Debate and Decision

Remy does the Democratic debate

Enough said

In another matter, Ilya Shapiro writing on The Federalist tells us that the Supreme Court made a good start at rolling back the administrative state this week.

In an otherwise obscure case about veterans’ benefits, the Supreme Court on Wednesday took its first step in pushing back against the overweening administrative state that, at a time Congress isn’t legislating much, creates most of the law by which Americans live our daily lives.

In Kisor v. Willkie, the court was asked to decide how much judges should defer to bureaucrats who re-interpret their own regulations. It didn’t overturn that “Auer deference,” but it limited it in significant ways: All nine justices agreed that courts need to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of leeway. (If a regulation isn’t ambiguous, then there’s no reinterpretation possible.)

In other words, the Supreme Court limited the types of cases where judges defer to agencies, while setting standards for evaluating those cases that boil down to “when the agency is correct and employs special expertise, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. So Auerdeference technically survives, but this new rule sounds an awful lot like reining in the administrative state! (Full disclosure: I filed a brief for the Cato Institute, joined by superstar law professors Jonathan Adler, Richard Epstein, and Michael McConnell, arguing for Auer’s overruling.)

It gets quite confusing, legal English being qhat it is and the Court also being what it is. You should read the article, linked above, but this sums it up pretty well.

Or, as Kavanaugh put it in his own separate concurrence (joined by Justice Samuel Alito), if a court exhausts all the “traditional tools of construction” before concluding that a regulation is ambiguous and thus invoking Auer, it will “almost always reach a conclusion about the best interpretation of the reg at issue.” Have no fear, because courts “will have no reason or basis to put a thumb on the scale in favor of an agency.”

At bottom, Kavanaugh makes the perfect analogy to sum up the unanimous Supreme Court’s position: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.” Executive agencies are on notice that it’s no longer “anything goes” when they rewrite their own rules, that judges will hold their feet to the statutory fire.

Call it Antonin Scalia’s revenge, because the late justice, having authored Auer back in 1997, came around to the view that he was wrong—and that in any event courts need to work harder to avoid finding ambiguity in both statutes and regulations such that deference doctrines come into play. Or call it Kisor deference; while Kisor didn’t overturn Auer, it’s definitely a jurisprudential shift. And that’s a pretty good start to curbing the administrative state.

Nice, I think. And here is something else, 3 years ago this decision probably would not have been reached, I just quoted Kavanaugh and the article quotes Gorsuch as well. Think about that, they were both appointed by President Trump.

And when we say that these start the rollback, what we mean is that the EPA, for example, can’t suddenly decide that a meadow is a wetland because it rained last night. For the most part, once something is interpreted, it stays interpreted. That starts to make the Founder’s words again paramount, as they should be.

That it comes now, 100 years to the week of one the worst Progressive achievements, the Versailles Treaty is remarkable. That treaty, a hodgepodge of identity politics written on a national scale, accomplished almost nothing other than guaranteeing that it would all have to be done over again in 20 years. More on that here, I don’t agree with it all, but he’s on the right path, I think.

The Week

Well, we haven’t made the UK look all that good this week (from the US perspective) but that’s not completely fair. From Fox News.

Fox also says that this chant thundered through the crowd.

Oh Tommy Tommy, Tommy Tommy Tommy Tommy Robinson

As it should and should be cheered to the echo by Americans

I think a pint might be in order.

Even in England

John Hinderaker from PowerLine comments:

The New York Post says that protesters “by the tens of thousands” staged a “massive” demonstration against President Trump today. Perhaps so. But what you see in the photo is Parliament Square. If there were tens of thousands, they must have been somewhere else.

 

We don’t do kittehs here, but all rules have exceptions

From PowerLine and elsewhere

Requiescat in pace

Scalia-Clerks

Justice Scalia’s clerks lined up as an honor guard at the Supreme Court

And so Saturday, I watched the funeral of Antonin Scalia.* It was a most moving service, from the processional

Which is, of course, one of the great old English hymns, based on the 90th Psalm, written by Isaac Watts, a nonconformist, and the father of English hymnody and the tune (St Anne) by William Croft. At his death, Watts’ papers were given to Yale Univesity in the Connecticut Colony, which the nonconformists had founded. Watts is on the Calender of Saints of the CofE and the Lutheran Church 25 November, and the Episcopal Church the following day. Knowing some of that is why it struck me, both because it was a Catholic Mass, and its connections with early America, as so very appropriate.

