Judiciary Archives

In June of 2013, the Supreme Court’s liberals declared that the Defense of Marriage Act, which was passed by Congress and signed by President Bill Clinton, was unconstitutional, because, as they said, the power of the individual state in defining marriage is “of central relevance", and the decision to grant same-sex couples the right to marry is "of immense import." Basically, it’s the state, and not the federal government, which should determine what marriage is and license accordingly.

Two years to the day later, those same liberals overrode those immensely important marriage laws in 14 states and proclaimed same-sex marriage from the federal bench. And it once again proves something I’ve said on this podcast so many times; for the Left, it is all about politics. Constitutional matters, federalism, and some supposed regard for the rule of law, all of it, take a back seat in order to get their political agenda passed. The individual state’s ability to define what marriage is, is of central relevance, right up until it isn’t.

Chief Justice John Roberts, in his dissent, noted this, "This court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” Right, that’s what states were allowed to determine on their own, and in fact it was going that way with, as I said, only 14 states left holding on to traditional marriage.

I will say, as an aside, that this thought by Roberts – that the court is not a legislature – was rather ironic, given his previous rewriting of ObamaCare. It’s like two, two, two Supreme Court chief justices in one!

Let me ask you this; which would have been better? Should the Court have allowed same-sex marriage to work its way through the culture, gaining support as it had been doing, or do what it did and just impose it by judicial fiat? Before you answer, consider how well that worked for abortion. It is still a hard fought battle in the culture, and in the state legislatures as well. Rather than let it organically happen democratically, abortion was imposed, and the backlash has been with us ever since. I oppose abortion, and I also oppose a government that will override me and my state’s rights to govern ourselves. I oppose same-sex marriage, but again, the Court’s liberals (and if I may, it seems that liberals in general) have no problem holding state law immensely important one day, and the next day overruling them, so long as their political agenda is served. As I mentioned in the previous episode, the process is just as important as the outcome, and the process, both here and with the ObamaCare ruling, are deeply flawed and set a bad precedent for future courts to reinterpret words, and override the will of the people.

There have been many predictions about what comes next. Some, on the pages of TIME magazine, are already pushing polygamy. That effort has been going on for years, but it got a boost with this ruling. There are those already calling for the abolishing of tax exempt status for religious institutions – churches and religious schools – that won’t teach the liberal orthodoxy about same-sex marriage or won’t perform them. These are likely coming down the road. But, as Erick Erickson noted, the first thing to come will be … silence. The day of the ruling, a newspaper in Pennsylvania said they wouldn’t print letters to the editor on the topic anymore. I have a friend who, when asked what the Bible says about homosexuality, gave a straight answer (so to speak) and was immediately pounced on for being bigoted and hateful. You don’t have to thump anyone with a Bible anymore; it just has to be in the room for someone to claim you’re evil.

So silence will fall, but just because you don’t hear a particular opinion anymore doesn’t mean it’s not there. However, if a baker or a photographer can be put out of business for not participating in a same-sex wedding, how much more of a target are those churches that won’t perform them for what 5 justices have now deemed is a “fundamental right”?


With the ObamaCare and the same-sex marriage rulings, the court has done two things. It has taken power away from you at both the federal and state level.

If you ever complained that Washington, DC was unresponsive to the needs of the people, the ObamaCare ruling should bother you, at the very least. That is, unless you’re celebrating the topic of the ruling, then the process is likely nothing you’re concerned about. I’ve seen it in my Facebook feed. However, from this day forward, federal agencies like the IRS, and all the way up to the President, don’t have to restrain themselves to the actual wording of the laws Congress passes. ObamaCare said you got subsidies through exchanges established by the states, but an unelected federal agency changed that. Your representatives, and by extension you, have lost more influence. The government can do what it wants.

