What the Supreme Court Dobbs Case Leak Portends

The leak on the Dobbs case has caused all sorts of wailing, gnashing of teeth and accusations that the current court is an "evil, racist, classicist, Christian-supremacist, activist court" (yes there's a lot of tweets out there many by people who should or do know better making that assertion).

The problem, of course, is that the Roe court was itself activist as heck (whether it was evil depends on your point of view). The Justices at the time announced they had found the constitutional right to an abortion "in a riddle, wrapped in a mystery, inside an enigma".  Actually they didn't, and instead they discovered it in a penumbra emanating from the Bill of Rights, which is much the same thing, really.

While Roe has been law for 50 years, it froze the abortion debate, satisfied no one, and only hardened the sides to it.  It has not allowing any functional debate to move through the democratic process to help the matter be resolved or find a workable middle ground, and being based on such a flimsy to almost non-existent reasoning that they insist is now a "super-precedent" just made everything worse.

It's led to both sides going to extremes, and there's no sign of these extreme reactions subsiding and if anything both sides are doubling-down.

For example, New York and Virginia now have laws where abortions can take place up to the very moment of birth, and a baby can still be killed if it survives an abortion attempt (at least they didn't go quite as far as permitting the ol' fashioned 'swing 'em by the heels and bash their head into a wall' technique, at least not yet). Interestingly, in New York the number of abortions exceeded the number of live births between 2012-2014 - 285k to 237k. Clearly abortion is very popular in New York.

Then we have other states, mainly in the south, where if upheld, a woman will need to get a pregnancy test and decide within 14 weeks of doing the deed if she wants to have an abortion -- regardless of whether the deed was done willingly or not.

In short, there's not a lot of middle ground currently, and both sides are viewing it as an all-or-nothing choice and refusing to compromise or come to any sensible and legally sustainable position.

If the decision remains substantially similar to the February draft (and leaking it was likely a ploy to put pressure on the Court to not do so), and it does overturn Roe, that doesn't make abortion illegal in the United States. 

Instead, all that happens is the matter unfreezes and goes back to the states and people in their own states can then democratically decide what they want about abortion in their state. Democracy right?  The whole power to the people thing?

Now, if proponents of abortion don't like that, and from the current protests and hissy-fits going around the Internet right now they really, really don't -- they need to read up on the process of amending the Constitution to actually add abortion to it, thus making it actually a constitutional right.   

It will take actual work to get such an amendment passed, and it is by no means certain, but that's how you would properly add a right to an abortion to the Constitution.

But, instead of doing the work all these years to make it an actual Constitutional Amendment, the proponents of abortion have been relying on the very thin reed of what even its proponents agree is a really legally flimsy and almost untenable decision that was simply an activist court making an outcome-based ruling for what they wanted rather than an opinion based on any real solid legal grounds. They've also been constantly pushing the boundary of that decision ever farther.

That decision may finally be facing judicial review from, depending on your point of view, an activist court or a court that is actually analyzing and applying constitutional law to the decision.

No, That's Not How That Works

Now that Biden is the presumptive president-elect.  People are imagining what his policies will be like once he emerges from the basement and sees or does not see his shadow.

USA Today: Biden's approach to tackling COVID-19 will be dramatically different, and quickly apparent

Of course the article argues that Biden will be much more scienc-y in his dealing with Covid 19.  

It claims he will be a much better communicator and of course use the best science.  

But then it really starts to go off the rails and argues he legally can require a national mask mandate:

Biden has said he would be in favor of requiring every American to wear a mask when in a public place or business.

Some question whether the president would have the authority to do that, given the limitations on federal executive power. But Dr. Michael Ewer, a visiting professor in the Health Law and Policy Institute at the University of Houston Law Center, says Biden does.

"He has the power to say we will have a more uniform approach to public health measures," Ewer said. There will be people who oppose that, he said, but "do they have a leg to stand on legitimately? The answer is, from a public health standpoint, almost certainly not."

The answer from a legal standpoint, pace the professor,  is most certainly YES there is a leg to stand on.  So, what legal basis does this professor of Health Law and Policy argues that lets a president enforce a national mask mandate?

The Constitution gives the federal government the power to protect the general welfare, Ewer said, and the courts have generally supported restrictions on individual rights to that end. Seatbelt and no-smoking laws are examples.

Blink.  And this guy is a law professor and he's raising the general welfare clause canard and seatbelt and no-smoking laws as examples? Seriously?

The general welfare clause of the constitution is not a blank check to the Federal Government to do whatever it wishes, it's a spending power, not a regulatory one.  Nor have the courts "generally supported restrictions on individual rights to that end".

