Topic: "Legends, Lessons and Legacies: The Birmingham Jewish Community's Impact on the Civil Rights Movement"
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Will America's independent Judicial system save America from the likes of Obama and Biden and restore some vestiges of our much abused constitutional process?.
Mr. President, Meet the Law
Courts start to tell Biden he can’t rewrite federal law through executive action.
By Kimberley A. Strassel
The Beltway headlines are almost entirely focused on the 50-50 Senate, the body that could derail Joe Biden’s legislative agenda. But take note of that other potent Biden antagonist, one that is proving an equally big problem: the law.
A federal judge in Louisiana this week blocked the Biden administration’s executive order imposing a moratorium on new oil and gas leases on federal lands. The order, which Mr. Biden issued on his first day in office, claimed the authority to override the law, established procedure and state interests by “pausing” already scheduled lease sales. Democrats and the media, in thrall to the administration’s climate posturing, barely bothered to contemplate the legality.
But the attorneys general of 13 states, whose economies could be harmed by the moratorium, immediately sued. Judge Terry A. Doughty issued a nationwide preliminary injunction blocking the order. The federal laws in question require the government to engage in lease sales and don’t grant authority to the president to hit pause. The “power to ‘Pause’ lies solely with Congress,” Judge Doughty observed. He also noted that the moratorium violated the Administrative Procedure Act, which governs the process by which the executive branch takes regulatory action.
This follows last week’s decision by a federal judge in Wisconsin to impose a nationwide temporary restraining order on a program in the Democrats’ Covid-relief bill that provided loan forgiveness only to black and other minority farmers. That potentially violates constitutional restrictions on racial discrimination. And the mid-May decision by a federal judge in Texas to halt a Small Business Administration program that put “socially and economically disadvantaged people” first in line for Covid grant money for restaurateurs. And the early May decision by a federal judge in the District of Columbia to throw out the Centers for Disease Control and Prevention’s national eviction moratorium, imposed during the Trump administration and renewed soon after Mr. Biden took office, on grounds that the agency lacked legal authority.
There’s potentially plenty more where those came from. States are suing over a separate Biden executive order to dictate a “social cost of carbon,” over the relief bill’s provision barring states that accept Covid relief from cutting taxes, over the administration’s restrictions on ocean cruises, and over immigration policy, to name a few. Industry groups, conservative legal outfits and private parties are also filing court papers like mad.
Democrats can take part-credit for the legal onslaught. While it is usual for attorneys general of the opposing party to challenge federal rules and laws, the left took it to a new level in the Trump years. By one analysis, Democratic attorneys general filed 35 multistate lawsuits against the federal government in 2017 alone (compared with the 46 suits Republican attorneys general filed in the eight years of the Obama administration). The “resistance” judiciary can also take a bow. While conservative judges are normally reticent to issue nationwide injunctions, the liberal bench worked its socks off to normalize the practice in the Trump era—and now is apparently getting its wish.
Mr. Biden’s problem, as this column warned in December, is that he’s likely to face a tougher legal road than Mr. Trump or Mr. Obama did. That will be primarily because this White House—even more so than Mr. Obama’s—sees itself as having the power to rewrite the law through executive action. Pushed relentlessly by a progressive left that wants the moon, it is enacting a regulatory agenda that violates basic statutory and constitutional authority. In his first 100 days in office, Mr. Biden signed more than 60 executive actions, many sweeping in character. His regulatory agencies, under the guise of preventing climate change, are ramping up to run nearly every sector of the economy by executive fiat.
Yet by contrast with the Obama years, we now have far more judges who care about the separation of powers and the rule of law. That includes the 234 nominated by Mr. Trump and confirmed by the Republican Senate under Mitch McConnell. Many of these judges came up through the Obama regulatory onslaught and cut their teeth on administrative law. They have both the expertise and the confidence to challenge executive power grabs.
According to tracking from the liberal American Constitution Society, of the 12 regional federal appeals-court circuits, eight now have a majority of judges appointed by Republican presidents. Two are tied, while two have a majority appointed by Democrats. The Fifth Circuit, which would hear any appeal of Judge Doughty’s Louisiana order, has a 12-4 Republican-appointed majority. Recent vacancies give Mr. Biden the opportunity to flip back a few circuits, but not for some time, and even then, those circuit decisions are reviewable by today’s more conservative Supreme Court.
It’s anyone’s guess how successful Mr. McConnell and Republicans will be in checking a radical Biden agenda in the months ahead. What’s beyond doubt is that their decision in the Trump years to make a priority of sound judicial appointments is already paying dividends.
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Dov Fischer would agree:
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President Joe Biden is not doing so well. After a laughable performance at the G7 summit, he is facing...
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