And if you ever complained that your state government was unresponsive to the needs of the people, the same-sex marriage ruling should bother you, too. But again, the winners are too busy celebrating to see how this, too, has erased their influence and yours at the state level. It just takes 5 Supreme Court justices to invalidate anything a state does. Vote however you want, call your state representative as much as you want, but in the end, a majority of 9 unelected justices get the final say for over 320 million people. One man, one vote, indeed.

If you celebrate these rulings, and if you’ve ever been a proponent of power to the people, or you’ve ever put forth the idea that every vote should count, you either have not been paying attention, or have no idea at all what those phrases even mean. At least, I’d really hope that this can all be explained by ignorance and apathy, because the alternative is worse; willful misuse of the founding principles of this country, and that will bring us down faster than any law you can pass.

The Left loves the platitude “Government is just another name for the things we choose to do together.” Of course, by the phrase “choose to do together”, they mean “use a panel of 9 lawyers to force everyone to do what they want”. Platitudes are useful in the meantime, but in the end, for the Left, it’s all about politics.

    The Supreme Court case, King v Burwell, was essentially a question of whether the ObamaCare law would be interpreted as written, or as it was meant to be written, as best as the justices could divine the intent of Congress. The particular issue was whether the IRS could provide subsidies to those who needed them in states where they had their own health insurance exchanges, or in all states, even if they didn’t have an exchange.

    What the law said was that the IRS would administer those subsidies through the exchanges “established by the states”. However, what the IRS did was to funnel them through state and federal exchanges, which is not what the law, y’know, actually said. They essentially reinterpreted the law to mean that exchanges not established by the states qualified as exchanges established by the states.

    Some states said, no, that’s an unconstitutional reading of the law. There are other places in the law where it specifically refers to the states and the federal government combines, but it does not here. That is true. Here’s something else painfully true; this particular wording was exactly what was meant when the law was written.

    How do we know this? Jonathan Gruber, the well-paid architect of the law itself, told us so. It was a classic carrot-and-stick approach. The carrot was billions in tax dollars. The stick was that if you didn’t set up a state exchange, you wouldn’t get any of it. There a link in the show notes to a video explaining all this and him saying, “I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

    This was not a case of trying to read a crystal ball and discover the intent. This was not trying to reach into the minds and writings of the founding fathers and trying to glean what they meant on some obscure constitutional point. You can’t search YouTube to find out what Washington and Jefferson were thinking, But Gruber is all over the Internet, on and off the record.

    This was a game of chicken. Would the states blink first, and all setup exchanges, or would the feds blink and change the law. As it turned out, the fed’s blinked, but instead of changing the law, they just did what they wanted, and the IRS (which, last I checked, was not part of the legislative branch of the government) ruled that it would provide subsidies through the federal exchange as well.

    And Chief Justice John Roberts and his cohort said, “Eh, seems legit.” OK, the ruling was a bit longer than that – 21 pages longer – but in the end that’s what they did. They claimed that if the subsidies were stopped it would ruin the implementation of ObamaCare, ignoring completely that that was the point all along.

    Justice Scalia, writing in his typically entertaining dissent (which is basically the high point of this whole ruling), said that if an exchange not established by a state is actually an exchange established by a state, then words have no meaning. Truer words, that do have meaning, have never been spoken.

    I don’t think those who are celebrating and praising this ruling have any idea at all what it could mean in the future for the power government has over us. And by “those who are celebrating”, I mean, generally, Democrats. The process, however fatally flawed and upside down it is, doesn’t matter as long as they get what they want. It’s always about politics.

    From this point on, federal government agencies can now interpret the law any way they please. Really. Restrictions that were in place in the ObamaCare law were cheerfully ignored in furtherance of a political agenda, and the Supreme Court gave them 6 thumbs up. George Will, writing at the Washington Post, put it this way.

    The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.

    Theprocess has been butchered by this ruling. Sure, ObamaCare proponents got what they wanted, but at a price to their own power as a people that I’m sure they are blissfully unaware of. The political process of a government restrained by law, influenced by the people, which has been slowly eroding anyway, just did a nose dive.

