Getting It Wrong

What happens when the Supreme Court gets it wrong? Because that happens.

Earlier this week was the 10^th anniversary of the notorious Kelo v. City of New London decision. That was the one that defined imminent domain requirement of “only for public use” to the endlessly broad possible future “public benefit.” So, if a city decides it would rather get the tax money from a mall, it could seize the property (compensating at current market rate) and sell it to a preferred developer who might provide more tax revenue.

All of us regular thinkers could see clearly that the purpose of imminent domain should be something necessary, such as a road. It should be used carefully and sparingly, not extending beyond necessity, and always with the value of the land at its highest (if the road would make the property more valuable, then taking it before the value is added and depriving the owner of that increased value would be wrong).

Taking property from one owner to confer it to a preferred owner is theft. Pure and simple. It wasn’t just misconstruing the term “public use”; it was also a matter of disregarding all the Court’s precedent on property rights. It so thoroughly threw out the long-held understanding of property rights, as Sandra Day O’Connor said in her dissent, only a really “stupid staffer” could fail to come up with some “public benefit” from any government taking. (There’s a good review here.)

There was public outcry—across party boundaries. And some states have amended their constitutions to address the matter, to avoid such public seizures. But the Court has not done anything to reverse itself.

January 22 of this year was the 42^nd anniversary of Roe v. Wade, which found in the “umbras and penumbras” of the Constitution a right to privacy that is construed to guarantee a woman a right to kill her unborn child. It acknowledged that a state could have an interest in its citizens, including persons-in-being, which can be at odds with the between-the-lines right to abortion. So that led to the clarification referred to as the undue burden rule. 

Following that debate-ending SCOTUS ruling, no state has been able to outlaw abortion. But there have been some movements toward progress. Pro-abortionists are revealing themselves to be callous and cruel when they oppose each and every measure. As science becomes better able to show details of a growing fetus, laws in several states—still meeting the undue burden requirement—have managed to curtail partial-birth abortion, and even third-trimester abortions, or abortions after 20 weeks, the point at which pain is proven to be felt by the unborn. Eventually this abomination will be seen for what it is—no thanks to the Supreme Court.

Today we add to the list of SCOTUS errors. The King v. Burwell decision came down, a 6-3 decision claiming that a state exchange is equivalent to an exchange through the secretary of Health and Human Services. The law doesn’t say it. The law clearly says otherwise. But Justice Roberts, in his opinion, even though he could see that the law didn’t say what it needed to say, wrote that we should keep the law from failing.

Here is Justice Roberts’ explanation[i] of the situation (section C):

The Act requires the creation of an “Exchange” in each State where people can shop for insurance, usually online. 42 U. S. C. §18031(b)(1). An Exchange may be created in one of two ways. First, the Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” Ibid. Second, if a State nonetheless chooses not to establish its own Exchange, the Act provides that the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State.” §18041(c)(1).

The issue in this case is whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange. The Act initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” 26 U. S. C. §36B(a). The Act then provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act [hereinafter 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)–(c) (emphasis added).

So, there are two types of exchanges, a state exchange and an exchange set up by the secretary of Health and Human Services. The law is clear that those who qualify for a subsidy must fit the requirement of income between 100-400% of poverty level and sign up through a state exchange. The law was written that way to pressure states into setting up the exchanges. No state exchange, no subsidy for citizens in need. It was assumed very few if any states would refuse to set up the exchanges. But they were wrong. Many states refused—34.  In addition to those refusing, some tried and failed. Several more are still trying but are on the verge of total collapse. So the secretary of HHS ended up providing exchanges for far more than expected.

And that’s why they (the IRS, directed by the administration) decided, even though the law doesn’t provide for it, to subsidize any low-income users of any exchange.

Roberts had a misguided purpose—again. He thinks it might subject the Court to disrepute to throw down a law that Congress duly passed—even though, if the Court has a purpose beyond being the final court of appeal, it’s purpose is to throw down as unconstitutional any law Congress passed that doesn’t meet the limited government standards clearly laid out in the Constitution. He knows it’s bad law. He says,

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).

So, knowing the law is faulty, he says, “But that does not allow this Court to rewrite the Act to fix that problem.” And yet “fix” it (i.e., put in “the fix,” meaning “to influence the outcome or actions of (something) by improper or unlawful means: fix a prizefight; fix a jury)[ii] is what he does.

