Rust v. Sullivan<\/em><\/a>, one of the seminal abortion decisions of the Rehnquist Court. The Court noted that Title X itself states that \u201cnone of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning\u201d and then held that the Reagan rule \u2014 which, again, prohibited even abortion counseling \u2014 \u201cplainly allow[ed] the Secretary\u2019s construction of the statute\u201d and that the administration\u2019s break with past regulatory practice was supported by \u201creasoned analysis.\u201d<\/p>\nGiven this on-point Supreme Court precedent, you would think that a judge contradicting it would engage in searching analysis of why the Court\u2019s ruling doesn\u2019t govern the case.<\/p>\n
The Affordable Care Act, for example, does contain provisions prohibiting regulations that \u201cinterfere with communications regarding a full range of treatment options between the patient and the provider\u201d or that create \u201cunreasonable barriers to the ability of individuals to obtain appropriate medical care.\u201d But the ACA\u00a0does not<\/em>\u00a0disturb Title X\u2019s prohibition against use in programs \u201cwhere abortion is a method of family planning,\u201d and that is the key language the Supreme Court used to uphold Reagan\u2019s rule.<\/p>\nOddly enough, Judge Bastian held that the administration\u2019s regulation \u201clikely violates the central purpose of Title X, which is to equalize access to comprehensive, evidence-based, and voluntary family planning.\u201d Yet that \u201ccentral purpose\u201d is unchanged since\u00a0Rust<\/em>\u00a0and was no impediment to Reagan\u2019s rule.<\/p>\nHe called the Trump rule \u201carbitrary and capricious.\u201d The Supreme Court called the Reagan rule \u201cplainly allowed.\u201d<\/p>\n
He claimed that the Trump administration offered \u201cno reasoned analysis\u201d for its regulation, but a virtually identical \u201creasoned analysis\u201d was unequivocally upheld by the Court almost three decades ago.<\/p>\n
As a general rule, it is far more preferable to legislate than to regulate, but when the Supreme Court has specifically upheld remarkably similar regulations \u2014 or when a president is acting pursuant to specific congressional delegations \u2014 it is not the role of a mere district-court judge to wave away precedent. It is especially not the role of a mere district-court judge to increase his reach from coast to coast.<\/p>\n
Moreover, given the relatively glacial pace of even injunction litigation, this same district-court judge knows that he can have his way for months on end as the case winds its way through appeals and as the clock ticks down on Trump\u2019s first term. Judicial overreach and judicial delaying tactics are now the new normal.<\/p>\n
Our nation is moving deeper into contention, division, and stagnation. Thanks to precedents being set now, look for this pattern to repeat itself time and again. Activists and attorneys general from opposing parties will race to favorable jurisdictions, block disfavored policies, then try to hold on for dear life for month after month until the next election.<\/p>\n
There has been a great deal of hand-wringing (especially on the left) about America\u2019s allegedly \u201cundemocratic\u201d institutions. The Senate is under fire now. So is the Electoral College. But I see absolutely no handwringing from those same individuals when unelected district judges defy statutes drafted by the democratically elected Congress or regulations crafted by a democratically elected president.<\/p>\n
\n
The Constitution trumps Congress and the president, of course, but the hallmark of decisions such as Judge Bastian\u2019s is not respect for the Constitution but rather contempt for the administration. Based on the belief that Trump is a threat to America, decisions like this threaten our constitutional order, and they set negative precedents and establish negative practices that will doubtless persist well beyond the end of the present administration. Both sides, at different times, will come to regret the toxic legacy of the judicial #resistance.<\/p>\n
___
\nhttps:\/\/www.yahoo.com\/news\/federal-judge-defied-law-protect-195716159.html<\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-121884","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts\/121884","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=121884"}],"version-history":[{"count":0,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts\/121884\/revisions"}],"wp:attachment":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=121884"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=121884"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=121884"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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