Codifying Roe v. Wade is an illusion

CNN writes about the likely futility of codifying Roe v. Wade, assuming the Democrats could do that. They cannot because of the filibuster. CNN writes:

Constitutionally, however, there is a problem with thinking that federal legislation will resolve this issue and keep abortion from returning to the Supreme Court. Even if Congress passes a law codifying Roe v. Wade, that does not mean that the brazen precedent-busting Dobbs Supreme Court will not have five votes to strike down the new law.

That is the problem with those who say that the court is simply returning this issue to the people. If Congress tries to pass a law, either way, that law will likely land right back in the justices' lap. The Supreme Court retains the power to reverse the people's will as expressed in the actions of Congress. That is what the power of judicial review means. To quote the most famous case in constitutional law, Marbury v. Madison, it is for the courts to "say what the law is."

Drafters of any federal Roe protection must not be starry-eyed. First off, people should stop using the term "codifying Roe." The phrase is misleading. Codifying in this case means to enact a statutory right, which is possible, but the term "Roe" refers to a Supreme Court ruling and Congress has no power to reverse a particular Supreme Court ruling and reinstate a precedent that has been overturned.  

In 2000, when Congress tried to overrule Miranda v. Arizona, for example, the court said "no" in a case called Dickerson v. United States: "Congress may not legislatively supersede our decisions interpreting and applying the Constitution." Three years earlier, they said the same thing in City of Boerne v. Flores: "Congress does not enforce a right by changing what the right is. . . [Congress] has no power to determine what constitutes a constitutional violation." In short, the moment a Roe codification is signed by the President, it will be challenged as unconstitutional, and we could be right back where we started -- in the Supreme Court.

That exemplifies the enormous power the Supreme Court has. Congress can codify or make a law as it wishes. But if the Supreme Court says the codification or law is unconstitutional, that is the end of it. 

It is surprising that this point has not been made loud and clear by the mainstream media. Or, surprising that I missed it. The current fascist Republican Supreme Court is just not going to allow any codification of Roe to stand. 

The Christian nationalist attack on truth, secular teaching and church-state separation

The Washington Post writes:

New civics training for Florida public school teachers comes with a dose of Christian dogma, some teachers say, and they worry that it also sanitizes history and promotes inaccuracies.

Included in the training is the statement that it is a “misconception” that “the Founders desired strict separation of church and state.”

Other materials included fragments of statements that were “cherry-picked” to present a more conservative view of American history, some attendees said. In a possible effort to inoculate some Founding Fathers against contemporary political complaints, some slides in a presentation pointed out that George Washington and Thomas Jefferson repudiated slavery; unsaid is that both men held enslaved people and helped worked toward a Constitution that enshrined the practice.

“My takeaway from the training is that civics education in the state of Florida right now is geared toward pushing some particular points of view,” said Broward County teacher Richard Judd, who attended the three-day training. “The thesis they ran with is that there is no real separation of church and state.”

The First Amendment prevents the government from “respecting an establishment of religion, or prohibiting the free exercise thereof,” which scholars widely interpret to require a separation of church and state.

Non-republican scholars interpret the Establishment Clause as requiring a separation of church and state, but Christian nationalists (CNs) do not. Those fascists see no basis for any separation. In essence, CNs believe either that, 

(1) the Establishment Clause has no meaning and no legal vitality, or arguably more likely, 

(2) the Establishment Clause empowers Christianity in government, but disempowers other religions and non-believers in government. 

The latter interpretation is more aligned with core CN dogma, which holds Christianity above all other beliefs and ideologies, religious or not. 

In other fascism news, the ex-president is giving off smoke signals that he plans to run for president again in 2024: "Republicans are bracing for Donald J. Trump to announce an unusually early bid for the White House, a move designed in part to shield the former president from a stream of damaging revelations emerging from investigations into his attempts to cling to power after losing the 2020 election."

It's coming baaack!

Pro-environment fight shifts to the states

After fascist[1] Republicans on the Supreme Court handed a massive win to elites and corporations who profit from polluting, the states are the last line of defense. No doubt there will be disunity. Red states will keep polluting and offloading the human, social and environmental damage to the public, while gushing profits up to the top elites. Blue states will try to do something as long as the pro-pollution Republican Supreme Court doesn't step in and stop the effort. The court can assert the Supremacy Clause, the Interstate Commerce Clause and/or some crackpot fascist legal theory to shut down blue state efforts to deal with pollution and climate change.