If there is a bright lining to this dark historical cloud, it is Justice Scalia’s scathing dissent, joined in its entirety by Justices Alito and Thomas. Scalia pulls no punches, and he doesn’t beat around the bush. This is his first paragraph:

Justice Antonin Scalia
(photo by Pete Marovich,/ZUMAPRESS/Newscom)
found here 

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

This exasperated explanation is on his second page:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.

If the subsidy would be given for any exchange, then would be odd to keep referring to the subsidy coming in relation to a state exchange under §36B. There are places in the vast law, cited by Justice Scalia, that refer to both the state exchanges and those provided by the secretary of HHS, and sometimes together those are referred to as “exchanges,” but never in relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is referred to, the full phrase includes “state exchange” and the reference to the part of the law. Not just a time or two, but I believe it was seven times. That’s not an accident; it’s clearly to delineate when such a subsidy can be given.

Here is one of the more important lines:

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

Whatever else follows this decision, this is the precedent that was set: words in law no longer have meaning.

It used to be that a court would look at the clear understanding of the text—what the words mean to reasonably educated people. And if that left something ambiguous, then the court would look at context, to see if the ambiguity can be cleared up elsewhere in the law. And sometimes a law would define a term in a specific way—that would be designated in the law. (Example: for the purposes of this law, the term “duck” shall be referred to as “goat.” And then, for that law only, even if nowhere else, a waterfowl we normally refer to as a duck would be referred to as a goat.)

Roberts actually claims that he is viewing the term “state exchange” in the larger context, but Scalia schools him on that. Chief Justice Roberts just got told, “You keep using that word—state exchanges. I do not think it means what you think it means.”

One difference between Roberts and Scalia is that Roberts thinks he should “help” the lawmakers by ruling, “let’s pretend you wrote it better.” Scalia does the more natural thing: the law says what it says, and that’s all it can do. If you don’t like it, the legislature is free to change the law. As Scalia so aptly puts it:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

And,

They made Congress, not this Court, responsible for both making laws and mending them.

Scalia may be writing the dissent, but his lines will be most memorable. Maybe especially this one:

We should start calling this law SCOTUScare.

Son Political Sphere suggests it could aptly be called RobertsCare, since it is his two bad Obamacare rulings that leave us wondering what this administration is blackmailing him with.

Scalia adds,

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

If the Chief Justice had as his purpose retaining respect for the Court, this decision was a big FAIL. His legacy will be that any time there’s a dispute over the meaning of words in law, the Roberts precedent will be cited: if it doesn’t mean what it says, we will say it means what we want it to mean.

That may be many ridiculous things, but it is not blind justice.

No good comes from a bad Supreme Court decision. Much bad can come from it. Hold onto your hats; we’ll have more to face Friday and Monday, the final days of this Court session.

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[i] http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

[ii] The Free Dictionary by Farlex, definition 2c:  http://www.thefreedictionary.com/fix

Admitting Bias, Part II: The right to abortion?

This is Political Sphere. I felt the need to add to the discussion the recent abortion decisions in Alabama and Mississippi that Mrs. Spherical Model discussed last Thursday. The one that I want to focus on, though, is the Mississippi case. In Mississippi, the court decided that the legislation that had recently passed was unconstitutional because it would result in the closure of the state’s only abortion clinic. This is generally a very reasonable basis in the law—but not in this case.

Generally, if a state is responsible for ensuring a right, they must ensure that right may be obtained within the borders of the state. The best example for this legal basis is the right to legal counsel. Each state is required to ensure that residents of that state have access to legal counsel. This requirement means that the state must provide a lawyer to represent an accused individual when that individual is incapable of paying for legal counsel on their own. The right to counsel has been used to prevent a state from refusing to allow a lawyer to practice in the state if the lawyer did not have an office within the state.

However, in Alabama and Mississippi, the court misunderstands the right being asserted. Planned Parenthood and other abortion providers assert that the right the court is required to protect is the right to an abortion within the state. The right that is actually being protected, according to the “umbras and penumbras” discovered by The Supreme Court, is the right to privacy. The right, specifically, is that reproductive choices made between men, women, and doctors are generally not subject to government interference beyond generally applicable restrictions on the medical industry.

