusing to cede further ground to the secular agenda and are in fact fighting back. Despite the left’s insinuations, this is not some dark conspiracy. This is simply a matter of conservative, religious, patriotic Americans putting their energy and their resources into taking a stand for the common good.
Conservatives should be bold and have hope. Religion has a place in the public conversation and the public square. Secular crusaders have been successful in rewriting the law and history regarding religion over the last century. Yet traditionally minded scholars, lawyers, and citizens are fighting back.
The post Charter Case Challenges School Secularism appeared first on The American Conservative.
The Colorado Supreme Court rules Trump is ineligible for the presidency.
On Tuesday, the Colorado Supreme Court ruled President Donald Trump is ineligible for a second term and that Trump’s name will not appear on the GOP primary ballot.
The Colorado Supreme Court was split on the question, rendering a 4–3 decision. The majority opinion spans more than 200 pages and claims that Trump’s actions on January 6, 2021 amounted to an insurrection; therefore, he should be barred from seeking office on the basis of the 14th Amendment’s Section 3, a Civil War–era provision never before used to bar a presidential candidate from running for the presidency.
“We do not reach these conclusions lightly,” the majority opinion claims. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
The Colorado Supreme Court reversed a decision rendered in November by District Judge Sarah B. Wallace. Though Wallace believes Trump “incited” what occurred on January 6, 2021, Wallace’s opinion seemed to embrace the Trump legal team’s argument that Section 3 does not apply to the president who takes an oath to “preserve, protect and defend” the Constitution rather than “support” it. Moreover, Section 3 lists several specific offices, but does not include the presidency.
Nevertheless, the Colorado Supreme Court claims, “President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section 3.”
Predicting the Supreme Court’s intervention, however, the Colorado Supreme Court decided to issue a stay on its opinion until January 4, 2024—the day before Colorado’s January 5 deadline to print primary ballots.
President Trump’s legal representation has vowed to appeal the decision to the Supreme Court. “This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy,” Trump’s legal spokeswoman, Alina Habba, wrote in a statement Tuesday night. “It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order.”
At Citizens for Renewing America, Jeffrey Bossert Clark’s analysis of Section 3 takes a similar tact as Wallace and could potentially preview the Supreme Court’s reasoning if it takes up the case and rules in favor of the former president. “It makes no sense for the Framers to have left out explicit reference to the President and Vice President, if they intended to include them via the side door of a general, back-end reference to ‘any office, civil or military, under the United States,’” writes Clark.
Clark continues:
The only proper conclusion of basic textual analysis is that the President and Vice President were seen as unique officials who would continue to be chosen in the fashion the Constitution provides. And that system is one in which the Electoral College alone is empowered to decide, consistent with state law for choosing electors sent to that College, who could hold the two highest governmental positions in the land. The Fourteenth Amendment’s Framers knew how to draft with precision. And they knew that if they had wanted to bar all potential insurrectionists/rebels from holding any federal office (broadly conceived), the text of Section 3 could have been pared down, and there would have been no need to call out Senators, Representatives, or electors specifically.
As Michael Anton once wrote for Compact, “They Can’t Let Him Back In.” Certainly, lawfare offers the left an opportunity to ensure that Trump cannot assume the presidency, but the attorneys and activist groups bringing these suits know it is likely a long shot (given how the Supreme Court is currently constituted). Nevertheless, you miss 100 percent of the shots you don’t take.
Efforts like the one in Colorado are not meant to poison Trump’s image with the general public—everyone has more or less made up their mind about Trump as a person and a candidate. They also are not moves in a 4D chess game to actually bolster Trump’s candidacy in the primary because the left thinks he’s beatable in a general election (if that was the case, part of their lawfare would not be getting his name removed from the ballot).
The left’s real motivation is to tie Trump and the GOP up in court. The left does not believe voters determine elections—electoral machines do. The more time, money, and talent the left can get Trump and the GOP to devote to fending off lawfare, the less resources the right will have to fine-tune its machine and ensure the security of the upcoming election.
Have states changed their voting procedures back to the pre-coronavirus norm, or are elements of the Covid-19 election regime still in place? They certainly won’t be if the GOP doesn’t have the bandwidth to take on the challenge. Convicting Trump or banning him from the ballot box would be a bonus, but what fun is the headshot when death by a thousand cuts is another viable option?
The post Banned from the Box appeared first on The American Conservative.
Why are common sense restrictions on pornography met with elite derision?