The New York Times writes on one hopeful development:

In one of the most ambitious statewide attempts to reduce dependence on plastics, California instituted a new requirement that makers of packaging pay for recycling and reduce or eliminate single-use plastic packaging.

The law, signed by California’s governor on Thursday, is the fourth of its kind to be passed by a state, though experts say it is the most significant because it goes further in requiring producers to both make less plastic and to ensure that all single-use products are recyclable or compostable. Last summer, Maine and Oregon passed the country’s first such requirements, known as producer-responsibility laws.

A key tenet of the laws: The costs of recycling infrastructure, recycling plants and collection and sorting facilities, will be shifted to packaging manufacturers and away from taxpayers, who currently foot the bill.

The California law requires that all forms of single-use packaging, including paper and metals, be recyclable or compostable by 2032. However, this is most significant when it comes to plastic products, which are more technologically challenging to recycle. In addition, it is tougher for people to figure out which plastics are recyclable and which aren’t.

Unlike in other states, California will require a 25 percent reduction across all plastic packaging sold in the state, covering a wide range of items, whether shampoo bottles, plastics utensils, bubble wrap or takeaway cups.  

Under the state’s law, manufacturers would pay for recycling programs and will be charged fees based on the weight of packaging, the ease of recycling and whether products contain toxic substances, such as PFAS, a type of virtually indestructible chemicals that have been linked to increased risk of some cancers.

Federal law like that should have been in place decades ago. But such efforts have been blocked by corrupt politicians that pro-pollution interests have bought with their human and corporate right to "free speech," also known as "campaign contributions."

For context, it has been known for decades that recycling of plastic was nothing more than a mirage (previously discussed here and here). That faux reality was created by a gigantic pro-pollution industry public relations (propaganda) campaign to fool the public into the false belief that plastic was recyclable and being recycled. That was never true, and it will never be true. About 9% of plastic is recycled.

Now the open question is if and when the fascist Republican Supreme Court decides shut down state efforts to deal with climate change. They have the power to do that right now. They also have the mindset to do that right now. One can imagine that companies that profit from their pollution in California have already ordered their lawyers to file lawsuits to block this new law. They expect and just might get the service from the Supreme Court they have bought and paid for.

Footnote: 

1. Labels like neo-fascist, American fascism and the like are no longer warranted. With due respect for those who suffered and died under 20th century fascism, fascism is now a warranted and correct label. The modern Republican Party, its political, social and commercial agendas, its corrupt, anti-democratic tactics and its elites are all full-blown fascist. That terrible reality is on us right now. 

What about the rank and file who support and enable Republican Party fascism? Are they fascists? Just deceived innocents with no responsibility for what they have voted for and empowered? Something else? 

Symbols of deceit: ~90% of plastic isn't recycled -- 

the recycling symbols are a lie

The next front in Republican Party election subversion

The New York Times writes:

The Supreme Court announced on Thursday that it would hear a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions.

The case has the potential to affect many aspects of the 2024 election, including by giving the justices power to influence the presidential race if disputes arise over how state courts interpret state election laws.

In taking up the case, the court could upend nearly every facet of the American electoral process, allowing state legislatures to set new rules, regulations and districts on federal elections with few checks against overreach, and potentially create a chaotic system with differing rules and voting eligibility for presidential elections.

“The Supreme Court’s decision will be enormously significant for presidential elections, congressional elections and congressional district districting,” said J. Michael Luttig, a former federal appeals court judge. “And therefore, for American democracy.”

Protections against partisan gerrymandering established through the state courts could essentially vanish. The ability to challenge new voting laws at the state level could be reduced. And the theory underpinning the case could open the door to state legislatures sending their own slates of electors.

We all know where this is going, straight to neo-fascism and Republican single party rule. The Democrats just might be going extinct before our very eyes. 

Expect that neo-fascist Supreme Court decision to be handed down in June of 2023 at the latest.

The Christian nationalist assault on secular public education and inconvenient historical facts

A key target for Christian nationalist (CN) social engineering is secular public education. CNs need to push secular education aside to establish the myth (lie) in public education that America was founded as a White, Christian country with a Christian constitution. 