The only exception to this right of privacy is what leads abortion proponents to get confused. The Supreme Court in Roe v. Wade did note that the State had a long-recognized interest in the life of its citizens, including persons-in-being (or unborn children/fetuses). Thus, it became an issue of where is The State’s interest in the person-in-being great enough to eliminate the continued right of privacy in reproductive decisions.

Clarifying the right The Supreme Court has actually recognized also clarifies the claim that the right is to be ensured by the state. If the state were held positively responsible to ensure abortion services were available within that state, that requirement would defeat the clarified right. Instead of being required to limit the restrictions the state may put on private reproductive choices, the state would be required to actively insert itself in the reproductive decisions made.

The undue burden rule

Recognizing that the right found by The Supreme Court is actually a right to privacy in making reproductive choices, The Supreme Court requires that the correct test to apply to legislation affecting reproductive choices is the rational basis undue burden test. This test requires first that some rational basis support the legislation imposed by the government. If a rational basis exists, step two of the test asks whether the legislation creates an undue burden on the person making the reproductive decisions. This second step is where the court in the Alabama and Mississippi cases err.

The first step requires that a rational basis exist for the enacted legislation. In other words, does any logical reason exist that the legislature may have used in deciding to enact the legislation. This does not require that the legislature used any rational basis in enacting the statute. As far as the court is concerned, the legislation may have been enacted because the tea leaves in the cup of the speaker of the house encouraged the Congress to vote yes on all votes scheduled that day. If the court is able to find any logical reason the legislature may have used, the actual reason a statute was enacted is irrelevant. Also irrelevant is whether the legislation actually achieves the rational basis that might have been used to enact the legislation. The Court is not allowed to impose its personal beliefs on elected officials.

The second step allows the court to consider whether the statute results in an undue burden. While this is an outcome based test, the court misapplies the burden onto the state. In Mississippi, the only abortion facility has announced its intention to shut down in response to the new legislation. In Alabama, three of the five abortion facilities announced intentions to shut down in response to the new legislation. The courts in these cases decided that the announced closings imposed an undue burden on people making reproductive decisions within that state.

As I discussed in the last section, however, the state cannot and should not take an affirmative role in assuring that abortion facilities remain open. All the state is required to do under this second step is ensure that the legislation is not unrealistic for the abortion facilities to follow. However, the burden falls to the party claiming that the statute imposes the undue burden to prove that the statute imposes a restriction that the abortion facility cannot comply with.

In other situations, inability to abide by the law is a defense, but the burden is on the party asserting the defense to show that it cannot abide. It is not enough that a party chooses not to abide by the law that imposes some restriction. If that were the case, then The State could not even require sterilization of instruments if abortion clinics chose not to abide by that restriction. Therefore, the test requires that opponents of the statute show that the restrictions are impossible to abide by, or that the restrictions create such an imposition that it is completely unreasonable to expect that the opponent can abide by the statute.

In conclusion, the courts misunderstand the right being alleged in the cases. There is no right to abortion, just a right to privacy in making reproductive choices. This misunderstanding results in the courts then misapplying the rational basis undue burden test as The Supreme Court requires. Using the correct test, it becomes clear that the statutes do not unconstitutionally interfere with the right recognized by The Supreme Court.

Legislating Morality Part II

The Brief History of the "Right to Privacy"

Part I discussed the fatal contradiction within the Windsor decision, allowing the federal government to define marriage different than state definitions in other instances, but not for DOMA. Today, I wanted to discuss the line of cases leading to Windsor to provide a backdrop for part III, where I will explain how the reasoning behind this line of cases is problematic. In Windsor, the majority opinion states that section 3 of DOMA served no other purpose than to “demean the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” As Scalia correctly points out in dissent in both Windsor and Lawrence, the constitution nowhere provides protection for homosexual conduct. In reality, the constitution protects no sexual conduct at all.

In Lawrence, Justice Kennedy explained the path that led to the decision that homosexual conduct is protected by the Constitution, despite clear precedent in decisions such as Bowers v. Hardwick that sodomy is not protected conduct. As Kennedy observes, the line of erroneous reasoning began with Griswold v. Connecticut.

