A federal court has created government policy, in flagrant violation of the US Constitution.
Then Court of Appeals Judge, now Supreme Court Associate Justice Sonia Sotomayor, in an address to Duke University Law School 2005.
Back in college, I took an excellent constitutional law course. One reason it was so good was the professor allowed a great amount of debate. A point he made occasionally that this case made me think of, “The question is this. Would you rather rule by the majority, or rule by nine lawyers in Washington DC.”
A simple fact he brought out is the Supreme Court receives in one year over 7, 000 cases for review. It hears 100-150 in any give term. Most of those 7, 000 cases come from the 13 federal courts of appeal. As most request for review will be denied, the courts of appeals are very significant. What they rule stands. That is what makes this case very troubling.
The 4th Circuit Court of Appeals created government policy. It said state insurance policies (likely Medicaid soon) must cover an elective surgery, sex change, and the follow up. From the article:
Court says state health-care plans can’t exclude gender-affirming surgery
A federal appellate court in Richmond became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.
The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment.
Judge Roger L. Gregory, an appointee of President Bill Clinton, wrote for the majority that the restrictions were “obviously discriminatory” based on both sex and gender.
“In this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it.”
No Mr. Gregory, gender dysphoria is a mental disorder, not a physiological one. Countless children, as they grow (particularly when they hit puberty) have questions and doubts of who, and what, they are. That has been going on since the beginning of time. We have “treatments” for that, first of which are, get this, parents. And yes, councilors, clergy, other phycological services, to help a child through the difficult phase of growing up.
But you are missing the bigger point. Sex change surgery is elective surgery, not required to live. I paid for my Radial Keratotomy vision correction. Should taxpayers have provided me a medical procedures no needed for me to live. Having lived with glasses (20/400 vision) since I was 13, it was a life changer. But I’d never believe anyone but me should pay for it.
The majority ruled that West Virginia’s policy also violated the Affordable Care Act’s anti-discrimination provision, a finding that has broad implications for other states’ Medicaid programs.
Not surprised they should say that. Obamacare is blatantly unconstitutional, Mr. Robert’s pretzel logic notwithstanding.
I found an interesting note from the dissenting opinion. “Judge Jay Richardson, a Trump appointee, wrote that there was no role for the federal court in policing what treatments health-care plans decide to cover.”
What a concept! This is covering state funded health insurance policies paid for by the taxpayers. It is up the employer/customer (the state) and the insurance company to agree on the policy, what it will provide, the cost, etc. If you don’t like the policy, fine, go get another one. But it’s not up for bureaucrats, or bureaucrats with juris doctorate degrees and black robes to unilaterally change constitutional separation of powers.
This arrogant ruling (yes, that is the right term) brings up an issue that has been dormant for far too long. Since the beginning of the republic, there has been a tension between the executive and legislative branches over who is first among equals. The congress has the power of the purse and is directly elected by the people. The president executes the decisions of the congress (as set by the budget, as they fund (in theory) what is supposed to be executed. But the chief executive has significant power under his own.
The ebb and flow of who is more powerful, the congress or the president, is a policy and discussion to have. What is not for debate is who is least among equals, the judicial branch. Their power is very limited (see Article III of the Constitution), it only has one identified member (the Chief Justice of the United States) and is not accountable to the people like the elected people in the other branches. Power unchecked is a recipe for abuse.
Exaggeration? In Plessy v. Ferguson (1896), eight justices (one abstained) ruled discrimination by race was not unconstitutional! Did these men every read the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In Korematsu v. United States (1944), the Supreme Court allowed the federal government to forcibly move Japanese Americans and Americans of Japanese descent from their homes (mainly on the west coast), often with just what they could carry with them. Fidel Castro may have gotten an idea from FDR. At least these people (and descendants) were given an apology and limited reparations.
Not just with the judicial system, Congress has abandoned its duty to make the laws to supervise the bureaucracy. Countless regulations are issued yearly by bureaucracies in the federal government with the power of law. However, you cannot understand when and if you are in violation, what caused the infraction, etc. If I have one dream for a future Republican administration, it is to limit the ability of any federal agency to enact regulations without the direct approval of the Congress. The EPA, OSHA, etc. do not exist without the approval of the Congress and President. And they have no power unless is it specifically give to them by the representatives of the people.
But back to this ruling, judicial oligarchs set law by fiat, the stroke of a pen. They believe they will not be checked in any manner, and they have good reason for that. The Supreme Court will not likely go into this unless there are conflicting rulings from the courts of appeals. Congress must act. They can strip specific areas for review by the judicial branch, reduce the number of courts, limit their funding, etc. (Article I). Judges need to understand they are not there to rule over the American people. History has shown their critical errors and deliberate abuses (see this case, Roe v Wade, the Obamacare rulings). It is time for the representatives of the people to put a rein on the abuses of unelected judges.
Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.
Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.
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