The mainstream media recently purported to report a “story” when an old video emerged in which House Speaker Mike Johnson discussed his use of Covenant Eyes, a pornography filter on his family internet. Many of the media accounts tried to twist Johnson’s perfectly normal and wise decision to keep pornography out of his home into something weird and creepy.
They falsely stated that the Speaker and his son use the filtering technology to “keep track” of each other’s pornography use.
We might dismiss the media’s hysteria as a typical coastal elite disdain for Christians and those who cling to traditional morality. But it seems to me to reflect a deep problem the left has with young people and the internet. Simply put, the left refuses to acknowledge that their advocacy of sexual freedom and First Amendment protection for pornography since the 1960s have created, when combined with the internet, smart phones, and social media, a romantic hellhole for young people.
Social science has caught up with conservative predictions about the sexual revolution and the baleful effect of online existence: Dramatically fewer young people date, marry—or even have sex. They look to social media, pornography, the instrumental encounters of online dating, and random hookups to fill the emotional emptiness of their lives, but their efforts do not seem to work. Rates of mental illness, depression, suicide, overdose among the young are at epidemic levels. Young people are not assuming the roles and engaging in the behaviors that make each other attractive to the opposite sex.
Unfortunately, while the left’s disdain for Johnson may reflect its denial of its role in creating the conditions to which our children are now condemned, this disdain has spread into the conventional wisdom of other elites, including our judges, as seen in judicial reactions to legislative efforts to do something about this crisis.
For instance, in a remarkable opinion, U.S. District Court Judge David Ezra, who recently ordered the removal of Texas’s border barriers on the Rio Grande, stayed a Texas law that required age verification for pornography sites. He simply refused to acknowledge that the Texas age verification law responded to a unique cocktail of harm that online pornography, social media, and smartphones pose to our children. His discussion of pornography’s harm was limited to one sentence: “It is uncontested that pornography is generally inappropriate for children.”
Rather than engage in a serious analysis of both online pornography’s harm—and the difficulties of regulating it—he found Texas law unconstitutional using a wooden analysis based on two Supreme Court cases, written in the infancy of the internet, Reno v. ACLU and Ashcroft v. ACLU. These cases are predicated on factual claims that have proven wrong, such as “filters are more effective than age-verification requirements,” “the Internet is not as ‘invasive’ as radio or television,” and “users seldom encounter content by accident…odds are slim that a user would come across a sexually explicit sight by accident.” Properly understood, these cases should have little precedential effect.
Those who love both our children and the First Amendment must heed Justice Holmes’s admonition: “The life of the law has not been logic: it has been experience.”
At increasing rates, young people are not engaging in the activities that are necessary for human flourishing and the preservation of civilization: romantic attachment, marriage, and children. A reasonable response to this potential civilizational catastrophe would include limiting minors’ access to pornography.
When Johnson installs pornography filters, he is derided as some sort of pervert. When Texas tries to help parents get control of this problem, a federal judge smacks down the effort based on 30-year-old precedent based on outdated factual predicates. In both cases, we must overcome liberal aversion to looking reality squarely in the face.
The post The Left Wants Your Kids Online appeared first on The American Conservative.
The former president had a busy day in court, but he isn’t acting like a man in trouble.
It was a busy day in court for Donald Trump.
In Washington on October 25, Special Counsel Jack Smith asked the court to reinstate a temporary gag order, this time with jail as the penalty, after Donald Trump called the former White House Chief of Staff Mark Meadows (and, by extension, former allies who have cut deals in his election interference case elsewhere in Georgia) a weakling and coward if he agreed to testify in exchange for immunity.
Trump had been under an earlier gag order which barred him from disparaging prosecutors, court staff, and potential witnesses in a pattern that the court filing called “targeting.” The fear was Trump was calling out those he wanted MAGA supporters to go after. Smith urged Judge Tanya Chutkan to “modify the defendant’s conditions of release by making compliance with the Order a condition.” Smith was ultimately successful.
On the same day, October 25, in response to his violation of a separate New York court gag order, Judge Arthur Engoron ordered the former president to testify over an insult Trump threw at the judge’s law clerk. The judge found Trump guilty of violating his gag order and ordered Trump to pay a $10,000 fine on top of an earlier $5,000 one. Trump stormed out of the courtroom, his somewhat bewildered Secret Service in tow. Trump technically remains free only on bail.
Pundits asked if Trump is actually trying to antagonize judges and lose both cases. Or could there be some other reason for Trump’s apparent self-sabotage?