In Griswold, the court chose to invalidate a state law prohibiting the use of contraceptive drugs and devices. The court defined a new “right to privacy” as the interest protected in their decision, specifically emphasizing the marital relation and the protected space of the marital bedroom. It should be noted that this new “right to privacy” is in no way connected with the long accepted “right to privacy” granted by the fourth amendment against unreasonable searches and seizures.  Instead, the new “right to privacy” is based off “substantive due process rights,” or rights by the fact that the protected thing is deeply rooted in this Nation’s history and tradition.

But the court soon expanded this newfound “right” to include certain decisions regarding sexual conduct beyond the marital relationship. In Eisenstadt v. Baird, the court determined a law prohibiting the distribution of contraceptives to unmarried persons was unconstitutional, because it denied unmarried people “equal protection” of sexual conduct. The Eisenstadt court exclaimed, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Further expanding on this new “right to privacy,” the court then decided the infamous Roe v. Wade. In Roe, the court struck down a Texas law prohibiting abortions, recognizing a woman has a right “to make certain fundamental decisions affecting her destiny.” Apparently, such fundamental decisions extend beyond choosing to engage in conduct which may result in a child and/or choosing to use contraceptive measures to prevent fertilization. Roe instead provided women the option to choose not to live with the consequences of their actions. (A right by the way which somehow men are not equally entitled to, but that is a discussion for another day).

Following Roe, the court again expanded the new “right to privacy” to include decisions made by persons legally unable to make decisions. In Carey v. Population Services Int’l, a plurality decision struck down a New York law prohibiting the sale or distribution of contraceptive devices to persons under 16 years of age. Subsequently, persons who could not even purchase spray paint, for fear the person might misuse it, are protected from “governmental intrusion into matters so fundamentally affecting [that] person as the decision whether to bear or beget a child.”

This line of reasoning led Kennedy to determine that the “right of privacy” to engage in sexual conduct extended beyond the marital relationship to include even homosexual conduct, which had been prohibited by state laws for “hundreds” of years, though rarely prosecuted due to a lack of evidence.  Kennedy summed up the sentiments to say that

Adults may choose to enter upon [a relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

So far, we’ve seen that there is a fatal flaw in the Windsor ruling. And we’ve followed some of the linkage from case to case as the Court somehow discovered additional “rights” to sexual behavior protection in the Constitution. But we have not yet reached the end of connecting the dots. I am again at my word limit, so I will continue this for one more day to show the logical conclusion to this line of reasoning.

Life Matters

TX State Sen. Dan Patrick at TX pro-life rally Saturday
photo from Dan Patrick's Facebook page

I don’t often write about the issue of abortion, because there are so many dedicated civilized people who express well the side of life. I thank them for that. But this past week marked 40 years since the Roe v. Wade decision, and after so many millions of babies have been killed, I want to add my voice at this time.

There is a rhetorical technique used by the opposition to truth: deny and contradict over time, then admit to the veracity of the statement while adding, “So what?” Bill Clinton’s “I did not have sex with that woman” is a classic example. Months later, after all the denials, when the proof was undeniable, he admitted to the original accusation along with, “It was only my private life,” a version of so what?

Hillary Clinton used it this past week in her “testimony” to Congress about Benghazi. She said,

With all due respect, the fact is we had four dead Americans. Was it because of a protest or was it because of guys out for a walk one night decided they'd go kill some Americans? What difference, at this point, does it make? It is our job to figure out what happened and do everything we can to prevent it from ever happening again, Senator.

We know for certain—and she knew the day of the event, if she wasn’t entirely out of the loop of national security—that it was neither a protest nor “guys out for a walk”; it was terrorists. So, months after the event, saying over and over, “we don’t know,” when we know, and we know she knows, she deflects by avoiding the real issue and saying, “what difference does it make?” or, in other words, it doesn’t matter, who cares? so what?

I had not expected the so what? technique to be used on the abortion issue. But that is what I recognized this week is now happening.

The argument over abortion has continued to be over whether the fetus is human life or not: if yes, then that human life is to be valued and protected as other human life; if not, then the woman is simply making a choice about a clump of cells that are part of her own body. This same argument has continued for decades.

