Judicial: Recent Supreme Court Rulings, and the U.S. Constitution

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

Recently, there have been some huge rulings from the Supreme Court of the United States.  Let's go over a few, shall we?

○ JANUS v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL. - In a 5-4 ruling, Government workers, as a result of this ruling, can no longer be compelled to pay "fair share" fees to support collective bargaining and other union activities.  The employees have a right not to underwrite political activities which go beyond contract negotiations over pay and benefits.  These are regarding fees paid by non-members.

“This procedure violates the First Amendment and cannot continue,” Associate Justice Samuel Alito wrote in the majority opinion. “Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

The ruling only applies to public-sector employees, but may over-spill to private sector unions, and may be a move that could eventually lead to a right-to-work condition throughout the country, which may disallow the practice of mandatory union membership in order to work.

This ruling overturns the Abood v. Detroit Board of Education in 1977, which allowed States to compel public employees to pay money supporting collective bargaining and any other union activities, even if they were not union members.

The key plaintiff in the more recent case was Mark Janus, an Illinois state employee, who pays about $550 annually to the powerful public-sector union known as AFSCME. While not a member of the union, he is required under state law to hand over a weekly portion of his paycheck.

"I work for Health and Family Services, and I'm forced to pay money to a union that then supports political causes that I don't agree with," Janus told Fox News.

President Trump cheered the court decision on Twitter, writing: “Supreme Court rules in favor of non-union workers who are now, as an example, able to support a candidate of his or her choice without having those who control the Union deciding for them. Big loss for the coffers of the Democrats!”

Justices split 4-4 on the issue in a similar case two years ago, just after Antonin Scalia died. But with Neil Gorsuch now filling the vacancy left by Scalia, he was seen as the deciding vote this time.

Labor leaders oppose so-called "free riding" by workers like Janus, however, and say they have a legal duty to advocate for all employees.

Nearly 30 states have "right-to-work laws" that restrict forced fees.

The ruling was constitutional, and within the federal court's authority.  In reality, public sector unions, or at least the federal unions, are a conflict of interest and are unconstitutional.  The ultimate step in the right direction would be to eliminate public sector unions overall.

○ NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. - California was the leader in the movement to silence pro-life pregnancy centers, and compel their speech.  A.B. 775 in California forced these pregnancy centers to advertise abortion centers on all of their literature, and in the facility.  The disclosure that these centers were being compelled to post was, "California provides free or low-cost abortion and contraception services," and then an address for the nearest abortion clinic was required to accompany it.  

In a 5-4 decision, the U.S. Supreme Court struck down the California law mandating that pro-life pregnancy centers advertise where clients may get an abortion, which also struck down all other similar State laws around the country.

The message from the Supreme Court?  Government can’t compel citizens to promote messages they don’t agree with.  This ruling may also have a huge impact on other issues, such as whether or not a cake baker may be compelled to place certain messages on a cake they may not agree with politically or morally.

“No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion,” Michael Farris, who argued the case at the Supreme Court, said in a formal statement following the decision.

“In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion,” said Farris, who is president, CEO, and general counsel of the Christian legal group Alliance Defending Freedom. “The Supreme Court said that the government can’t do that, and that it must respect pro-life beliefs.”

In the majority opinion, Justice Clarence Thomas wrote that the state law “unduly burdens protected speech,” and in a concurring opinion, Justice Anthony Kennedy said the government can’t compel citizens to promote a message they don’t agree with.

“Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” Kennedy wrote. “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

Thomas and Kennedy were joined in the majority by Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch. Roberts, Alito, and Gorsuch also joined in Kennedy’s concurring opinion.

The California law also required unlicensed pregnancy centers, which offer adoption referrals and nonmedical resources other than abortions to expectant mothers, to include “large disclosures about their nonmedical status” in their advertising.

In a statement posted on Twitter, the National Abortion and Reproductive Rights Action League criticized the decision, saying that the Supreme Court “ruled that unlicensed fake women’s health centers are free to dress up as doctors and deliberately lie to women about their #reprohealth.”

In my experience, explaining that the moving being inside a woman's womb is a "baby" is not a lie, nor fake.  For pro-life centers with connections to doctors, therefore allowing them to operate with ultrasounds in place, nothing usually needs to be said.  The image of a baby stirring in the womb, or the sound of its heartbeat, is usually enough to encourage a woman to change her mind about having an abortion.

Tony Perkins, president of the Family Research Council, said in a written statement that the decision is common sense.

“The U.S. Supreme Court has ruled the state of California was clearly in the wrong in this case and all Americans, whether pro-life or not, should be relieved with the Supreme Court’s decision,” Perkins said. “What if the government made a vegan grocer post ads for the local butcher shop? Everyone would agree that that’s not fair. This case is no different and thankfully, the court recognized that fact.”