Trump looks like a man who simply does not care what happens with the current trials, or any of the others upcoming. He is both convinced the system is fully unfair and equally aware that the more trouble he seems to get into the faster his poll numbers rise. Each courtroom defeat, small and procedural or a full-on guilty verdict, simply fans the flames for rally crowds. The cash penalties levied by Engoron and Chutkan for violating gag orders have little meaning.
But Trump actually being jailed for violating a gag order would grant him official martyr status. Within a week of his release, Trump will be calling himself a jailed freedom-fighter like Martin Luther King Jr. and Nelson Mandela. He could then literally test an earlier boast by shooting someone in the middle of Fifth Avenue without losing any supporters, or perhaps, with MAGA cheers in the background, simply flip off one of the judges who dare seek to decide his fate.
The post Why Doesn’t Trump Seem to Care? appeared first on The American Conservative.
The modern media environment doesn’t warrant the sweeping libel protections of 1964.
Justice Clarence Thomas said it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” It is New York Times v. Sullivan, America’s defining defamation law, and it unfortunately lives to fight another day—or ruin one.
Thomas, along with others on the Supreme Court, declined earlier this month to revisit the landmark First Amendment decision in New York Times v. Sullivan, rebuffing a request (the case involved a man falsely accused in the press of being a felon) to take another look at decades-old precedent that created a high bar for public figures to claim defamation in civil suits. Since 1964, the media has relied on the case to fend off costly defamation lawsuits brought by public figures. The ruling established the requirement that public figures show “actual malice” by the press before they can succeed in a libel dispute.
Defamation is untruths commonly referred to as libel if in print. Five standards must be met when the defamation takes places between the media and a public figure: 1) the defamatory words have been published; 2) the person being defamed was identified by the statements; 3) the remarks had a negative impact on the person’s reputation; 4) the named defendant wrote the defamatory remarks; 5) the published information is demonstrably false or was published with a reckless disregard for the truth. That means it was published without properly investigating whether it was accurate.
New York Times v. Sullivan held that the First Amendment protects the media even when they publish false statements. What happened in the case was civil rights leaders had run a full-page fundraising ad in the Times describing “an unprecedented wave of terror” by the police against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse than they were. So L.B. Sullivan, in charge of the police in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false to harm his reputation. After losing in a lower court, the Times appealed to the Supreme Court and won.
The Times argued that if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the First Amendment required the margin of error to fall on the side of the media in the cases of public officials. In short, mistakes were going to be made even with good intentions by the media.
The Court created a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations. The standards laid out in Sullivan are why the New York Times has not lost a libel case in America ever since.
In the case the Court just refused to hear (Thomas still wants to review Sullivan but said the current instance is not the right vehicle), Don Blankenship v. NBC Universal, local media labeled Blankenship a felon, causing him to lose a run for the West Virginia Senate, he maintains.
The truth is that Blankenship committed a misdemeanor and was sentenced to one day less than if the case had involved a felony charge. In arguing for Blankenship to a lower court, his attorneys wrote,
The actual malice standard poses a clear and present danger to our democracy. New York Times v. Sullivan and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest.
Attorneys for the media outlets argued the reporting mistakes were honest ones:
There is good reason why the actual malice standard of New York Times has been embraced for so long and so often… At its essence, the standard protects ‘erroneous statements honestly made.’ While it permits recovery for falsehoods uttered with knowledge of falsity or with reckless disregard for the truth, it provides the “breathing space” required for “free debate.” A free people engaged in self-government deserves no less.
Those are the standard Sullivan arguments. It’s just that Thomas does not agree. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution… The actual-malice standard comes at a heavy cost.”
His colleague, Justice Neil Gorsuch, in an earlier statement wrote, “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
It may indeed be time for a change. Sullivan was written for a different media world, one dominated by a handful of huge companies like the New York Times which could be held to high standards. They were assumed to be honorable in their work, and if a mistake was made it was most likely an accident. Reporting was just that—news, reported out to the people as accurately as possible.
Not so in 2023. The media is a splintered mess, with teenage YouTube influencers reaching vast audiences, challenging the giants of yesterday to a share of the market. These micro-outlets have no fact-checking staff, are typically run by people with no journalistic training and maybe not even a high school diploma, and are gloriously, joyfully not trying to be fair and accurate. They traffic instead in gossip and innuendo, smearing together fact and fiction because that attracts eyeballs—their only standard.
This sort of competition has affected the mainstream media, which is more and more partisan and less concerned about the truth if a story brings in readers. One need only look at what passed for journalism as major outlets like the Times and the Washington Post reported falsehood after falsehood throughout the Russiagate scandal, and indeed during the entire Trump administration.