I’m no expert on Catholic Masses, funeral or regular, although I note that Justice Scalia preferred the Latin Mass, while this was in English, a great gift to those of us not Catholic. My friend Cultural Limits is something of an expert, though and she had some thoughts yesterday on the Mass. Let’s let her guide us.

After what is a typical 24 minute procession for such an occasion, Cardinal Wuerl, Archbishop of Washington gave remarks of welcome, and apologizing for the seating and scaffolding as the Basilica is currently being renovated.  The principle celebrant for this Funeral Mass was Rev. Paul Scalia, son of the judge, of the Archdiocese of Arlington, where the Scalias live.   (He has a lovely singing voice and chanted the prayers, and led the congregation in the Our Father chant that every Catholic knows.)

As the Mass proceeded, the First Reading was from the Book of Wisdom* from the Third Chapter read by the Executive Vice President of Federalist Society Leonard Leo.

But the souls of the just are in the hand of God, and the torment of death shall not touch them. In the sight of the unwise they seemed to die: and their departure was taken for misery: And their going away from us, for utter destruction: but they are in peace.  And though in the sight of men they suffered torments, their hope is full of immortality.  Afflicted in few things, in many they shall be well rewarded: because God hath tried them, and found them worthy of himself.

The Responsorial Psalm was a modern setting if the now fairly traditional or a Funeral The Lord is My Shepherd.  The Second Reading, Hope Does Not Disappoint from St. Paul’s letter to the Romans, was read by Supreme Court Justice Clarence Thomas.  The Gospel from St. Matthew, Praise to You, Father, Lord of Heaven and Earth…Come to Me all who are labored and burdened and you will find rest, was proclaimed by a Deacon from the Archdiocese of Arlington.

“We are gathered here because of one man. A man known personally to many of us. Known only by reputation to even more. A man loved by many. Scorned by others. A man known for great controversy. And for great compassion. That man, of course, is Jesus of Nazareth.” (Fr. Paul Scalia, Homily at his father’s funeral)

Father Paul gave a moving homily relating the connection of the Funeral Mass to Christ, the past, the present and the future, and told a charming story of his father finding himself in Fr. Paul’s line for confession once.  Justice Scalia promptly removed himself from the line and later told his son that he’d be darned if he confessed his sins to HIM.  Father Paul readily agreed with his Dad. […]

Writer’s note: no, this was NOT overdone for a simple, parish Mass as the Scalias requested.  We do this music all the time in my parish.  The incense and the bells weren’t even too much. [I don’t doubt anything she says here, but it looked to this liturgical Lutheran, as the next best thing to a state funeral, which would have been earned by his service. Neo]

As is actually liturgically correct at a Catholic Funeral Mass – or because, as Father Paul told us, Justice Scalia HATED eulogies – there was not one.  In attendance of note: Vice President Joseph Biden and his wife, Jill,  Former Vice President Dick Cheney, Former Speaker of the House Newt Gingrich whose wife, Calista, is a member of the professional choir at the Basilica, the full Supreme Court, and countless mourners who were not recognized formally.

Do read it all, it’s very interesting, link here.

CL reminds us that:

The Funeral Mass of Justice Antonin Scalia ended with “O God Beyond All Praising,” a hymn set to THAXTED and one of the themes from the Jupiter movement of Gustav Holst’s “The Planets.”  In great keeping of the idea of vocation, Justice Scalia was led to his rest to one of the great hymns imploring the people of doing the job God put you on earth to do.  Justice Antonin Scalia was put on this earth to defend the Constitution of the United States, raise a family of good citizens and faith, and give us all an example of courage in the face of adversity.  He accomplished that in spades.

Indeed, he was, and he did.

The rightscoop shared a story last week from a US Marine about Justice Scalia:

My cousin is a U.S. Marine. He shared this on Facebook tonight about Justice Scalia:

I once had the pleasure of hearing Justice Scalia speak. He told a story about a small dinner he attended in England. His hosts raised their classes and said “God save the queen.” 

He asked his hosts what the equivalent statement would be in the United States. They responded, “God save the President.”

Justice Scalia said, “no, God save the Constitution.”

I’m quite certain that as he crossed over, he was welcomed with the words,

“Well done, thou good and faithful servant.”

And now it is up to us.


If you missed the funeral, or just want to see it again, here is the video


Christenrein

Paul von Hindenburg, president 1925–1934, pain...

Paul von Hindenburg, president 1925–1934, painted by Max Liebermann in 1927 (Photo credit: Wikipedia)

Mark Steyn had some thoughts the other day on the SSM ruling specifically and on the role of these decisions on the future in general. They’re good thoughts, as usual, and should be heeded.