The ruling was constitutional and the federal court has the authority over the case, in my opinion, not necessarily because of the First Amendment connection, but because in the 14th Amendment it states that States cannot make laws that "deny to any person within its jurisdiction the equal protection of the laws."  A.B. 775 did not apply to all facilities, it singled out opponents of abortion.  That said, it is, of course, common sense that government should not be able to compel your speech or business practices in such a manner that it violates your conscience or moral standing.  Then again, we know for the supporters of A.B. 775 it wasn't about the rule of law, or equal protection.  It was simply about forcing into place their ideology, and doing whatever they could to silence the opposition.

"The meaning of peace is the absence of opposition to socialism." -- Karl Marx.

○ TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. HAWAIIET AL. - The case was not really challenging President Trump's ability to execute the laws of the United States as provided in Article II of the United States Constitution as much as it was challenging federal laws on the books, and if they are "just" laws based on an ideological template that claims restricting anyone from entering the United States for any reason is somehow racist or unconstitutional.

In Article I, Section 9 of the U.S. Constitution the Congress is authorized to make laws prohibiting persons coming into the United States for any reason they feel is necessary.  President Trump, when it came to his executive order that became known as the "Muslim travel ban" by liberal left circles, was actually in line with constitutional authority.  President Trump was, according to the Trump team in the case in question, "Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he determined that certain restrictions were necessary to 'prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information' and 'elicit improved identity-management and information-sharing protocols and practices from foreign governments.' The Proclamation imposes a range of entry restrictions that vary based on the 'distinct circumstances' in each of the eight countries. It exempts lawful permanent residents and provides case-by-case waivers under certain circumstances. It also directs DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the President determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals."

The Supreme Court ruled to uphold President Trump's travel restrictions executive order, a ruling that may also carry with it sweeping implications regarding immigration and refugee laws, and how the President executes those laws through executive orders, and through agencies who operate under the executive branch of government.

The 5-4 ruling reversed a series of lower court decisions that struck down the ban as illegal or unconstitutional.

"In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country," the president said. "This ruling is also a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country."

According to anti-Trump Democrats the president vowed to ban Muslims during the 2016 presidential campaign and made similar statements on Twitter after his election. The high court said those statements did not constitute evidence of religious discrimination.

Chief Justice John Roberts issued the opinion, explaining the ban's restrictions are limited to countries designated by Congress or prior administrations as posing national security risks. He noted that Trump's latest version followed a worldwide review process by several government agencies.

"The proclamation is squarely within the scope of presidential authority," the chief justice said. Claims of religious bias against Muslims do not hold up, he said, against "a sufficient national security justification."

Protesters immediately went into action, calling the ruling "racist" and "fascist."

Attorney General Jeff Sessions hailed the court decision as "critical to ensuring the continued authority of President Trump — and all future presidents — to protect the American people."

In a concurring opinion, Justice Clarence Thomas went further than Roberts and said the court should consider declaring that district courts cannot block actions such as the travel ban on a nationwide basis. Sessions asked the high court to strike down such a nationwide injunction against the administration's effort to withhold funds from "sanctuary cities" that oppose federal immigration policies.

The liberal left stands by their claim that the travel ban executive order is based upon religious discrimination, and unfairly targets Islam.  Justice Sotomayor claimed the Supreme Court's decision is a double-standard that "masquerades behind a facade of national-security concerns" and inflicts "pain and suffering ... upon countless families and individuals, many of whom are United States citizens."

She noted that the court ruled this month in favor of a Colorado baker who refused to serve a same-sex wedding because government officials were hostile to his religious objections.

"In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom," Sotomayor said.

The lower courts that deemed the executive orders "unconstitutional" used religious discrimination as an excuse for their rulings, explaining that it was not so much the ban as much as it was about the purpose behind President Trump's actions.  They claimed they knew the reason behind the "travel ban" because Trump's words as a candidate for President of the United States revealed his purpose, that he was specifically targeting and banning Muslims based on those words, and his initial focus was on six majority-Muslim nations which allegedly confirms his discriminatory reasoning.

Judges and legal analysts who defended the travel restrictions executive orders argued that Trump's words cannot form the basis for a constitutional violation. It takes too much interpretation, they said, to read anti-Muslim bias into an executive order or proclamation that, on its surface, is devoid of religious content.

From a constitutional view, it doesn't matter if the executive orders target Muslims, or not.  The only place in the U.S. Constitution that addresses "religious tests" is in Article VI., where the law of the land disallows religious tests in regards to holding government or political office in the United States.

As for the lower courts striking down the executive orders, Justice Clarence Thomas was correct in addressing that issue, for there is no authority listed in the U.S. Constitution allowing the courts to strike down executive orders.  The court system was not designed to be a check against the President.  That duty belongs to Congress, the States, and We the People.