Given the freedom to make mistakes in the name of the First Amendment, these organs instead took that as license to play at the line of reckless disregard for the truth. How else could a Pulitzer prize be awarded in part for placing Trump fixer Michael Cohen in Prague to meet with Russian spies, or claim a Trump Organization email server was instead a secret communications portal to the Kremlin via Alfa Bank? How could the standard in Sullivan meant to promote robust debate end up protecting a serious post-Mueller column in the Washington Post headlined “Here are 18 reasons Trump Could Be a Russian Asset” without the retort of a defamation suit available?
Sullivan was meant to protect the underlying value of debate even in the face of carelessness and substandard journalistic methods. Its era has passed. The Times of 1964 earned the right to make mistakes in service to a greater good; the Times of 2023 would embarrass its earlier self in how it has exploited such a gift.
The post It Is Time for Sullivan to Go appeared first on The American Conservative.
Northern Virginia’s most prestigious high school is testing the courts’ commitment to fair admissions.
White and Asian parents are fighting over how many black students should be allowed into Thomas Jefferson High School for Science and Technology in Alexandria, Virginia. The school, universally known as “T.J.,” is among the finest STEM high schools in the United States. Given its role as a feeder school into the upper echelons of tech in America, this is more than another culture war battle. It is not an exaggeration to say it affects national security, which is why the issue is likely to be sorted out by the Supreme Court.
From its beginnings until summer of 2020, the only way into prestigious T.J. for residents was to pass the rigorous entrance exam. Following the death of George Floyd, T.J. officials became concerned about their negligible number of black and Hispanic students and changed admissions standards. The test was gone, replaced by a holistic review that included “experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”
The results were as intended: Without the entrance test, black students grew to 7 percent from 1 percent of the class, while the number of Asian American students fell to 54 percent from 73 percent, the lowest share in years. The number of white students also fell, but no one seemed to care that they accounted for only 22 percent of admissions, despite being 65 percent of the county population. A group of mostly Asian American parents objected to the new plan and started the Coalition for T.J. The coalition filed a lawsuit with the help of the libertarian Pacific Legal Foundation. Instead of seeing the weighting of experience factors as a way to level the playing field for underrepresented groups, they saw racism against Asian American students. The experience factors were just a work-around for straight up race-based decisions.
In May 2023, after some action in lower courts, the Court of Appeals for the Fourth Circuit ruled in favor of the new admissions process, finding T.J. had not discriminated against Asian American students in its admissions policies. The appellate court, in a two to one ruling, found that there was not sufficient evidence the changes were adopted with discriminatory intent. Writing for the majority, Judge Robert King, a Clinton appointee, said that the school had a legitimate interest in “expanding the array of student backgrounds.” Too bad for the Asians, the on-and-off again minority; there’s only so many seats available at T.J. The court finding was that T.J.’s essay-based admission policy was race neutral and was not a proxy for race-based decisions. T.J. was able to make racially-motivated decisions without appearing legally to make racially-motivated decisions.
This was of course all before the June 2023 Supreme Court rulings in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, which asked three questions: Can race be a factor for admission? Has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives? And can a university reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity?
In short: Can race continue to be an admission factor? The emphasis was on displacing Asian American students with black ones, which is why the Supreme Court cases saw amici filings by the Chinese American Citizens Alliance, the Asian American Coalition For Education, and the Asian American Legal Foundation. Also included: the Coalition for T.J.
The Pacific Legal Foundation now wants the Supreme Court to overturn the Appeals Court decision, arguing that T.J.’s new admissions policies disadvantage Asian American applicants. “They are, in our view, using proxies for race in order to get a racial result,” said Joshua Thompson, a lawyer for the Pacific Legal Foundation. In its filing asking the Supreme Court to review the case, the Foundation argued that T.J.’s admissions plan was “intentionally designed to achieve the same results as overt racial discrimination.” Specifically referring to the Supreme Court’s June affirmative action decision, the filing said that its “guarantees might mean little if schools could accomplish the same discriminatory result through race-neutral proxies.” Is T.J. flouting the most recent Supreme Court decision?
It should be a hell of a fight if the Supreme Court takes the T.J. case. In a forthcoming paper in the Stanford Law Review quoted in the New York Times, Sonja Starr, a professor of law and criminology at the University of Chicago, writes the plaintiffs are “laying the groundwork for a much bigger legal transformation” that could ban any public policy effort to close racial gaps, ultimately reverberating in “areas beyond education, such as fair housing, environmental permitting, and social welfare policies.”