Last week, I swung by the Bill Bennett show to chew over the news of the hour. A few minutes before my grand entrance, one of Bill’s listeners had taken issue with the idea that these Supreme Court decisions weren’t the end and, if you just got on with your life and tended to your garden, things wouldn’t be so bad:

Claudine came on and said that’s what Germans reckoned in the 1930s: just keep your head down and the storm will pass. How’d that work out?

David Kelsey writes from the University of South Carolina to scoff at that:

In one corner, we have government recognition of marriage contracts between gays. In the other corner, we have Jews, Catholics, gays, their sympathizes [sic] and other undesirables being put in Nazi concentration camps.

One of these things is nothing like the other, unless you’re a lunatic. Maybe the reason conservatives keep “losing everything that matters” is because they really can’t tell the difference. Which causes increasing numbers of people to recognize them as lunatics.

Since you call me and Claudine “lunatics”, allow me to return the compliment and call you an historical illiterate. If “one of these things is nothing like the other”, it’s because that’s never the choice: It’s never a question of being Sweden, say, vs being the Islamic State (although, if you’re a Jew in Malmö, they’re looking a lot less obviously dissimilar than you might think).

All societies exist on a continuum. Neither Claudine nor I said a word about “concentration camps”. But you give the strong impression that that’s the only fact you know about Nazi Germany: Nazis = concentration camps, right? No wonder you think everything divides neatly into opposing “corners”. In the world as lived, there are no neatly defined corners. Things start off in the corners and work their way toward the center of the room.

Claudine and I were talking about Germany in the Thirties – before the concentration camps and the Final Solution, before millions of dead bodies piled up in the gas chambers. So you need to have an imaginative capacity. It’s not clear from your email that you do, but give it a go: Imagine being a middle-class German in 1933. No one’s talking about exterminating millions of people – I mean, that would be just “lunatic” stuff, wouldn’t it? And you belong to a people that regards itself as the most civilized on the planet – with unsurpassed achievements in literature and music and science. You might, if you were so minded, call it Teutonic Exceptionalism. And you’re “progressive”, too: you pioneered the welfare state under Bismarck, and prototype hate-speech laws under the Weimar republic. And yes, some of the beer-hall crowd are a bit rough, but German Jews are the most assimilated on the planet. The idea that such a society would commit genocide is not just “lunatic”, it’s literally unimaginable. […]

The National Socialist German Workers Party is the largest party in parliament and thus President von Hindenburg has appointed its leader, Herr Hitler, as Chancellor – not der Führer, just Chancellor, the same position Frau Merkel holds today. And the National Socialist German Workers Party starts enacting its legislative programme, and so a few weeks later the Civil Service Restoration Law is introduced. Under this law, Jews would no longer be allowed to serve as civil servants, teachers or lawyers, the last two being professions in which Jews are very well represented.

But that wily old fox Hindenburg knows a thing or two. So as president he refuses to sign the bill into law unless certain exemptions are made – for those who’ve been in the civil service since August 1st 1914 (ie, the start of the Great War), and for those who served during the Great War, or had a father or son who died in action. And the practical effect of these amendments is that hardly any Jew in the public service has to lose his job.

And so in April 1933 it would be easy to say, if you were a middle-class German seeking nothing other than a quiet life, that, yes, these National Socialist chappies are a bit uncouth, but the checks and balances are still just about working. What’s the worst they can do?

Paul von Hindenburg died the following year, and his amendments were scrapped.

That’s Germany’s civil service in 1933. What of America’s civil service in 2015? […]

So observant Christians will no longer be able to serve as town or county clerk. Are comparisons really so “lunatic”? The logic of the 1933 Civil Service Restoration Act is that the German public service will be judenrein. The logic of the 2015 Supreme Court decision is that much of the American public service will be christenrein – at least for those who take their Scripture seriously. That doesn’t strike me as a small thing – even if one thought it were likely to stop there.

But don’t worry, Supreme Arbiter Anthony Kennedy, like President von Hindenburg, has struck a balance:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.

That’s a very constrained definition of religious liberty. He’s not saying you’ll be able to live your faith, but he’s willing to permit you to “advocate” for it.

The Stupidity of Sophisticates :: SteynOnline.

Isn’t that nice of him, for now anyway. We can advocate for our faith, as long, of course, as we don’t offend anybody. How long you think that’ll take? Five minutes or thirty seconds?

Mark ends with this, and so do I, because once it is said, there’s little more to be said, although quite a lot to be done.

