Editorial: End racial discrimination in all iterations

Let’s face it. Racial discrimination is racial discrimination. Calling it affirmative action is just swinging the pendulum the other way.

The Department of Justice recently joined a group of Asian-American students in their lawsuit against Harvard University that claims the school’s use of a subjective “personal rating” in determining admissions discriminates against Asian-Americans.

Attorney General Jeff Sessions said, “No American should be denied admission to school because of their race.”

Harvard officials put out a statement this past week saying they are “deeply disappointed” in Justice’s action, but concluded it was to be expected “given the highly irregular investigation the DOJ has engaged in thus far.” A Justice official said the investigation is still ongoing and might result in a separate lawsuit or other action.

The personal rating is supposed to be based on character and personalty traits, but the lawsuit claims an analysis of data found Asian-Americans had the highest academic and extracurricular ratings of any racial group, but the lowest score on the personal rating.

The Supreme Court upheld affirmative action policies in 2016 in a case out of the University of Texas at Austin. Justice Anthony Kennedy, who announced his retirement earlier this year, wrote the opinion, which said “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

Judge Brett Kavanaugh, Trump’s nominee to replace Kennedy, once described a government program pushing diversity as a “naked racial-spoils system,” and he predicted in a newspaper column that the Supreme Court eventually would rule that “in the eyes of government, we are just one race.”

Earlier this year Trump’s Justice Department rescinded an Obama-era policy that encourages colleges and universities to promote diversity by considering racial quotas.

In his “Dream” speech Martin Luther King, Jr., did say, “I have a dream that one day this nation will rise up and live out the true meaning of its creed, ‘We hold these truths to be self-evident, that all men are created equal.’ I have a dream that one day on the red hills of Georgia, sons of former slaves and the sons of former slaveowners will be able to sit down together at the table of brotherhood. I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice. I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

Racial discrimination is abhorrent in all its iterations.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Free speech issues ‘on the ballot’ in Nevada

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political views might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flower arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in the closing days of this year’s court calendar.

This past week, the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree.

“The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech,” wrote Justice Samuel Alito in the 5-4 opinion. “We have held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’”

Public employee unions that advocate higher wages that require higher taxes are intrinsically political.

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech.

“Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them” wrote Justice Clarence Thomas in the majority opinion. “One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly ‘alters the content’ of petitioners’ speech.”

A little more than a week earlier in a 7-2 ruling the court held Colorado could not force cake shop owner to make a special cake for a gay wedding.

Shortly thereafter. the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.

The state of Nevada, under the direction of Attorney General Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.

Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”

Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Supreme Court hears free speech case

Travel ban about national security, not religious bias

Many of the news articles and opinion pieces penned about the Supreme Court ruling upholding President Trump’s so-called travel ban totally ignored a key word that was at the core of the 5-4 ruling — the verb “to vet,” which appears 32 times in the syllabus, opinion, concurrences and dissents.

The travel ban was not about banning Muslims from entry, but was about restricting travel and immigration from nations that fail to or, due to unrest, cannot adequately document whether individuals from their jurisdictions might pose a threat to public safety.

In the court opinion Chief Justice John Roberts explains:

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.

But the plaintiffs harped on Trump’s campaign stump rhetoric, claiming it was a window into an ulterior motive of religious animus that they claimed was a violation of the Establishment Clause of the First Amendment. For example, Trump once called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

In his concurrence Justice Clarence Thomas observed:

Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. … The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. … And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive.

Roberts pointed out the crux of the rationale for the travel ban was adequately backed up, “The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” … To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.”

Thomas also took the opportunity to thump the lower court judges for engaging in issuing “universal” dictates that no law or constitution grants them the power to do.

The travel ban is and was about national security not religious bias.

Of course, the decision also revealed to Nevada voters where certain candidates stand on this matter. Television station KRNV in Reno quoted both senatorial candidates.

Republican Dean Heller’s office issued a statement saying, “Sen. Heller believes that the Supreme Court got this right. The policy reviewed was significantly narrowed in scope compared to the initial version of the travel ban, and the court’s ruling affirmed its legality based on legitimate national security interests.”

His Democratic opponent, Rep. Jacky Rosen of Las Vegas, said, “Denying individuals entry to the U.S. based solely on religion or nationality is wrong and out of touch with our American values. This travel ban won’t help keep us safe, and I will continue to stand up against this Administration’s ignorant and xenophobic policies.”

Nevada’s other Democratic representatives in Washington joined the chorus in opposing anything any Republican ever does no matter what.

Sen. Catherine Cortez Masto declared, “This decision flies in the face of our nation’s founding principle of religious freedom. President Trump’s Muslim Ban is in direct opposition to American principles and sends yet another prejudiced message to Muslim-Americans, refugees and immigrants.”

Lame-duck Rep. Ruben Kihuen complained, “Today the Supreme Court upheld President Trump’s racist and discriminatory Muslim Ban which further erodes our leadership position in the world and is just another example of the Trump Administration tearing families apart. The United States is made stronger every day through our diversity.”

Rep. Dina Titus sweepingly declared, “Today’s decision upholds a misguided xenophobic ban that does nothing to make us safer. Banning the people of an entire religion from immigrating to the U.S. is a betrayal of our nation’s founding principles of religious freedom and tolerance.”

We assume she missed the part about the ban affecting only 8 percent of Muslims or that people can seek case-by-case waivers.

Protests in front of Supreme Court. (Getty images)

Free speech includes the right to be silent

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political view might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flowing arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in a matter of days.