As technology gets better, it has become clearer and clearer that the growing fetus is a human baby, with its own DNA separate from the mother’s, with the ability to feel and hear within the cushioning environment of the womb—including feeling pain. Technology has improved greatly on moving the viability to earlier and earlier weeks. The result of this technological progress has been that only a handful of doctors are still willing to perform third trimester abortions; people who understand the procedure are virtually unanimous in disapproving of partial-birth abortion. Laws now recognize the death of a fetus as separate and additional to the death of a mother in accidents or murders.

What I expected, being the positive, civilized person I strive to be, is that more and more people would become convinced that the growing life is a valuable human life, and would move from “the choice is up to the mother” to “because it’s human life, we need to value and protect it.” What I did not expect was the so what? at this point.

Mary Katherine Ham wrote a piece last week referring to a Salon piece that I find shocking. The Salon writer, Mary Elizabeth Williams, admits, very clearly, as practically any pro-life person would, that the fetus is a human life separate from the mother. These are the paragraphs Ham highlights:

I have friends who have referred to their abortions in terms of “scraping out a bunch of cells” and then a few years later were exultant over the pregnancies that they unhesitatingly described in terms of “the baby” and “this kid.” I know women who have been relieved at their abortions and grieved over their miscarriages. Why can’t we agree that how they felt about their pregnancies was vastly different, but that it’s pretty silly to pretend that what was growing inside of them wasn’t the same? Fetuses aren’t selective like that. They don’t qualify as human life only if they’re intended to be born.

When we try to act like a pregnancy doesn’t involve human life, we wind up drawing stupid semantic lines in the sand: first trimester abortion vs. second trimester vs. late term, dancing around the issue trying to decide if there’s a single magic moment when a fetus becomes a person. Are you human only when you’re born? Only when you’re viable outside of the womb? Are you less of a human life when you look like a tadpole than when you can suck on your thumb?

As I said, I would expect such understanding to lead to the decision to protect life. But Williams goes the exact opposite direction. On the pro-life side (actually, on the side of truth for many issues), we are subject to the imposition of terms from the opposition. Pro-choice is an example. This term is particularly repugnant because it’s not about choice to act; it is about choice of consequences. If a woman purposely engages in sex, she has made the choice to risk pregnancy—the creation of a new human life. If she does that and then finds she is pregnant when she doesn’t want to be, does she then have the right to choose to avoid the natural consequences—when a separate human life is now involved? Pro-life people are pro-choice—you get to choose your behavior, but God’s natural laws choose the consequences that follow your choice.

The president revealed his disapproval of God’s law when he said (off script at a Townhall in Johnstown, PA, during the 2008 campaign), of the hypothetical that one of his own daughters could finding herself pregnant, “If they make a mistake, I don’t want them punished with a baby.” This is the same person who, in the Illinois legislature, went further than any pro-abortionist to insist a mother has the right to bring about the death of a baby after birth if she hadn’t intended for the baby to be born alive.

The Salon writer expresses her distress that the term “pro-life” is too strong to fight against. So, she grants that the fetus is indeed a human life, and then says so what?

Here’s the complicated reality in which we live: All life is not equal. That’s a difficult thing for liberals like me to talk about, lest we wind up looking like death-panel-loving, kill-your-grandma-and-your-precious-baby storm troopers. Yet a fetus can be a human life without having the same rights as the woman in whose body it resides….

The “life” conversation is often too thorny to even broach. Yet I know that throughout my own pregnancies, I never wavered for a moment in the belief that I was carrying a human life inside of me. I believe that’s what a fetus is: a human life. And that doesn’t make me one iota less solidly pro-choice.

She believes, unlike our founders, that some human life isn’t worth protecting, but calls those of us who believe “that all men are created equal” are “wingnuts” and “archconservatives” and “right wingers,” while insisting her viewpoint is the reasonable side of the debate.

So let me be clear: there is nothing civilized about a person who chooses to kill a human life because it is not convenient for her to allow him or her to live. That behavior—the very line of thinking that leads to that behavior—is savage.

Thank the Lord if you can still recognize the difference. The slip from apparent civilization to savagery among the Germans and Japanese in the last century was amazingly swift. It coincided with the faulty belief that some human lives are inferior and not worth bothering about.

In a civilized world, we can never say, “So what if it’s human life? What does that matter?” Life matters.