The contempt and resentment that CNs have toward secular school teachers is intense. A local news report from Tennessee makes this clear. That report comments:

Hidden-camera video obtained by NewsChannel 5 Investigates reveals a recent closed-door reception with Tennessee’s governor and a key education ally who repeatedly mocks the intelligence of public school teachers and questions whether they really care about what is best for their students.

That ally, Dr. Larry Arnn, president of Michigan’s ultra-conservative Hillsdale College, also takes aim at diversity efforts in higher education, claiming people in those positions have education degrees because they are “easy” and “you don’t have to know anything.”

Throughout the nearly two-hour video, Gov. Bill Lee offers only praise for Arnn, who Lee has invited to set up charter schools across Tennessee. The Republican governor never takes issue with the Hillsdale president’s remarks, nor does he defend the state’s 80,000 public school teachers or the stat’s teacher training programs.

Among Arnn’s provocative remarks:

• “The teachers are trained in the dumbest parts of the dumbest colleges in the country.”

• “They are taught that they are going to go and do something to those kids.... Do they ever talk about anything except what they are going to do to these kids?”

• “In colleges, what you hire now is administrators…. Now, because they are appointing all these diversity officers, what are their degrees in? Education. It’s easy. You don’t have to know anything.”

• “The philosophic understanding at the heart of modern education is enslavement…. They’re messing with people’s children, and they feel entitled to do anything to them.”

• “You will see how education destroys generations of people. It’s devastating. It’s like the plague.”

• “Here’s a key thing that we’re going to try to do. We are going to try to demonstrate that you don’t have to be an expert to educate a child because basically anybody can do it.”

Arnn’s curriculum in Michigan is based on the 1776 Project, the radical right’s and CN response to the 1619 Project that liberals produced. Historians have criticized both 1776 and 1619 as flawed with important errors in historical facts.[1] Currently, Arnn plans to open 50 CN religious charter schools in Tennessee to teach the 1776 version of American history. According to the news report, Governor Lee wants 100 of them. The flaws in the 1776 version of history are of no concern to the CN movement, because that is the version they choose to believe is real.

Note the incoherent irrationality in the CN attacks on secular education teachers. On the one hand CN extremists say secular teachers are ignorant. On the other hand, they say that anyone can teach and no expertise is needed to teach K-12 education. 

One cannot be rational when facts, truths and sound reasoning contradict an agenda based on lies, a false version of reality and crackpot motivated reasoning.

Yes, not all public education teachers are great. Some are undoubtedly incompetent. But that is no excuse for CN elimination of secular education in favor of Dark Ages Christian Sharia and Christian Taliban. We are in the middle of a vicious, brass knuckles culture war. For the most part, it is radical right lies, fundamentalist Christianity and unrestrained capitalism fighting hard and dirty against truth, democracy and civil liberties.

Footnote: 

1. Criticism of 1619 includes this:

On August 19 of last year I listened in stunned silence as Nikole Hannah-Jones, a reporter for the New York Times, repeated an idea that I had vigorously argued against with her fact-checker: that the patriots fought the American Revolution in large part to preserve slavery in North America.  

I vigorously disputed the claim. Although slavery was certainly an issue in the American Revolution, the protection of slavery was not one of the main reasons the 13 Colonies went to war.  

Despite my advice, the Times published the incorrect statement about the American Revolution anyway, in Hannah-Jones’ introductory essay. In addition, the paper’s characterizations of slavery in early America reflected laws and practices more common in the antebellum era than in Colonial times, and did not accurately illustrate the varied experiences of the first generation of enslaved people that arrived in Virginia in 1619.

Criticism of 1776 includes this:

The report, commissioned by the Donald Trump administration, urged America to return to an era of “patriotic education” amid what it called “reckless ‘re-education’ attempts that seek to reframe American history around the idea that the United States is not an exceptional country but an evil one”.

But historians saw it differently.

“The 1776 report is a puerile, politically reactionary document,” stated David Blight, author of the biography Frederick Douglass: Prophet of Freedom. He tweeted: “It doesn’t really use evidence except to employ founding documents and too many quotations out of context.”

Blight wrote that the report’s use of the abolitionist’s historic quote from a 4 July speech on the complications of its celebration for Black people was “so mis-used [he couldn’t] stop laughing.