    You say lobbyists have too much power? I’d agree, because they just had to go to one place – Congress – to spend their dollars budgeted for graft. Now, they can bypass the middleman and go straight to the IRS or any other federal agency and bribe an unelected bureaucrat. And that bureaucrat doesn’t have a campaign coffer he or she needs to keep funded, so it’ll be cheaper for the lobbyist. It’s a win-win! But remember, you don’t figure into either of those two wins.

    Some folks, when I bring this up, claim I’m just mad because my side lost. Well, I don’t deny that I don’t like the outcome of the ruling, but even beyond that, and looming larger, is the power grab I see in DC. Unfortunately, all I get in dissent is, “Blah blah blah. Too bad. You lost. I don’t care.” Yes, literally, those words.

      (Yes, it’s been a while since I blogged here. I’ve been busy with my podcast “Consider This”. However, I just had to come out of blogging semi-retirement to comment on this.)

      Being argued today at the high court is King v Burwell, a lawsuit against ObamaCare (also known in some circles as the Affordable Care Act). This is a set of questions and answers that I imagine many people have about this.

      Q: What is this case all about?

      A: The crux of the issue is a 4-word phrase inside the massive law; “established by the States”. The subsidies supplied by the IRS, according to the text of the law, were to only go to those who applied for insurance via exchanges “established by the States”. If they used the federal exchange (HealthCare.gov), that is not “established by the States” so the subsidies wouldn’t apply.

      That’s according to the plain language of the law, and according to Jonathan Gruber, a major influence in the creation of the law.

      What happened was that the IRS gave out subsidies to those without state exchanges anyway. The lawsuit is saying that the government broke the law in doing so.

      Q: What case is the government making?

      A: That the rest of the law, taken as a whole, makes it clear that withholding subsidies from those who didn’t get their insurance via exchanges “established by the States” was not the intent.

      Q: Does it actually say in the law somewhere, specifically, that those people should get subsidies?

      A: Not that I’ve read. In fact, those articles I’ve seen that have written in defense of the subsidies (like this article by Robert Schlesinger in USA Today) don’t cite any other text that would buttress that opinion. Rather, they argue about the results if the subsidies were overturned.

      To me, that sounds like they’re arguing that a law should say what the implementers want it to say, regardless of what the law itself says. That’s a precedent I don’t think we want to create. For example, if a Republican President vetoes legislation, and a Democratic Congress overrides that veto, is the President free to implement the provisions of the law he or she likes and ignore others? I’d say No, and I think those arguing for the ObamaCare interpretation would agree with me if the parties today were reversed.

      The IRS did issue a ruling saying that they would, in fact, give subsidies to those in states without exchanges, but as far as I’m aware, the IRS is not part of the legislative branch.

      Read the rest of this entry

        Unique Lawsuit Against ObamaCare

        George Will, writing in the Washington Post, highlights a very novel lawsuit working its way through the courts. Essentially, the thought process of the suit goes like this:

        1. The Constitution says explicitly that, “All bills for raising reveornue [that’s the 1700s spelling of “revenue”] shall originate in the House of Representatives”.
        2. The ObamaCare bill originated in the Senate. No problem there, but…
        3. The Supreme Court, in what Will calls a “creative” reading of the law, called the bill a “tax” on certain activity (or, in the case of ObamaCare, inactivity).
        4. As a tax, it is therefore a revenue bill, but it did not originate in the House, and is therefore unconstitutional.

        Ya’ gotta’ wonder if Chief Justice John Roberts played rope-a-dope with the liberals on the bench in creating this particular interpretation, and was hoping someone out there would notice.

        There are some other issues with how the bill was created, and reading this short piece, from a link in the show notes, is incredibly enlightening. Keep an eye on Matt Sissel and the Pacific Legal Foundation’s lawsuit. We may be hearing about it more prominently in the months to come.