Nonetheless, the executive orders were not written in a manner that reveals any kind of religious discrimination, and based on the language they were written to protect the United States from refugees or migrants who may pose as a national security risk to the country based on their connection to terrorism or anti-American radical belief systems as deduced from their individual histories and the political environment from which they are coming.

Article II gives the President the authority to execute the laws of the country, and 8 U. S. C. §§1182(f) and 1185(a), of which the executive orders were written to execute, are existing laws on the books.  Based upon that data, alone, the executive orders by President Trump that executes those laws by placing travel restrictions upon persons travelling from certain countries, are constitutional.

○ Rowan County v. Lund - The Supreme Court chose not to hear this case.  By not taking the case, it allows the lower federal court ruling to stand.

The U.S. Supreme Court should have taken this case, not to give a ruling, but to strike down all rulings on this case at the federal level so that the case may be settled at the State level.  While the plaintiffs claim this case falls into federal jurisdiction because it is in regards to the establishment clause in the First Amendment, this assertion is actually wrong.

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  At the time of the ratification of this amendment, eleven States had "established religions," but none of them changed that policy immediately after the ratification of the First Amendment because it did not affect them.  Religion is a State issue, and the federal government has no authority over the issue.

For those who fear that the position I just presented opens the door for theocracies to rise up at the State level, the Framers of the Constitution recognized that a theocracy was not an acceptable form of government in these United States, and that is why in Article IV, Section 4 of the U.S. Constitution it also states that, "The United States shall guarantee to every State in this Union a Republican Form of Government."

In the Rowan County prayer case, the argument stemmed from a local county board that prayed before each session, and three residents who claimed that doing so was in violation of the establishment clause.

Based on the language of the Constitution itself, county commissioners praying before a county board meeting with members of the public present is not a case of "Congress making law."  Besides, even if the claim of separation of church and state claimed by the progressive liberal left was a valid argument, at no time did the commissioners of Rowan County, North Carolina, coerce members of the public to join in those prayers, demand that the prayers must be Christian (even though a majority of the time they were), or demand that you had to be a Christian to attend the meetings or hold office in the county.

I wonder if the county commission was all Muslim, and they were praying Muslim prayers before the meeting, if the same plaintiffs would have brought the same case before the courts.

In July 2017, the Fourth Circuit of the US Court of Appeals erroneously ruled that Rowan County's practice of prayer before county commission meetings is unconstitutional. 

Justice Clarence Thomas and Justice Neil Gorsuch voiced strong dissent about the Supreme Court’s decision to not to take the case regarding legislative prayer.

A May 2015 federal district court ruling not only considered the prayers by the county commissioners unconstitutional, but the court ordered the commissioners to cease the practice of opening meetings with "coercive" prayer.

"Only a virtuous society is capable of freedom." -- Benjamin Franklin

○ HUSTED, OHIO SECRETARY OF STATE v. A. PHILIPRANDOLPH INSTITUTE ET AL. - Each election accusations of voter fraud rise up.  In an effort to combat electoral irregularities, many groups have been calling for the updating of voter rolls, which would include, but not be limited to, the removal of persons from the rolls who are deceased, no longer residents of the State, or do not fit the requirements to be a voter in the United States.  In Ohio, these efforts to purge its voting rolls have been aggressive, and the Supreme Court upheld their efforts by a 5-4 decision.

The court ruled that States may remove people from the rolls if they skip a number of elections and fail to respond to a notice from election officials.

In Ohio, after skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.

While in Article I the manner and procedures of elections are a State authority, Congress may also make laws necessary in relation to elections.  Justice Alito, in his opinion, pointed out that federal law “plainly reflects Congress’s judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved,” and therefore, is sufficient reason to remove the person from the roles.  It is a voter's responsibility to ensure they are listed on the roles.

The liberal justices in their dissent claimed the purging of voter rolls, like Voter ID, is an attempt to suppress the vote of minorities.

Justice Alito, addressing the concerns of the liberal justices, wrote, “The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether” Ohio’s notification program “is the ideal method for keeping its voting rolls up to date.”

“The only question before us is whether it violates federal law,” Justice Alito wrote. “It does not.”

The decision was a victory for election integrity.

The ruling "does give all 50 states the green light to do what Ohio did," said Edward B. Foley, an election-law scholar at Ohio State University’s Moritz College of Law. “But I think that green light is very specific with respect to voter purging and list maintenance.”

If the next case is regarding Voter ID, and the Supreme Court rules in support of that one, as well, it may serve as an incredible setback for those who have been fomenting and protecting voter fraud.

-- Political Pistachio Conservative News and Commentary