Earlier this week, we learned, from a conservative justice, that federal courts can seize control over immigration law and indefinitely prevent Americans from deporting criminal aliens. Today we learned that a federal court can force states to donate taxpayer funds to a criminal enterprise harvesting baby organs. If you think the bullies on the bench will stop their tyranny on their own, think again. And if you think that by merely “appointing better judges,” we will fix the constitutional crisis caused by the judicial power grab, you are not paying attention.
Yesterday, a three-judge panel of the Sixth Circuit Court of Appeals, regarded as one of the “better” circuits, ruled that Ohio cannot deny funding to Planned Parenthood. Judge Helene White, a George W. Bush appointee, wrote the unanimous opinion upholding the 2016 ruling of a Cincinnati federal district judge that the 2016 law passed by the legislature is unconstitutional and a violation of due process. While the state may deny funding for abortions, White noted, it cannot cut off all contracts for therapeutic abortions and other health care services.
The other two judges who signed on to the opinion were Eric Clay, a Clinton appointee, and Eugene Siller, a George H.W. Bush appointee. Once again, this demonstrates that there are super-majorities of liberals appointed by presidents of both parties on almost every circuit, and there will continue to be such majorities even if Trump serves two terms. The district judge who originally placed the injunction on the Ohio law, Judge Michael R. Barrett, was also a George W. Bush appointee. White, the opinion’s author, was originally a Clinton appointee but was ultimately confirmed under Bush because of a deal with Democrat senators from Michigan after Democrats took control of the Senate in 2006.
President Trump has, thus far, filled three vacancies on this panel, but none of them were chosen to preside over the case. Once again, the judiciary is a dead end and one-way street for conservatives. The capacity of good judges to do good is nowhere near the capacity of bad judges to do bad. Once we agree to judicial supremacy, the Left has endless resources to game the system and get enough judges willing to abuse rules of standing and constitutional construction to achieve their outcomes.
The legacy of Dred Scott and the ruin of the First and Fourteenth Amendments
Obviously, the court’s assertion that funding is not going towards abortion is absurd, because the extra taxpayer funds used to fund non-abortion services drives these clinics’ business model and enables them to conserve funding for abortions. But either way, since when did a private entity have a constitutional right to any taxpayer funding?
It would simply shock our Founders or anyone who lived before this generation that due process, which means you have the right to a fair trial before being convicted of a crime, somehow means that a private company is entitled to taxpayer funding for any service. Would the courts rule that a white supremacist organization is entitled to state contracts for services that are non-germane to their racialist agenda?
And what does Planned Parenthood do with our money?
Tax-payer funded Planned Parenthood is spending $30 million on the 2018 midterm elections alone. #DefundPP
— Alana Mastrangelo (@ARmastrangelo) April 19, 2018
What happened to the First Amendment speech and association rights of taxpayers?
Particularly jarring in this case, the court drew upon a similar Tenth Circuit ruling that denying funds to Planned Parenthood violates the Fourteenth Amendment. Thus, a clause that was designed to grant basic liberties to freed slaves after the Dred Scott ruling is now being used to force taxpayers to fund baby-killers. We have Dred Scott all over again.
Rep. James F. Wilson, R-Iowa, the chairman of the House Judiciary Committee back in the 1860s who helped draft the Fourteenth Amendment, spoke emphatically that it was “establishing no new right, declaring no new principle.” “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen,” declared Wilson in 1866. Yet now this amendment is being used to kill American babies and grant rights to illegal aliens to access baby-killing centers that are funding by taxpayers.
The judicial supremacists believe the Fourteenth Amendment not only creates a right to an abortion, but that, together with the First Amendment, it creates a “right” for a private organization under criminal investigation for trafficking baby parts to secure taxpayer funding. Meanwhile, the same courts that believe that the refusal to publicly fund a private criminal enterprise with taxpayer funding is tantamount to blocking First Amendment rights definitely support taking action (imprisonment or fines) against private business owners who don’t serve gay weddings.
There are no words to describe the degree of extremism involved in concocting a First Amendment free speech claim that defends not a negative right to be left alone without imprisonment, but a positive right to taxpayer funding. These are the same judges who believe that a private citizen doesn’t have the First Amendment right to merely be left alone and run his business in accordance with his conscience and must “bake the dang cake,” yet a private organization has the right to someone else’s money.
Or think about it this way: The courts are now saying that states cannot use their tax funds as they see fit and must give to abortion organizations, yet states have a right to federal funds to give to illegal aliens! Just last week, a California judge ruled that the federal government can’t even factor in a jurisdiction’s cooperation with federal immigration law as part of a points system determining the amount of law enforcement grants doled out from DOJ.
The pro-life movement is missing the trees for the forest
Conservatives are asleep at the wheel. What we don’t understand is that elections have become meaningless until we deal with the crisis of the courts assuming the role of a legislature and rewriting the Constitution in the most backward and tyrannical way imaginable. Even in states where we have super-majorities in legislatures, and on the rare occasion when Republicans are actually willing to challenge the status quo, courts assume the power of automatic judicial veto. Because courts have said that A) they are the final arbiter of every political question and B) the platform of the Democrat Party is in the Constitution (while the unambiguous liberties are not), we have a constitutional crisis that transcends every other political controversy.
Any candidate or member of Congress who tells you he is pro-life but is not committed to immediate and categorical judicial reform is full of hot air. The Supreme Court already made it clear in Whole Woman’s Health v. Hellerstedt that not only is abortion a fundamental right, but states cannot enact reasonable regulations on clinics that will in any way limit access to abortions. The courts are saying that abortion is such a super-right (while the Second Amendment is not), that illegal aliens are entitled to direct access to an abortion clinic, and that HHS must inform them of the right. They are even forcing Trump to coerce employers into covering abortifacients. For anyone to call themselves pro-life while watching the jurisprudence of death and doing nothing to limit the jurisdiction of even the lower courts is a joke. The life issue has become nothing more than a fundraising racket.
Republicans will run in November on the racket of keeping the Senate for the purpose of judicial nominees. But unless we reclaim power for Congress, there is no purpose in electing members to the Senate. In 1812, the Supreme Court ruled that the lower courts “possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer.” It’s time to exercise that power in Congress.
It’s sad enough that the Stephen Douglas view of the Supreme Court’s power – that its every utterance on a political issue is “the law of the land, binding on you, on me, and on every other good citizen, whether we like it or not” – has prevailed over Abraham Lincoln’s view. We need not extend the judicial supremacism to lower courts. And if Congress fails to act, states should heed the advice of Hamilton, who said that acts of the government (which includes these courts) not pursuant to its constitutional powers are “merely acts of usurpation, and will deserve to be treated as such.”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.