          Good news on the religious liberty front. Gabriel Malor writing at Ace of Spades give a great rundown of the main points of the district court judge’s ruling with regards to forcing the Catholic Archdiocese of New York to cover, or exempt themselves, from the ObamaCare™ requirement that they cover contraception or abortion. In a snark-less post, it’s just a matter-of-fact examination of the ruling, and why this may have a very tough road to the Supreme Court, assuming it’s appealed that far.

          Some highlights (but, as they say, read the whole thing):

          This is the first litigation to result in a final injunction against the contraception mandate for religious non-profit organizations that come within the Obama Administration’s purported exemption to the mandate.The 7th, 10th, and D.C. Circuit Courts of Appeals have all found the mandate to be an unacceptable burden on the free exercise of religion for for-profit businesses that don’t come under the exemption. This case is important, though, because it recognizes that even the act of having to claim the exemption is an unacceptable burden on religion.

          Very late in this case, the government realized that, although the Archdiocese and its constituent organizations are covered by the mandate, the regulations might not actually force a third party they designate to provide the objectionable contraception coverage. The judge was not amused:

          The Obama administration has handed out so many exceptions to the law, it can no longer claim the law serves a compelling purpose.

          The administration, as it has frequently done with respect to disobeying laws it does not like, argued that it had to enforce the contraception mandate in such an infringing manner because it could not do it any other way. The district court pointed out the obvious flaw in this line of thinking:

          A very interesting and damaging ruling.

            Same-sex marriage got a gentle nudge from the Supreme Court in the recent ruling on the Defense of Marriage Act. But, as much as it seems that it’ll be a state-by-state issue, a court ruling in late July suggests that same-sex marriage anywhere may mean same-sex marriage everywhere. A federal judge in Ohio ordered state officials to recognize the marriage of two men who were married in Maryland, for the purposes of listing on the death certificate of one that he was married to the other.

            Yeah, it’s just a blank on a form being filled in, but if it stands, it would be a legal precedent that could easily be built upon. So here’s the question for same-sex marriage proponents. Do you really believe this should be decided by each state, or should it be handed down from the federal government? If the former, you should be against this judge’s action. If the latter, you should be letting us all know. My guess is that if people knew that proponents are looking to force this on all states, there would be quite the backlash. And so, in the meantime, it’s not spoken of much in polite company. After all, if you think the federal government shouldn’t define marriage via DOMA, then it shouldn’t define marriage, period.

            And the people of Ohio would get to choose how to deal with this situation themselves.

              Attorney Generals Are Not Judges

              [This is part of the script from the latest episode of my podcast, "Consider This!"]

              The Supreme Court said that the people of California have no standing to defend a constitutional amendment that they passed if the state won’t defend it. It’s now open season on laws that state administrations don’t like. Exhibit A.

              Pennsylvania attorney general Kathleen Kane announced Thursday afternoon she will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”

              Who promoted her to judge? Whether or not it’s unconstitutional is not her call to make. The Attorney General represents the state and defends its laws; all of the state and all of its laws.

              If a state Attorney General refuses to defend those laws, that’s an abdication of his or her primary responsibility; their oath of office. AGs do not (or at least should not) have this prerogative. Otherwise you’ll have one set of laws when one administration is in power, and another set for another administration.

              The Supreme Court said that they’re leaving it up to the states to decide what marriage is. But are we leaving it up to the state governments or to the state’s people?

                The Supreme Court "Proposition 8" Ruling

                The Prop 8 ruling was perhaps more troubling than even DOMA. The Supremes decided, cutting across ideological lines interestingly, that the people of California had no standing to bring their own challenge against the ruling of a judge that Prop 8, which created a state constitutional amendment defining marriage, was unconstitutional. Here’s a graphic I found that describes the problem the best.

                While I’m against true direct democracy (the ol’ “two lions and a sheep voting on dinner” analogy), the proposition feature of California law has a high enough bar to clear to get something on the ballot to safeguard that. But now the people’s will can be simply ignored, with the ruling of a single judge, and we, the people, have no standing to challenge it at the Supreme Court. Wow.

