The View from Right Field

Right to Choose; Right to Life. Again.

The big deal in Washington on Wednesday, in addition to Covid, was the Supreme Court argument in Dobbs v. Jackson Women’s Health Organization, the case involving the Mississippi law generally prohibiting abortion after fifteen weeks.  Among others things, the question in the case is whether Roe v. Wade (1973), along with Planned Parenthood v. Casey (1992), should be overturned.

I had several thoughts.  I’m going to just list them, maybe not in the right order, but as I think of them.

1. First, I think Roe v. Wade is a poor decision from a legal reasoning point of view. The Court created the three-trimester test out of thin air. It didn’t really justify it; it just stated it.  Without commenting on whether abortion ought to be legal, Roe v. Wade is just poorly done.

Teaching American History in an Age of Woke-ism*

The Wall Street Journal recently had a review of a new book about Berlin after World War II – and especially the Airlift.¹  It looks fascinating.  I have read other books about the Airlift and have been to Berlin to see the sights of it – more than once.  It is a great story: How we turned a former enemy into an enduring friend, while defending freedom in the heart of Europe.² 

But I wonder how the Airlift is taught in school today.  Well, it probably isn’t.  But I wonder how it would be taught, if it was.  Would it be taught as a triumph of American policy and determination.  As a success story in the early days of the Cold War.  Something for Americans to be proud of.

Dreamers – Again

The legal status of “Dreamers,” i.e., children who illegally entered the United States with their parent(s), generally before June, 2007 (though maybe that date would be pushed back by some), is in the news again.  A federal district court in Texas has held that Barack Obama’s Deferred Action for Childhood Arrivals, i.e., Dreamers, program is unlawful and has barred the Biden administration from adding new people to the program.  A good explanation of the decision, by Jonathan Adler, a professor at Case Western Reserve University School of Law, can be found here. 

Several comments¹:

1. Former President Obama tweeted on Saturday that “[i]t’s long past time for Congress to act and give them the protection and certainty they deserve”, which is true.  It is too bad that former President Obama didn’t propose a Dreamers-only law when he was president.  He only wanted to do a comprehensive immigration bill.  After the 2010 election, that was a non-starter, whether for good or ill.  It is possible, however, that a Dreamers-only bill might have gotten enough Republican support to pass.  I don’t know.  But former President Obama didn’t try.  It may have been that there were not enough Democrats willing to pass a Dreamers-only bill.  Maybe there were so many Democrats who wanted a comprehensive immigration bill and were unwilling to break it into parts and vote on the parts individually, that a Dreamers-only wouldn’t have gotten enough Democratic votes to pass, even if some Republicans would have voted for it.  We’ll never know because former President Obama didn’t try.²

2. Also, the Obama administration merely issued an executive order on Dreamers.  It did not pursue t he formal rule-making processes for notice and comment under the Administrative Procedure Act.  I don’t know if that would have made a difference, but they didn’t try, which is unfortunate.  Following the proper procedures and process is always better.

3. If a Dreamers bill passes, it’s got to be the last one.  Ronald Reagan did immigration reform back in the 1980s, which included an amnesty on the basis that we would step up efforts on controlling illegal immigration and that it was a one-time only thing.  If we are going to do it again, and I would happily support a Dreamers-only bill, this has to be the last time – and we have to mean it.

4. Plus, we have to get our immigration system, both legal and illegal, under control.  Things are a disaster now.  I would like to think there are enough people of reasonably good will in Washington to try to do it, but I’m not sure.  It may be that the bases on both sides are so strong, or at least loud, that it is more important to beat the other side than to do something good for the country that might look like a bit of a victory for the other side.
--------
¹ Prior comments on this subject can be found here and here.
² Donald Trump was pretty much incompetent at governing, there is not much to say about his efforts.

Why Plessy v. Ferguson – and What Might Have Been

Earlier this month was the 125th anniversary of the decision in Plessy v. Ferguson.  The New York Times had an op-ed by Peter Canellos on the only justice to dissent in Plessy: Justice John Marshall Harlan.¹

In his article, Mr. Canellos said this of the Supreme Court’s decision in Plessy:

“The Supreme Court decision in Plessy v. Ferguson … is duly remembered as one of the great abominations in legal history.  By endorsing the notorious separate-but-equal doctrine, it consigned most African Americans to a state of rank oppression.  In the space of no more than 5,000 words, it violated the plain language of the Constitution, engaged in expansive racist dissembling and defied the outcome of the Civil War.”