“Trumpians will eat it up as may Fox News,” he wrote to the Guardian. “No legitimately trained historian or teacher will even be able to read through it all without nausea.”

Acknowledgement: Thanks to Peach Freeze for bringing this news story to my attention 

The wealthy Republican attack on the “Administrative State”

Wealthy Republican capitalists hate regulations. They really do. Regulations tend to impair their profits. Yesterday's Republican Supreme Court ruling that gutted the EPA’s ability to regulate carbon dioxide pollution was a smashing victory for pro-pollution businesses and corporate profits generally. This Republican attack is not just limited to gutting environmental protections.

The victory yesterday is something that wealthy laissez-faire capitalists have been working toward for decades. The public interest and environment are going to receive massive damage in coming years from the unleashing of unrestrained, callous capitalist greed. 

The New York Times comments:

The Supreme Court ruling in the Environmental Protection Agency case on Thursday was a substantial victory for libertarian-minded conservatives who have worked for decades to curtail or dismantle modern-style government regulation of the economy.

In striking down an E.P.A. plan to reduce carbon emissions from power plants, the court issued a decision whose implications go beyond hobbling the government’s ability to fight climate change. Many other types of regulations might now be harder to defend.

The ruling widens an opening to attack a government structure that, in the 20th century, became the way American society imposes rules on businesses: Agencies set up by Congress come up with the specific methods of ensuring that the air and water are clean, that food, drugs, vehicles and consumer products are safe, and that financial firms follow the rules.

Such regulations may benefit the public as a whole, but can also cut into the profits of corporations and affect other narrow interests. For decades, wealthy conservatives have been funding a long-game effort to hobble that system, often referred to as the administrative state.

“This is an intentional fight on the administrative state that is the same fight that goes back to the New Deal, and even before it to the progressive era — we’re just seeing its replaying and its resurfacing,” said Gillian Metzger, a Columbia University professor who wrote a Harvard Law Review article called “1930s Redux: The Administrative State Under Siege.”  

When the United States was younger and the economy was simple, it generally took an act of Congress to impose a new, legally binding rule addressing a problem involving industry. But as complexity arose — the Industrial Revolution, banking crises, telecommunications and broadcast technology, and much more — this system began to fail.

Congress came to recognize that it lacked the knowledge, time and nimbleness to set myriad, intricate technical standards across a broad and expanding range of issues. So it created specialized regulatory agencies to study and address various types of problems.

While there were earlier examples, many of the agencies Congress established were part of President Franklin D. Roosevelt’s New Deal program. Wealthy business owners loathed the limits. But with mass unemployment causing suffering, the political power of elite business interests was at an ebb.

The NYT refers to the wealthy people and powerful businesses that are attacking government regulations as “libertarian-minded conservatives,” but that is the wrong label. It is another example of mainstream media not getting it. These people and companies are greedy, radical laissez-faire capitalists with no social conscience. They are not libertarian-minded conservatives. Real libertarians actually do have some social conscience. In applying that misleading label, the NYT commits malpractice and plays into the hands of powerful pro-greed special interests at our expense.

One is forced to ask, do regulations tend to benefit society and customers more than they impair profits? That is the central question. The business community firmly rejects the idea that government regulations confer more benefits than harm. According to wealthy elites, the businesspeople always know what is best for us, while government always screws things up. That propaganda is a blatant lie. But it works for lots of people with conservative mindsets who have been exposed to decades of capitalist anti-government and anti-regulation propaganda. 

Once again, the destructive power of dark free speech is on display for all who can see it. Many cannot see it.

This radical right capitalist Republican attack on government and society will be at least as damaging to average Americans as the Christian nationalist social agenda will be with its attacks on civil liberties. Loss of civil liberties has already started with loss of abortion rights.  

Things are probably going to get much worse for average people in America. It will likely stay that way for a long time. At this point, all that average people can do is try to save themselves from the coming onslaught to the limited extent it can be averted. Patriotic Americans need to vote against all Republicans and constantly voice opposition to the literally and figuratively toxic Republican capitalist and radical Christian social agendas. 

Qs: Is it unreasonable or inaccurate to argue that the Republican Party, its wealthy capitalist donors and its elite radical Christian nationalists are enemies of the American people? What about the GOP rank and file who support the party?