                  The Supreme Court DOMA Ruling

                  In the recent spate of rulings from the Supremes were two that dealt with same-sex marriage; the Defense of Marriage Act (or DOMA), and California’s Proposition 8. I’ll look at Prop 8 tomorrow.

                  The portion of the DOMA law that was ruled against is a provision that denies benefits to legally-married gay couples. Gay couples, under federal law, will now be considered “married.” The DOMA vote was 5-4, with Justice Kennedy writing for himself and the liberals on the court. He wrote that DOMA is a violation of, “basic due process and equal protection principles applicable to the federal government.” Very interestingly, he also pointed out that DOMA infringed on states’ rights to define marriage.

                  Having just written about the Voting Rights Act yesterday, let me just say that that last observation is almost humorous coming from the liberal justices. The same people who said that 50-year-old data is sacrosanct in one ruling, said, in another ruling released the same day, that the definition of marriage, which has been defined for millennia, is just a states’ rights issue. The duplicity and blind partisanship is simply breathtaking.

                  In one respect, I agree with the DOMA ruling, regarding the idea that the federal government doesn’t need to be in the business of defining marriage. Now, I don’t thinks states should do that either, but it sets a precedent, that marriage is decided at the ballot box. It isn’t. And besides, regarding federal involvement, it’s the states that give out marriage licenses, not DC. So from that angle, it does make sense. Sort of.

                  The problem is, some states have decided to insert government into marriage like it has never been before. Glenn Reynolds, one of the most popular bloggers out there, the Instapundit, has been voicing his support for the repeal of DOMA by saying that government should get completely out of marriage. But as I have said before, when the government defines marriage, it is completely in the issue. Politics and PR will now define marriage. It didn’t need formal definition before, because it was almost universally agreed that it was one man and one woman. Cultures and religions, outside of government, defined marriage. All the state did was sanction what had already been decided. Basically, now that states decide what marriage is, the logical end of this is that marriage will mean what anyone wants it to mean, which means it will be meaningless. Since states were redefining an already well-defined term, it fell to the federal government to bring a little order and common sense to this chaos. I didn’t like it, but didn’t see any other good way out of it.

                    A portion of the Voting Rights Act of 1965 was struck down by the Supreme Court. The Act itself wasn’t chucked, just the way that it was determining which states came under it. The era of poll taxes and literacy tests are gone, and the disparity between whites and blacks regarding voter participation have been erased. The state with the largest gap between white and black voter turnout these days is Massachusetts, for cryin’ out loud. And in Mississippi in the 21st century, black turnout exceeds white turnout. But the VRA was still punishing the South for race disparities in voting that have long been remedied.

                    So then, is 50-year-old data better than current information when trying to determine who should come under the Voting Rights Act? Have we learned nothing from the mistakes of the past? The four liberal Supreme Court justices, Attorney General Eric Holder, and President Obama would answer No to both those questions, at least based on the outrage they feigned over the ruling. They can’t seem to bring themselves to believe that progress has actually occurred. Or they’re pandering to their base. Either way, to call requiring these stats to be updated “turning back the clock” is cognitive dissonance of the highest order. The request is that the clock be turned forward, and Democrats are against it. Or they are pretending to be against it, and hoping that their base isn’t paying attention.

                    If you are a Democrat, and you’ve wondered why Republicans are often wary of laws that try to remedy sins of the past, this is exhibit A. Here is a law trying to do such a thing, but it’s stuck in the culture and racism of the 1960s, and any attempt to acknowledge repentance from those sins is taken, by liberals, to be just as bad. And if you want to take politically corrective legislation like the Voting Rights Act and update it for today’s reality, you must be racist.

                    Ronald Reagan quipped that government programs are the nearest thing to eternal life we’ll ever see on this earth. But the Supreme Court didn’t do away with the VRA, it just said that it should be relevant. Those politicos that spoke out against this eminently reasonable decision are, in my mind, just as irrelevant as 50-year-old statistics.

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