Writing Constitutions – And Judging Those Who Write Them

This week’s Economist has a review of Linda Colley’s new book on the history of written constitutions, The Gun, the Ship and the Pen.  The book covers the writing of constitutions from the middle of the eighteenth century to the present.  According to the review:

“Above all, Ms Colley argues, the need for innovative, written constitutionalism was driven by the evolving nature of war. … Governments’ need for ever-more manpower to fight these wars – and ever-growing tax revenues to pay for them – led to crises at home that could only be tackled by the concession of new rights and promises of wider political participation. … 

A Thought on Using the 25th Amendment to Get Rid of President Trump

If you use the 25th Amendment for a purpose for which it was not intended, even if it is a really good purpose, do not be surprised if you are not happy the next time the 25th Amendment is used for a purpose for which it was not intended.

The Washington 180 – Part Two: Special Counsel

A week and a half ago I wrote about what I called “The Washington 180.”  In that post, I talked about the issuance of nationwide injunctions by federal district courts and how Democrats and Republicans felt about them – and how their opinions might change once Joe Biden is inaugurated.  Democrats who thought it was great when federal district courts issued nationwide injunctions to stop things the Trump administration was trying to do might not like it so much if a federal district court issues a nationwide injunction against something the Biden administration is trying to do.  On the other hand, Republicans who thought it was horrible when nationwide injunctions were issued by federal district courts against Trump administration actions might think it’s great if they are issued against the Biden administration.

Here is another Washington 180 that will be coming: special counsels.  Democrats loved special counsels when Robert Mueller was investigating Russian interference in the 2016 election and Russia-Trump collusion.  Democrats thought special counsels were a necessary check.  They warned Republicans – and President Trump – not to interfere with the Mueller investigation.  Republicans didn’t agree, to say the least.

The Washington 180 – Once Again

With Joe Biden being elected President and the Republicans very possibly keeping a majority in the Senate,¹ we may have another “Washington 180” coming up next year. 

After the Republicans took the House in 2010, Barack Obama couldn’t get Congress to pass his agenda.  When Congress wouldn’t pass the laws he wanted, President Obama turned to what he called his “pen and phone.”²  Sometimes, departments and agencies followed the Administrative Procedure Act and adopted formal regulations.  Other times, they just issued new interpretations of laws or prior regulations.  Or they sent so-called “Dear Colleagues” letters to state and local governments setting out new rules, with an implied threat to cut off federal funding if they didn’t follow the new rules or standards.

Supreme Court or Supreme Election Board?

Three weeks ago, I asked “Will Courts Be Changing Voting Rules Right Up to Election Day?”  Since then, some of the more extreme examples I mentioned in that post have been walked back.  On Monday night, the Supreme Court upheld, by a 5 to 3 vote, a decision by the Seventh Circuit Court of Appeals that overturned a federal district court decision in Wisconsin to extend the period for getting absentee ballots back to the election board until six days after Election Day.  (Wisconsin law provided that absentee ballots had to be received by Election Day.)   

What I wanted to talk about here are a couple of things Justice Elena Kagan said in her dissent in that decision.  Justice Kagan said: “As the COVID pandemic rages, the Court has failed to adequately protect the Nation's voters." and "[T]he Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic condition.”

Will Courts Be Changing Voting Rules Right Up to Election Day?

Last Friday, The Wall Street Journal had an editorial listing what I assume are just some of the lawsuits going on across the country to change voting rules for this November.  In some of these lawsuits, judges have extended the date by which ballots that are postmarked as of election day can arrive at the election authority and still be counted.  In others, courts have held that ballots received by some new court-set deadline are to be counted even if they don’t have a postmark.  The deadline for receiving ballots has been extended a few days in some states.  In Michigan, it has been extended until two weeks after the election. 

Which raises the question: Who is supposed to decide the rules for elections these days?  It used to be that legislatures would pass laws setting rules for voting; i.e., when ballots needed to be postmarked; when they had to be received; etc.  But things have changed.  Now it seems like courts are doing the deciding in a lot of states.  The question is: Why?