For some of us, that won’t do: what matters is the abandonment of first principles – on free speech, freedom of association, freedom of religion and much else – and when that happens you stand against it, because it won’t stop there. It never does

The King’s Prerogative

English: President Barack Obama's signature on...

English: President Barack Obama’s signature on the health insurance reform bill at the White House, March 23, 2010. The President signed the bill with 22 different pens. (Photo credit: Wikipedia)

We have talked several times about the rise of administrative law and it’s almost exact similarity with the King’s Prerogative. You can find those articles here, here, here, and one here at Jess’, nearly all of those articles also have links, if you’re interested.

Today we are going to speak of how the Obama administration and its Democratic sycophants are defending it. In the Affordable Care Act (ACA, Obamacare, and other less complimentary names), it states clearly and unequivocally, that to receive a subsidy one must purchase through an exchange established by a State.

In fact that was one of the major inducements included to try to force the states to establish exchanges. A majority of the states, being more attuned to the people than Washington is, refused. And the matter came to the DC court last week, which ruled that the words meant what the words said. That was what the Democrats had campaigned on back in the effort to pass the law, but now, they find it most inconvenient, since it means that many Americans will have to pay the full price of the overpriced, not very good insurance available on the exchanges.

So now, not understanding apparently, that we were listening (and that You-Tube exists) they are now saying that what they meant was an exchange established by a state or by the administrative bureaucracy of the federal government. Most of the administration, legislature and judicial officials owing loyalty to the Democratic party are supporting this nonsense, and some courts will no doubt rule accordingly. And so we are likely to end up at the Supreme Court again.

On Sunday Angelo M Codevilla wrote on the Library of Law and Liberty on this. Here is a bit of it.

[…]America has moved away from the rule of law in recent decades, as more and more of the decisions by which we must live are made by administrative agencies in consultation with their favorite constituencies and judges rather than by the people’s elected representatives. More and more, statutes passed by Congress are lengthy grants of power to administrative agencies, the content of which is determined by complex interactions between bureaucrats, special interests, and judges aligned with either. Hence House Minority Leader Nancy Pelosi’s famous statement—that the ACA’s meaning would be determined only after its passage—was true of it and most other modern legislation as well. This is the rule of men, not of law.

But the transition away from the rule of law has been masked by the (ever thinner) fiction that the administrators are merely filling in the interstices of laws. Were they to prevail, the administration’s arguments for casting aside the ACA’s explicit provision because it conflicts with its will and its clients’ convenience would mark the dropping of the mask. America’s transition from the rule of law to the rule of the sovereign, largely accomplished some time ago de facto,would now be fulfilled de jure. Openly, this President and his partisans would have trumped law by will. Thereafter, continuing to pretend that America lives by law would be a mockery.

The importance of this is difficult to exaggerate. The nation’s slide into something foreign to its past would accelerate.

Barack Obama is not the last President America will ever have. Sooner or later, someone will come into the presidency representing a majority of Americans who—rightly or wrongly—may be aggrieved by what they feel are measures that the previous administration and its partners have shoved down their throats. They may be eager to engage in retaliatory activity with lots of compound interest. The administrative machinery, the legal arguments, and the political precedents would be ready for them.[…]

You really need to read it all

This morning Robert Tracinski also wrote on The Federalist on this. He shows that this type of legislating is what we increasingly do. Here’s a bit of that:

[…]But the big question is: why do they think they can get away with this? Why do they think they can write something into the law, go around for a couple of years explaining that provision to audiences, and then pretend later that it wasn’t there at all and it’s patently ridiculous for anyone to think it ever was?

Partly this a measure of crass partisanship, and partly it’s a measure of desperation. Without the subsidies, what happens to ObamaCare? And without ObamaCare, what does their messiah have to show for his presidency?

But this also fits into a larger context. They think they can get away with rewriting the law on the fly because of the way we legislate now. For more than a century, it has become increasingly common for Congress to write laws that declare a broad, vague goal without clearly defining the specifics of its implementation—and then leave it to bureaucrats in federal agencies to fill in the blanks.[…]

Again, you should read his entire article

But the main takeaways here are that the legislative authority in our system is vested in the Congress, and only the Congress. One of the results of this mispractice is that Congress can evade their responsibility for what the legislation says, and simply blame HHS or EPA or whatever bureaucracy is concerned. That is not what the Founder’s intended. The bureaucracy (and the executive generally) were established to enforce the laws the Congress passed, essentially without comment, although it wouldn’t do any harm if the Legislative and Executive branches were to occasionally remember that they also have sworn to uphold the Constitution.

