2025 – on offense

2025 began tragically with a mass murder in New Orleans, and a puzzling car-bomb suicide in Las Vegas. Still, those who value liberty and tradition can take heart: most of the Objectives for Liberty are achieved. But Republicans do not seem to grasp the cardinal maxim of war: the best defense is offense. Stephen Turley, Ph.D., has often said Democrats own the corridors of power; Republicans rent their offices. That must end, and that end must come not only in Congress but also in the Presidency. It also includes reshaping the national judiciary – because they shape what the Constitution means.

Immediate victories possible in 2025

Kenin Spivak, on RealClearPolitics, discussed several things the Trump administration can do immediately. Several Big Cases are still pending, and even the Supreme Court has taken only “interlocutory” appeals. They include Missouri v. Biden (known as Murthy v. Missouri at Supreme Court level), the big censorship case. But they also include:

• U.S. v. Skrmetti, on whether a State may forbid parents to opt their children for surgical mutilation or hormonal poisoning. And:
• Moyle v. U.S. and Idaho v. U.S., on whether the federal government may forbid States to ban abortion completely.

Mr. Spivak suggests the obvious, which nevertheless bears repeating:

The Trump administration should promptly seek to settle lawsuits centered on the outgoing administration’s hard left policies by conceding the government’s position is wrong. It will be difficult for future administrations to violate the settlements without approval of the other parties. At the least, the administration should dismiss, with prejudice, the cases in which it is the plaintiff.

In short, Trump can and should settle the cases of Missouri v. Biden, Moyle v. U.S., and Idaho v. U.S.. Settlement in the Missouri case looks easy: announce unqualified compliance with Judge Terry Doughty’s Big Injunction. For the two Idaho cases (Mr. Moyle is Speaker of the Idaho House), Trump should offer a consent decree saying the Emergency Medical Treatment And Labor Act (EMTALA) does not mandate abortion in any case. In addition, move to dismiss the Tennessee case (Mr. Skrmetti is Tennessee’s Attorney General) with prejudice.

Codification

But this will require more than settlements and dismissals. Trump can and should seek to codify any such settlements into law. Congress took one step in that direction with the latest Continuing Resolution, by defunding the State Department’s Global Engagement Center. Congress must do more than that. Everything Judge Doughty’s Injunction forbade, Congress should make formally illegal. This will mean defunding other agencies, and severely restricting the activities of still others.

EMTALA badly needs amending, if anyone could possibly construe it to require abortion under any circumstances. The Trump administration could change their “guidance,” but Congress should take instruction from Judge Alito’s dissent in the Idaho cases.

Likewise, federal anti-discrimination laws need amending, if anyone can possibly construe them to require surgical mutilation or hormonal poisoning. This applies equally to adults and minors.

Mr. Spivak made one other suggestion that shouldn’t be necessary, but, sadly, might be:

The Trump administration also should seek legislative solutions that give standing to states and private individuals to secure government compliance, and to act as “private attorneys general” to enforce these laws if a future administration fails to do so.

This is very close to the original Texas Heartbeat Act, which gave standing to individuals to “prosecute” violations. The main reason to write laws to grant standing in “government compliance” cases is that the courts have been slow to recognize the harm to the body politic when a President fails to:

By far the best legislative solutions are self-executing ones. The defunding and abolition of GEC is a start – but Congress should forbid the State Department to start it again. Congress should also take certain matters out of federal jurisdiction. Regulation of medical practice is one of these things.

Other 2025 judicial battlegrounds

Several cases will come to oral argument in 2025. The case of TikTok, owned by Chinese company ByteDance, comes to oral argument next Friday (January 10). Briefing is “expedited” in that case. So President-elect Trump submitted his own friend-of-the-court brief last week, saying not to let a ban on TikTok take effect before his inauguration. The law currently requires ByteDance to divest from TikTok no earlier than the day before Inauguration Day. Trump believes – likely with good reason – that he can negotiate a settlement of the national security concerns many have raised. TikTok v. Garland, docket 24-656, and Firebaugh v. Garland, 24-657, consolidated.

On January 15, a case involving age-verification requirements for off-color content comes to oral argument. Free Speech Coalition v. Paxton, docket 23-1122. Texas law requires such age verification, and the Fifth Circuit Court of Appeals affirmed the Texas position. The problem seems to be that the Fifth Circuit used a less strict review standard than might be required.