In tension are the most basic of rights, that institutions should not discriminate based on race versus a more modern belief that institutions have a fundamental role to play in achieving racial balance in schools and the workplace. The Court’s decision in Harvard, et al, did not address T.J.’s proxy concept, that by focusing on say essays schools could achieve racist ends by proxy means.
In dissent at the Appeals Court, Judge Allison Rushing wrote the majority refused “to look past the policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result.” Rushing, appointed by Trump, added that the Constitution’s guarantee of equal protection “would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means”—as T.J. is doing.
The T.J. case matters; if the Supreme Court rules for the Asian American parents’ group, that means race-neutral proxies for affirmative action will be the next to fall. A ruling the other way neuters the Harvard decision, creating a simple end-run around to ensure racial “balance.”
The post The Battle for T.J. Enters a New Phase appeared first on The American Conservative.
The judiciary abdicates its duty when it tolerates broad-ranging executive “emergency powers.”
Supreme Court–watchers who try to see beyond the moment have frequently perceived Justice Elena Kagan as a future chief justice. She comes from a family of civil servants and is unlikely to be touched by financial scandal. As dean of the Harvard Law School, she was a conciliator, respectful of opposing views. Most notably, along with Justice Stephen Breyer, she joined the more conservative justices in the Sebelius Obamacare case in finally placing meaningful inhibitions on the conditional spending power in the interests of federalism.
Chief Justice Roberts’s decisive opinion in that case, invoking the taxing power to uphold most of Obamacare, may well have been a wrong turn. He successfully sought to restrain not only the conditional spending power but the commerce power with a principle that it could not be used to define compelled private spending as “commerce.” But on any realistic view, the battle against a national health program of some sort had been lost, notwithstanding some 1920s decisions saying that medical practice was not commerce. Wickard v. Filburn had expanded the commerce power to private actions affecting commerce, and the New Deal’s Agricultural Adjustment Act was funded by a processing tax rather than compelled purchases of private insurance. Invalidation of Obamacare, which was a gift to pharmaceutical and insurance companies, would almost certainly have led to a nationalized program like the British National Health Service.
It was too late in the day to urge that Congress could not decisively transform what had become the nation’s largest industry. The invocation of the taxing power in a non-revenue context was itself dangerous, and repudiated the 8-to-1 Bailey v. Drexel case (1922). In Bailey, the Court, with Associate Justice Louis Brandeis joining, had invalidated a child labor tax as what Professor Felix Frankfurter called “a dishonest use of the taxing power”
But those looking to Justice Kagan as an anchor of essential principles in a crisis must be feeling some disappointment; she joining two so-called liberals in the two cases involving the invocation of vague emergency powers to validate moratoria on rent and student loan payments.
For if there is a power more dangerous than the commerce power, or the taxing power, or even the conditional spending power, it is the power assumed by the executive in declared “emergencies.” As Friedrich Hayek observed, “‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded—and once they are suspended it is not difficult for anyone who has acquired such emergency powers to see to it that the emergency persists.”
The three cases decided on the same day in May 1935 that aroused President Roosevelt’s ire are landmarks in confining emergency powers and the broad legislative delegations relied upon to legitimize them. Perhaps the central opinion of the group is Associate Justice Benjamin Cardozo’s concurring opinion in the Schechter case on the National Industrial Recovery Act (NIRA) codes.
Cardozo was the most liberal member of the Court and stayed on board for almost all the New Deal legislation, but the NIRA was too much. The delegation to the President of power to formulate codes for all of American industry was “not canalized within banks that keep it from overflowing … unconfined and vagrant … a roving commission to inquire into evils and upon discovery correct them.” He continued,
Congress is not permitted to abdicate or to turn over to others the essential legislative functions with which it is vested. This is delegation running riot. No such plentitude of power is susceptible of transfer. Anything that Congress may do can be done by the President without reference to standards that could be known or predicted. The law is not indifferent as to differences in degree.
Journalists and academics have decried the “major question” doctrine invoked by today’s Supreme Court in the rent and student loan moratorium cases, Alabama Association of Realtors v. HHS and Biden v. Nebraska—“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” per an unsigned opinion. These critics should reread Cardozo.
