The 2021 Term of the United States Supreme Court should have told conservatives everywhere to start using the courts. In other words, if Congress, or any State or local “legislature” passes an unconstitutional law, take them to court. Same for Presidential, Gubernatorial, County, or Mayoral Executive Orders. Over the last five days, yet another Joe Biden Executive Order has lost in two different courts. This tells us that, after Mitch McConnell and Kevin McCarthy threw the Midterms, that leaves the courts as an effective check on, and rollback of, items of the Democratic Party agenda that violate the Constitution.
Latest defeat of Biden in the courts
Readers will recall Biden’s announcement of a plan to forgive up to $3 trillion in student loans. (Or rather, to transfer the liability from students to taxpayers.) It was a plan to buy votes, and it was flatly illegal. Biden planned to use the Higher Education Relief Opportunities for Students (HEROES) Act to declare student loan relief in response to the national emergency regarding SARS-CoV-2.
Immediately conservative and libertarian groups started suing to make the plan go away. Judge Richard L. Young of the U.S. District Court for the Southern District of Indiana dismissed a suit in Indiana. In fact he declared the case moot after the Department of Education changed the conditions for application for “forgiveness.”
But earlier, six States (Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina) filed suit in a district court in St. Louis. That lawsuit has now reached the Court of Appeals for the Eighth Circuit. And that court has ruled, 3-0, against Biden, according to The Hill. Specifically the panel enjoined the program “until further notice,” from either the Eighth Circuit or the United States Supreme Court.
Judge Mark T. Pittman, of Fort Worth, ruled:
In this country, we are not ruled by an all-powerful executive with a pen and a phone. Instead, we are ruled by a Constitution that provides for three distinct and independent branches of government.
The Supreme Court
And of course, who can forget the 2021 Term of the United States Supreme Court? That Court set five important governing precedents that conservative private lawyers and Attorneys General can use:
- Dobbs v. Jackson Women’s Health Organization, that at least removed Constitutional protection for ending a pregnancy,
- Carson v. Makin, that repudiated the anti-religious amendments of James G. Blaine,
- New York State Rifle and Pistol Association v. Bruen, which upheld the Second Amendment,
- Kennedy v. Bremerton School District, which struck down the “Lemon Test,” and
- West Virginia v. Environmental Protection Agency, which says quasi-legislative, quasi-judicial execuitive agencies may not make law.
Of the five, Carson v. Makin has not seen any subsequent “Grant-Vacate-Remand” action. Conservative lawyers should not let this matter rest. True enough, your editor is not a lawyer. But sheer logic suggests that Carson invalidates every “Blaine Amendment” to any State constitution. CNAV recommends that Alliance Defending Freedom and similar religious-freedom advocacy groups use Carson to batter down these amendments. If the Gates of Hell cannot prevail against the Church, surely Blaine Amendments cannot prevail against Carson.
New York State has tried at least twice to reinstate their over-century-old gun control regime. Each time a federal court struck that down.
As to Dobbs, the pResident promised, before Midterms, to introduce a bill to codify pregnancy ending on demand until birth. Now he says he lacks the votes! Mike Vance at Daily Political Newswire quotes his rambling renege.
What courts can do, and what they can’t
All this suggests that the movement to “Make America Great Again” has ignored the role of political advocacy law. For decades, leftists used this kind of law to achieve judicially what they could not achieve legislatively.
The new judges that Donald Trump put in place will likely use their powers to abolish and restrain, not mandate. And that’s what the Supreme Court did in its 2021 Term. This Court abolished the regime forbidding States to curtail pregnancy termination. (Not even ordinary considerations of medical safety withstood the Roe regime.) This Court abolished a century-old regime in New York State essentially forbidding all but the well-connected even to own firearms. And this Court abolished the idea that all government programs shall assume that religion is a fraud, and therefore no program should ever support any religious institution or any person desiring to patronize the same. The 2021 Court also reined in quasi-legislative and quasi-judicial executive agencies that think they can make law.
Looking ahead, the Supreme Court has already heard argument on reverse discrimination against anyone who qualifies for admission to university by dint of hard work, just because some leftist constituent group needs the slots.
Having said that, conservative lawyers have room to ask the courts to restrain the government’s proposed regimes to:
- Start school at the age of three, to prevent the inculcation of religious values, and
- Recruit small children for experimental “transformation.”
But one argument will prove most difficult to advance: a right to life.
The way forward
The legislative landscape in America today features Constitutionalist legislatures in some (but not all) States – and an anti-Constitutionalist Congress. Worse yet, we have a nominal President and Vice-President who act as if they are “all-powerful executives” who govern “with a pen and a phone.” Do you remember who first threatened to govern in such a manner? Barack H. Obama.
But we now have a Supreme Court with five definite Constitutionalist members:
- Samuel A. Alito,
- Amy Coney Barrett,
- Neil Gorsuch,
- Brett Kavanaugh, and
- Clarence Thomas.
In addition, Donald Trump replaced 30 percent of the federal appellate bench and a comparable portion of the trial bench.
The 2021 Term, and the two Student Loan cases, show that judicial advocacy can now work for conservatives, if conservatives work at it. And that is where conservatives must work from now on.
So let various “Red State” Attorneys General work with organizations like:
And let them set some definite goals for reversing bad precedent, and restraining the evil coming from this White House.
Remember this also: never give up. Recall that rulings restraining the White House from its student loan transfer program came after at least one unfavorable ruling. The Monte La Difensa that was Roe v. Wade took nearly half a century to fall. So lawyers must keep filing, and keep filing, until a judge with a conscience rules for the Constitution.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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