The Court will hear an interesting religious-exemption case from Wisconsin’s Supreme Court. Catholic Charities seeks to opt out of Wisconsin’s unemployment program and enroll in a parallel, church-run unemployment program. Wisconsin refused their request. Having argued the matter through Wisconsin’s courts, Catholic Charities comes to the Supreme Court. The question:

Does a state violate the First Amendment’s Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior?

At issue: Catholic Charities employs non-Catholics and doesn’t try to evangelize. Now SCOTUS must split the hairs on what constitutes “religious behavior.” Catholic Charities v. Wisconsin Labor and Industry Review Commission et al., docket 24-154.

A Medicaid case

Yet another interesting case involves possible federal regulations, this time regarding Medicaid. Medicaid is usually a State-run program, but the Centers for Medicare and Medicaid Services (CMS) does supervise, to some degree. South Carolina – an abortion-restricting State – wants to deny Medicaid reimbursement to Planned Parenthood for its “family planning services.” Planned Parenthood sued, in their names and on behalf of one of their clients. The Fourth Circuit Court of Appeals has sided with Planned Parenthood, saying South Carolina may not deny reimbursement to a provider of the patient’s choice. The Courts are calling this a privately enforceable right to reimbursement at certain stated rates.

This matter actually came to the Supreme Court once before. Kerr v. Edwards, Docket 21-1431. The Court issued a “Grant, Vacate and Remand” order to the Fourth Circuit, holding that:

[only] an unambiguously conferred right is enforceable by Section 1983 [of the Medicaid Act].

The Fourth Circuit Court stubbornly reaffirmed their earlier holding, so now the Court must hold full-blown proceedings. At issue:

Whether the Medicaid Act’s any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.

Planned Parenthood will always assert that abortion services are not their sole stock-in-trade. But such services are their chief stock-in-trade and their only real money-maker, with everything else a “loss leader.” Medina v. Edwards, Docket 23-1275.

President-elect Trump has never been a consistent pro-life advocate. He did, however, say abortion policy belongs to the States. Perhaps his incoming CMS Director, “Doctor Oz,” can issue immediate “guidance” on Section 1983. But for definitive, lasting change, Congress must amend Section 1983 to eliminate the “private right.” Directly disallowing abortion providers might not be necessary.

Judicial reorganization

The most important thing the Republicans, and especially the Senate Republican Conference, must understand is: stop approving President Biden’s lame-duck judicial nominees. Once Trump takes office, Congress should take up – again – a comprehensive federal judicial expansion bill Biden recently vetoed.

Expanding the Supreme Court is not necessary. Nine Justices can supervise the current number of judicial circuits, and even two more. As CNAV said before, the Ninth Circuit is too big, and should split three ways. Other Circuits, mainly in the Midwest, should swap States. This would break the power of California to maintain leftist jurisprudence over many red States. Our proposed new Circuits would look like this:

Alaska could join the Twelfth Circuit instead, leaving a somewhat smaller Ninth Circuit, with its main courthouse in Honolulu.

Further actions

These reforms would create many more vacancies at the District and Appellate Court levels. This will be important to the assurance of Constitutional government moving forward. This goes double, should Congress take Kenin Spivak’s advice and grant standing to State and private parties to sue to enforce Constitutional norms.

Of course President-elect Trump is planning decisive action to secure the U.S.-Mexican and U.S.-Canadian borders. The first border is more important, because breaches there have stirred up secessionist sentiment in Texas. Trump can and should settle or dismiss several cases directly relevant to border security and Texas actions in that regard. Then, again, Congress should directly empower border States to take appropriate action, even military action. This would constitute a necessary “consent of Congress” for Texas to “engage in war” under circumstances short of conventional invasion.

As mentioned, some things should remain out of federal jurisdiction. That includes not only medical licensure and regulation, but also epidemic response. Incoming Health Secretary Kennedy no doubt has several ideas in that regard.

Donald Trump has four years to ensure American liberty – and respect for life, and for U.S. citizens’ sensibilities about that – as never before. With 2025 begins a perfect opportunity. Trump’s very election has emboldened liberty lovers and demoralized liberty’s enemies. This presents a hot-iron opportunity for those who value liberty, to strike.