In truth this practice is not measurably different that The Statute of Proclamations (1539) that allowed Henry VIII to rule as a despot. This allowed the King to issue proclamations which had the force of an Act of Parliament.This essentially did away with the need for Parliament. And that is pretty much what we are seeing with Obama’s reliance on his “pen and a phone”. I should note that very soon after Henry’s death that Act of Proclamations was repealed, although all the way to 1689 English Monarchs kept trying personal rule under various guises.

This was one of the abuses that the Constitution was specifically written to prohibit. We’ve let it sneak back in, in the guise of administrative law.

Nothing new under the sun is there?

 

The Supreme Court, Watchtowers, and Anniversaries

English: The Supreme Court of the United State...

English: The Supreme Court of the United States. Washington, D.C. Français : La Cour suprême des États-Unis. Washington D.C., États-Unis. ‪Norsk (bokmål)‬: Høyesterett i USA. Washington, D.C. (Photo credit: Wikipedia)

And so, the Supreme Court struck down DOMUS (the defense of Marriage act. From The Daily Caller

The justices issued two 5-4 rulings in their final session of the term. One decision wiped away part of a federal anti-gay marriage law that has kept legally married same-sex couples from receiving tax, health and pension benefits.

President Barack Obama praised the court’s ruling on the federal marriage act, which he said “was discrimination enshrined in law.”

“It treated loving, committed gay and lesbian couples as a separate and lesser class of people,” Obama said in a statement. “The Supreme Court has righted that wrong, and our country is better off for it.”

The other high court decision was a technical legal ruling that said nothing at all about same-sex marriage, but left in place a trial court’s declaration that California’s Proposition 8 is unconstitutional. That outcome probably will allow state officials to order the resumption of same-sex weddings in the nation’s most populous state in about a month. […]

“We have no authority to decide this case on the merits, and neither did the 9th Circuit,” Roberts said, referring to the federal appeals court that also struck down Proposition 8.

In the case involving the federal Defense of Marriage Act, Justice Anthony Kennedy wrote the majority opinion, joined by the court’s liberal justices.

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” Kennedy said.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” he said.

Both are very narrow, and in truth the one on California’s Proposition 8 was mostly that the group defending it didn’t have standing. And DOMA was also very narrow. In fact, if I understand correctly, what it does is allow equal federal benefits to people with legitimate (according to their states) same sex marriage, if I’m correct there, I actually have no problem with it.
And in truth, as a small government guy, I tend to approve of trashing it, because I don’t really think that marriage is any of the government’s (especially federal) business. And those lucky people in their same-sex marriages will be so happy to know that they, like traditional marriage partners are now subject to the Federal tax marriage penalty like the rest of us. It could be worse, it’s between $400 and $700 a year is all. Thanks for helping out guys.
cropped-desert_monast-sm-682400381Strangely, or maybe not, tomorrow marks the one year anniversary of when Jess and I met in the blogging world, our first comments had to do with the Court upholding Obamacare (seems like a lot more than a year ago doesn’t it?)
So while Obamacare and maybe these decisions as well are terrible for the country, they gave me a very positive benefit, a new dearest friend, whom I treasure greatly, and always shall. Thanks, Jess, so much for your help and support over the last (ridiculously eventful) year.
These are the from the first posts where we commented  each other’s blogs, on 28 June 2012, who knew it would be as important as it turned out.

Ok, I’ve had a bit of time to reflect (and read) on the decision now. I figured out quite a while ago that lawyers use words in such strange ways that you need one to translate, so I was waiting for Dan Miller, and I’m nobodies political strategist, so I lean on others.

If I’m reading this right, The Court put a limit on the Commerce clause today, that’s good, not as good as overturning Wickard, but good. In addition they told the administration that if they want to raise taxes for healthcare they could but, it would be explicity be a tax, one of the largest tax increases in history.

Continue reading The Supreme Court, Obamacare, and the Future

A word of sympathy and a prayer for all my American Catholic friends. This too shall pass.

As St. Peter reminds us:

1 Peter 1:6-9 In this you rejoice, though now for a little while, if necessary, you have been grieved by various trials, so that the tested genuineness of your faith—more precious than gold that perishes though it is tested by fire—may be found to result in praise and glory and honor at the revelation of Jesus Christ. Though you have not seen him, you love him. Though you do not now see him, you believe in him and rejoice with joy that is inexpressible and filled with glory, obtaining the outcome of your faith, the salvation of your souls.

A prayerful thought for American Catholics | All Along the Watchtower.

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