Seabelt laws are actually set at the state level and encouraged by the Federal government through threats of withholding funding for related items (highway funding in the case of seatbelt laws).  No-smoking areas are similarly set by the states, or if a federal building the federal government to regulate their own property.

While Biden could conceivably find some constitutionally approved hook to restrict state spending unless in return requiring the states to pass laws for compliance with a mask mandate such as perhaps some medicare funding or such. But, it is not going to constitutionally fly to just claim he can order the entire nation to wear a mask and it can be done under the general welfare clause.

Not that the progressives ever let the constitution stand in their way or anything but this guy is a law professor of all things and really should know better. After all, this is first-year law school stuff.

Sheesh.

Criminal Charge Dropped Against The Barber, But Whitmer's Vindictive Licensing Action Continues

Some good news for Karl Manke, the barber who safely defied Gov Half-Whit's executive orders against letting barbers cut hair:

The Detroit News: Charges dropped against barber who defied Whitmer, reopened shop

Misdemeanor charges are being dropped against a Michigan barber who defied Gov. Gretchen Whitmer and reopened his shop last spring during the coronavirus pandemic, a lawyer said Monday.

The case against Karl Manke of Owosso fizzled after the Michigan Supreme Court on Oct. 2 said Whitmer used an unconstitutional law as the foundation for emergency orders to control the virus, David Kallman said.

 However, the licensing action, still based on the violation of the now unconstitutional executive orders continues.

State regulators still are trying to revoke his barber license, Kallman said. A hearing is set for Nov. 19.

One would hope the state regulators will realize the same thing the Owosso prosecutor does - that the license enforcement action is based on the same orders that have been declared unconstitutional by the Michigan Supreme Court.  But instead it seems they want to continue the administrative process as punishment.

The Union And The Bridge Owner

It's Baptists and Bootleggers Michigan Style as Ambassador Bridge Owner Matty Maroun bankrolls the UAW's job killing Proposal 2 in return for UAW member votes on Proposal 6.

Proposal 2 will enshrine Unions - both public and private - and collective bargaining in the Michigan Constitution and trump numerous laws and send us into the union-infested dark ages. basically it will drastically tilt the scales in favor of Unions, reducing even further Michigan's appeal as a place for businesses to come and employ people.

Proposal 6 will require a public vote before any international crossing could be built, slowing down commerce and the Michigan economy and leaving a main international trade artery and profits under the control of Maroun.

Vote No on both.

While you're at it, Vote YES on 1 and NO on 2,3,4,5 and 6 - good descriptions of each of these execrable proposals and the reasons for voting NO on 2-6 are presented here.

The Detroit Free Press: UAW, Moroun said to be allies in battle to block new U.S.-Canada bridge

The UAW and Ambassador Bridge owner Manuel (Matty) Moroun are discussing a deal that calls for the billionaire to pump cash into a labor-sponsored ballot initiative in exchange for the union's support for a Moroun-backed campaign to block a new international bridge from Detroit to Windsor, according to a senior auto executive and several local political leaders.

Note that the UAW is sacrificing what will be a lot of good paying and most undoubtedly union construction jobs on the bridge in return for money up front to bolster their position long-term even as such a measure will make Michigan far less employer and hence employment friendly.

Maroun, of course, is probably harming his companies in the long-term, assuming there's a union presence there, in return for the union's support to block competition to his Ambassador Bridge and thus maintain his monopoly power.

Both proposals are bad for the public, who will be the ones really bearing the costs if Proposals 2 and 6 pass.

Democrats Getting all Originalist on the Constitution....

Normally Democrats aren't very concerned if their proposed laws are Constitutional.

Heck, for the most part they're aren't concerned much about the Constitution except how it may prove an inconvenient stumbling block in their plans or how the Commerce Clause lets them ignore the rest of the document .

For those with short memories see Nancy Pelosi on the Constitution and Obamacare - "Are you Serious, Are You Serious?"

But when their agenda is stymied, Democrats suddenly go into full-tilt originalist constituional scholar mode, searching for snippets of the Constituion that they can use to support their goals.

Remember the advice for Obama to use the 14th amendment to override the debt limit couldn't stop him from issuing new debt?

Eugene Volokh over at the Volokh Conspiracy in his post An Odd Proposal for Recess Appointments
blogs about the latest originalist proposal by lefty Michael Tomasky to have the President adjourn Congress so he can make recess appointments, which those nasty Republicans have stymied by not adjourning the House.

Funny how Democrats start forgetting about the "living, breathing document school and suddenly start reading the Constitution in scholarly detail with every word given meaning when they need to do so.

The comments to the post, especially those from the left side of Volokh's readership, are quite fascinating.

Update: Ann Althouse has a post on yet another example of this phenomenon in action: Oh, look! A liberal is talking about whether something can be "squared with the Constitution."