The second case decided in May 1935 was Louisville Joint Stock Bank v. Radford, ignored in much recent moratorium litigation. In the decision, Brandeis defined the essential rights of which secured creditors could not be deprived without early cash payment:
However great the nation’s need…[if] the public interest requires the taking of property of individual Mortgagees in order to relieve the necessities of individual Mortgagors, resort must be had to proceedings by eminent domain so that, through taxation, the burden of the relief afforded in the public interest may borne by the public.
The third case determined on the same day was Humphrey’s Executor v. United States, which denied the President power to summarily remove members of independent regulatory agencies. This case at least partially renounced the “unitary executive” theory so fashionable in recent years and partially embraced the view of Brandeis’s dissent in the Myers case ten years earlier:
The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.
The nation was well served by the three opinions of May 1935 and their sequels. Subsequent New Deal measures were not the product of executive dictates but of congressional compromises. The Social Security Act omitted medical insurance; the Fair Labor Standards Act omitted domestic and agricultural workers. The temporary Republican ascendancy producing the Taft-Hartley Act preserved the rights of labor organization conferred by the Wagner Act and the freedom from private injunctions conferred by the Norris-La Guardia Act.
The extraordinary federal powers conferred by the 1965 Voting Rights Act included time limits; the 1964 Civil Rights Act with its Dirksen amendment refrained from making employment discrimination complaints too easy. The wartime Congress rejected Roosevelt’s grandiose scheme for the conscription of labor and refused to draft strikers. Two recent pieces of legislation increasing debt limits refrained from executive gimmicks and contained concessions to those concerned with fiscal restraint.
The legislature is the agency of compromise in a democracy, and when it is bypassed by “emergency” ukases, either of the executive or judiciary, legislative power atrophies and unacceptable divisions and tensions result. Justice Robert Jackson viewed the decisive event in the Nazi seizure of power as the “emergency” supersession of the powers of the Prussian police before the 1932 election and the irresolution of the German Supreme Court in condemning it, but the historian Richard Evans has pointed out: “[Friedrich] Ebert, as the [Weimar] Republic’s first President, made very extensive use of this power, employing it on no fewer than 136 occasions…. In the end, Ebert’s excessive use, and occasional misuse, of the Article widened its application to a point where it became a potential threat to democratic institutions.” Efforts to forge durable parliamentary coalitions were abandoned, such as one attempted by Konrad Adenauer in 1926, since their existence was no longer necessary to carry on the ordinary functions of government, totally ruled by the Executive.
The oral argument of Biden v. Nebraska was not enlightening, being interrupted by frequent interpellations of the “liberal” justices, including Kagan, about the enormity of the Covid threat as though this trumped all legal values. There were no checks on the scheme imposed by the president, carefully calibrated to appeal to some ethnic groups, and applying to legions of persons unaffected by Covid, notwithstanding Justice Jackson’s one-time admonition that “emergency powers are consistent with free government only when their control is lodged elsewhere than in the executive that exercises them.” The legislation relied upon was prompted by an entirely different sort of military emergency, had no time limits, and no pretense of bi-partisan administration: The Trump and Biden cabinets presiding over the Covid emergency had no Attlee or Bevin, no Stimson or Knox.
It has since emerged that extralegal means may have been used to stifle discussion of the “herd immunity,” which, in addition to vaccines, caused the Covid threat to dissipate; this may also have been true of some “global warming” issues fueling enthusiasm for governmental subsidy of electric cars, potentially another Teapot Dome scandal. In the Olmstead case, Brandeis observed: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding.”
A recent book by a British scholar, Martin Loughlin’s Against Constitutionalism (Harvard University Press, 2023), decries judicial activism as well as judicial ratification of broad delegations to the executive and international agencies, as “instituting a system of rule that is unlikely to carry popular support, without which only increasing authoritarianism and countervailing reaction will result.” Judges who do not wish to be thought of as partisans must curb abuses of executive power no matter who is in office. As Justices Jackson, Frankfurter and Owen Roberts said in their opinion in the Screws case of 1946, which curbed federal criminal jurisdiction even in civil rights cases, “Evil men are not given power; they take it over from better men to whom it had been entrusted.”
Kagan, unlike her two usual liberal allies, Associate Justices Sonia Sotomayor and Jackson, writes in clear and lucid English. In the past, she has demonstrated tolerance and understanding for views that differ from her own. . But excessive tolerance for “emergency powers” is a fatal flaw for a constitutional judge, according their possessor or usurper a trump card which renders all law irrelevant.
The post Justice Kagan’s Apostasy appeared first on The American Conservative.
Lateo.net - Flux RSS en pagaille (pour en ajouter : @ moi) 