Today the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree. Justice Samuel Alito writes in the 5-4 opinion:

The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” … The right to eschew association for expressive purposes is likewise protected. … (“Freedom of association … plainly presupposes a free­dom not to associate”) … (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constella­tion, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech. The ruling overturned a 9th U.S. Circuit Court of Appeals ruling.

Justice Clarence Thomas wrote in the majority opinion:

Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly “alters the content” of petitioners’ speech.

A little more than a week ago in a 7-2 ruling the court held the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion and free speech.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against (Masterpiece Cakeshop owner Jack) Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”
Shortly thereafter the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.
The state of Nevada, under the direction of Attorney Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.
Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

Lame-duck Democratic Rep. Ruben Kihuen sent an email saying, “It is disappointing that today’s Supreme Court decision will allow unlicensed facilities to continue misleading women about the health care services they provide. No woman seeking accurate information about her health care options should be lied to, shamed, or denied access to basic medical care. This ruling is a huge setback in our nation’s fight to protect and advance women’s rights and will make it harder for women to access the health care services they need. We must continue fighting to ensure that every woman has the right to make her own health choices and has access to the full range of options.”

Laxalt’s political campaign sent out an email crowing about the two most recent court ruling and rubbing Sisolak’s nose in it:

The Supreme Court has reaffirmed that the government cannot force Nevadans to advocate political positions against their beliefs. We know Steve Sisolak disagrees. Steve said it was “shameful” when Adam visited a Nevada pregnancy care center, and he favors zero restrictions on abortion — a position to the left of most Nevada Democrats. He is benefiting from the government union in this case, AFSCME, that is running over a million dollars in attack ads against Adam right now — attack ads that PolitiFact has called “false.”

These were great victories for free speech. Adam protected pregnancy care centers from a radical California law that would have forced these pro-life centers that offer care for pregnant women to advocate for policies they disagree with. Adam protected workers from being forced to give up their wages to a government union that pays for political lobbying and advertising that they may disagree with.

Steve Sisolak’s fringe agenda is being exposed. This is a great week for freedom of speech in Nevada, and a terrible week for Steve Sisolak’s radical political machine.

Anti-abortion activists celebrated outside the Supreme Court on Tuesday. (Reuters pix via NYTimes)

 

Court breathes life back into 10th Amendment

In a sports book.

What a refreshing concept: Congress may exercise only those powers granted to it by the Constitution, all other powers belong to the states and the people themselves.

In an opinion issued today, Justice Samuel Alito tossed the Professional Amateur Sports Protection Act of 1992, which outlawed sports gambling, though Nevada a couple of other states were grandfathered. The decision was 6-3.

Here is what Alito stated:

The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.

The legalization of sports gambling requires an im­ portant policy choice, but the choice is not ours to make.

 

Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens … The Constitu­tion gives Congress no such power.

The long dormant 10th Amendment lives.

 

Newspaper column: Court case is about free speech, not abortion

This past week the U.S. Supreme Court heard arguments in a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on certain professionals is a violation of the free speech clause of the First Amendment.

NIFLA is the National Institute of Family and Life Advocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices informing pregnant women about state-subsidized free or low-cost abortions.

The law also requires pro-life, religious-oriented unlicensed centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services, significantly increasing their cost to advertise. The law exempts abortion providers, hospitals and other healthcare facilities.

The Ninth Circuit upheld the law.

The case could reverberate in this year’s Nevada gubernatorial election, because Attorney General Adam Laxalt, who is running for the Republican nomination to be governor, signed onto to an amicus brief in the case with 21 other states, challenging the law as an unconstitutional burden on free speech.

According to the donation-funded news website The Nevada Independent, the two leading Democratic gubernatorial candidates, Clark County Commissioners Steve Sisolak and Chris Giunchigliani, have sharply criticized Laxalt for taking sides in the lawsuit, calling him “anti-choice.” Sisolak and Giunchigliani are both donors to the website.

The amicus brief argues the California law is not “an informed consent” law, which the courts have upheld.

“Informed consent is required specifically so that the patient can assess the risks and consequences of a procedure that a doctor is seeking to perform. …” the brief in question argues. “In contrast, a State’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.”

The targeted clinics provide pregnancy tests, ultrasounds, referrals and consultations, which involve little, if any, risk.

The brief concludes, “If there is evidence of wrongdoing on behalf of any of the medical clinics, California may unquestionably enforce those standards through the power of its regulatory authority, like any other State. But enforcing standards does not necessitate a blanket requirement compelling medical clinics to advertise state- subsidized services they do not provide.”

During oral arguments this past week, the questions asked by both liberal and conservative justices indicated they thought the law an overreach.

“If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” asked the court’s newest conservative member, Neil Gorsuch. He later added, “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Conservative Justice Samuel Alito asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech.

“I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences. …” Alito said from the bench. “But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?”

Justice Elena Kagan, one the markedly liberal justices, questioned the way the law was “gerrymandered” to target a select group for the content of their speech.

“Because if it has been gerrymandered, that’s a serious issue,” she stated. “In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”

The question to be resolved in California is about free speech, not abortion.

Laxalt did join a 25-state amicus brief a year ago defending a Texas law banning “dismemberment” abortions, in which fetuses are torn apart in the womb.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra. (AP pix).

SCOTUS reins in WOTUS abuse … somewhat

The U.S. Supreme Court (SCOTUS) Tuesday acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

Muddy hoof print (Getty Images)

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps “include land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Paul Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama Administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama Administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House passed legislation nearly a year ago that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.